EXHIBIT 10.34
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
▇▇▇▇▇ OIL OF LOUISIANA, INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("SELLER")
- AND -
▇▇▇-▇▇▇▇▇, INC., A LOUISIANA CORPORATION,
HEREIN REPRESENTED BY ITS DULY AUTHORIZED
PRESIDENT, ▇▇▇▇▇▇▇▇ ▇. SWATI
▇▇▇▇ ▇▇▇ ▇▇▇.
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
OR ITS ASSIGNS
("PURCHASER")
APRIL 30, 2001
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (the "Agreement") dated this 30th day of
April, 2001, is made and entered into by and between ▇▇▇-▇▇▇▇▇, INC., A
LOUISIANA CORPORATION, HEREIN REPRESENTED BY ITS DULY AUTHORIZED PRESIDENT,
▇▇▇▇▇▇▇▇ ▇. SWATI, OR ITS ASSIGNS, hereinafter referred to as "PURCHASER", and
▇▇▇▇▇ OIL OF LOUISIANA, INC., a Louisiana Corporation, hereinafter referred to
as "SELLER".
RECITALS
WHEREAS, SELLER is the owner of various parcels of real property, various
items of personal property, including equipment, furniture and fixtures and
holders of various leasehold interests in real and personal property, all of
which is occupied and or being used in the retail convenience store business
(hereinafter referred to as, "business assets");
Page 1 of 16 Pages
WHEREAS, SELLER desires to sell and PURCHASER desires to purchase certain
business assets on the terms and subject to the conditions set forth in this
Asset Purchase Agreement;
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Agreement to Purchase. On the Closing Date, as hereinafter defined, and
subject to the terms and conditions of this Agreement, Seller shall sell,
convey, grant, assign, transfer and deliver to Purchaser, and Purchaser shall
buy, accept and receive from Seller, all of the Seller's right, title and
interest in and to the following:
A. Real Property. The real property described in Exhibit "A" attached
hereto, together with all buildings, fixtures and other improvements
located thereon and all rights, easements, hereditaments and
appurtenances related thereto (collectively the "Real Property").
B. Leasehold Interest. SELLER'S leasehold interest in the Leases,
together with all of SELLER'S right, title and interest in and
possession of all improvements, buildings and fixtures covered by the
Leases, a copy of which are attached hereto as Exhibit "B".
C. Machinery and Equipment. The machinery, equipment, furniture and
fixtures, and transportation equipment and other personal property
listed in Exhibit "C" attached hereto (the "Machinery and Equipment").
All machinery, equipment, tanks, pumps, furniture and fixtures and
other personal property at the ▇▇▇▇▇ Bulk Plant facility which is
located at ▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
D. Contract Rights. The contract rights identified in Exhibit "D"
attached hereto (the "Contract Rights").
E. Trade Name and Trademarks. Trade names and trademarks, attached hereto
as Exhibit "E".
F. Licenses and Permits. Licenses and permits to the extent transferable,
and relinquishment thereof to the extent non-transferable. Seller
agrees to enter into a Management Agreement
Page 2 of 16 Pages
which shall allow Purchasers to sell beer on Seller's permits/licenses
until Purchasers obtain a permit/license for such purposes. Purchasers
agree to make application with proper agencies for all permits and
licenses and further agree to indemnify Seller for any and all claims,
damages, fines, penalties or causes of action which may arise as a
result of Purchasers operating under Seller's permits/licenses.
G. Retail Inventory. The term "Inventory" consists of (i) all salable
inventory owned by SELLERS which is to be identified prior to closing
and added to this Agreement prior to closing as Exhibit "F" (the
"Inventory"); (ii) all wholesale inventory, specifically the inventory
at the bulk plant facility which is located on the premises described
as ▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; and (iii) shall
include all merchandise including gasoline located at retail
facilities as described in Exhibits "A" and "B".
H. Manufacturer Warranties. To the extent transferable by SELLERS, all
warranties of any manufacturer, supplier or vendor with respect to any
of the property to be sold to PURCHASERS hereunder.
The Real Property Machinery and Equipment, Inventory and Contract Rights
are herein sometimes called the "Non-Inventory Business Assets."
Notwithstanding anything in this Agreement to the contrary, there shall be
excluded from the assets, properties, rights (contractual and otherwise) and
business of Seller to be conveyed, sold, transferred, assigned and delivered to
Purchasers under this Agreement (i) all cash and cash equivalents and investment
securities; (ii) all tax refunds paid or payable to Seller; (iii) all corporate
minute books, stock records, tax returns and supporting schedules, books of
original financial entry and internal accounting documents and records (all of
which shall be subject to Purchasers' right to inspect and copy); and (iv) those
assets and properties identified on Exhibit "F" hereto (collectively, the
"Excluded Assets").
In addition, the extent that the assignment hereunder of any of the Non-
Inventory Business Assets shall require the consent of any other party (or in
the event that any of the Non-Inventory Business Assets shall be non-
assignable), neither this Agreement, nor any action taken pursuant to its
provisions shall constitute an assignment or an agreement to assign if such
assignment or attempted assignment would constitute a breach thereof or result
in the loss or diminution thereof; provided, however, that in each such case,
Seller shall use its best efforts to obtain the consents of such other party to
an assignment to Purchasers. If such consent is not obtained, Seller shall
cooperate with Purchasers in any reasonable arrangement designed to provide for
Purchasers the full benefits of any such Business Assets including, without
limitation, enforcement, for the account and benefit of Purchasers, of any and
all rights of any
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Seller against any other person with respect to any such Business Assets;
provided, however, that all expenses related thereto shall be borne by
Purchasers.
2. Closing. Subject to the fulfillment of the closing conditions contained
in this Agreement, the closing (the "Closing") shall take place no later than
May 15, 2001, at 10:00 o'clock a.m. at the Law Offices of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇., ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. PURCHASER shall wire
transfer EIGHT HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($850,000.00) to be
deemed the deposit with Lawyer's Title Company, c/o ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇, 617
Caroline, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇. This contract is not an ▇▇▇▇▇▇▇ money contract
but one of specific performance.
3. Conveyance of Real Property.
A. Owned Property. Conveyance of the Real Property owned by the SELLER
shall be by the SELLER'S warranty deed, free and clear of all liens
and encumbrances whatsoever, except as to current year's taxes,
easements or rights of way, apparent or as of record, zoning and
ordinances, and except as to such other encumbrances which may be
acceptable to PURCHASERS. Any taxes on the Real Property being
transferred hereunder, for the calendar year 2000, shall be paid by
the SELLER by giving PURCHASERS a credit at the time of Closing,
unless the SELLER shall present acceptable proof that such 2000 taxes
have been paid. Any Real Property taxes for the calendar year 2001
shall be prorated to the date of Closing and a credit shall be given
PURCHASERS in such prorated amount, and PURCHASERS agree to pay such
taxes when they become due and owing and saving the SELLER harmless
therefrom.
B. Lease Property. Conveyance of the real property currently being leased
by the SELLER shall be by the SELLER'S properly executed Assignments
in accordance with and subject to the terms and conditions of the
underlying leases.
C. Survey. SELLER shall provide, at its expense, a current survey to the
real property being transferred pursuant to the terms of this Asset
Purchase Agreement (In&Out#4, ▇▇▇▇ ▇▇▇. ▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
and In&Out #5, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇) on May 1, 2001,
at 4:30 o'clock p.m.
4. Conveyance of Machinery, Equipment and Contract Rights. Subject to the
conditions set forth in this Agreement, the SELLER will assign and transfer to
PURCHASERS all of its right, title and interest in and to all leases, contract,
franchise agreements and all
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personal property owned by the SELLER which is not specifically excluded herein,
by properly executed assignments, transfer documents, bills of sale and other
documents of title.
5. Purchase Price. The purchase price (the "Purchase Price") for the Non-
Inventory Business Assets and inventory shall be EIGHT HUNDRED FIFTY THOUSAND
AND NO/100 DOLLARS ($850,000.00), together with reimbursement of $3,000.00 for
environmental reports and the inventory at time of closing to be valued below.
6. Payment of Purchase Price. Payment, pursuant to Paragraph 5 above, shall
be made to SELLER at closing by the PURCHASERS, as follows:
A. Cash/Certified Funds. The sum of $850,000.00 shall be paid by
PURCHASER in cash (U.S. Currency) or certified funds payable to the
SELLER for the Non-Inventory Business Assets.
B. Payment for Inventory. Payment for inventory shall be made by check
drawn on Purchaser's checking account, which check shall be converted
to a cashier's check the day of closing.
7. Inventory. The PURCHASERS and SELLER shall conduct a joint inventory
count of the inventory (hereinafter referred to as the "Joint Inventory Count")
on or before the Closing Date. The joint inventory count shall be conducted
using the SELLER'S current inventory count procedures and/or a physical count
procedure and said inventory shall be valued on the following basis:
All inventory, excluding gasoline, diesel fuels, cigarettes, lotto and
supplies, shall be counted at retail and discounted 35%. All
gasoline, diesel fuels, cigarettes, lotto and supplies shall be priced
at cost.
8. Proration of Income and Expenses. Income and expenses (including rents,
utilities, employee compensation, licenses, operating permits, and other similar
items) with respect to the Business, shall be prorated and allocated between the
parties as of the Closing Date. To the extent practical a reconciliation and
payment of prorated items shall take place at the Closing, and to the extent not
practical reconciliation and payment shall be made within thirty (30) days
following the Closing Date.
9. Compliance with Petroleum Marketing Practices Act. As to each contract
transferred to PURCHASER pursuant to this Agreement, which constitutes a
"franchise" or evidences a "franchise relationship" as those terms are defined
in the federal Petroleum Marketing Practices Act (the "PMPA") or any applicable
state law, PURCHASER agrees that upon expiration of the current term of any such
contract, PURCHASER shall offer, in good faith, to each franchisee a new
"franchise" on terms and conditions which are not discriminatory to the
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franchisee as compared to franchises then currently being offered by PURCHASER
or franchises then in effect with respect to which PURCHASER is the franchiser;
provided that PURCHASER shall have no obligation to offer a new "franchise" to
such franchisee if PURCHASER has a valid ground for termination of the existing
"franchise" or nonrenewal of the existing "franchise relationship" under the
PMPA or applicable state law, and PURCHASER gives such notice of termination or
nonrenewal to the franchisee as may be required by the PMPA or any applicable
state law.
10. Representations and Warranties of the Seller. The SELLER represents and
warrants to PURCHASER that the representations and warranties contained in this
Section are true and complete as of the date of this Agreement and will be
correct and complete as of the Closing Date.
A. Organization. SELLER is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Louisiana. SELLER has full corporate power and authority to make,
execute and deliver this Agreement and to perform its obligations
hereunder. The execution, delivery and performance of this Agreement
have been duly authorized and approved by all necessary and proper
corporate proceedings, including but not limited to, approved by the
Board of Directors and Sole Stockholder of SELLER.
B. Title. The SELLER has good and marketable title to the Business
Assets, free and clear of all claims, liens, security interests and
other encumbrances, except as set forth on attached Exhibit "G".
C. Litigation. Subject only to the conditions set forth in Paragraph 13
there is no litigation, proceeding, unpaid judgment or investigation,
pending or threatened, against the Business Assets or. the SELLER that
would, if adversely determined, affect the validity of this Agreement
or the ability of the SELLER to complete the transactions contemplated
hereby.
D. Authorization. Except as set forth on Exhibit "G" hereto, the
execution and delivery of this Agreement, and the completion of the
transactions contemplated hereby, do not violate or conflict with the
articles of incorporation or by-laws of SELLER or any law to which
SELLER is subject or any material agreement by which the SELLER or the
Non-Inventory Business Assets are bound. Except as set forth on
Exhibit G hereto, no consent of any third parties or governmental
authorities is required to complete the transactions contemplated by
this Agreement.
Page 6 of 16 Pages
E. Tax Matters. All tax returns and reports of any nature relating to the
Business or the Business Assets have been timely and properly filed
with the appropriate governmental agency and all taxes required by law
to be paid by SELLER have been paid prior to delinquency. SELLER has
no knowledge of any pending or threatened proposed tax adjustments or
deficiencies with respect to any previously filed tax return or report
which related to the Business or to the Non-Inventory Business Assets.
F. Compliance with Laws. Subject to the conditions set forth in Paragraph
15 SELLER is not, to its knowledge, in violation of, and have not
heretofore violated, any statute, rule, regulation, ordinance, order
or other law applicable to the SELLER or the Business Assets. To the
knowledge of SELLER and subject to the provisions of Paragraph 15, the
use of the Non-Inventory Business Assets by SELLER in the Business
complies with all applicable building, zoning, fire and occupational
health and safety statutes, rules, regulations, ordinances, orders and
other laws, and no notice of any violation with respect thereto has
been received by SELLER, or to SELLER'S knowledge, is threatened.
G. Financial Matters. SELLER has delivered or will make available to the
PURCHASER the following unaudited financial statements of Seller: The
Seller's Profit and Loss Statements on individual stores as of
09/30/00 and Statements through October 30. 2000 (the "Financial
Statements"), The Financial Statements are true, correct, and
complete, and present fairly the financial position and results of
operation of SELLER, as of the dates and for the periods presents, in
accordance with generally accepted accounting principles.
H. Liens. No work has been performed nor any material provided to the
SELLER during the one hundred twenty (120) days preceding Closing
which would give rise to any mechanics, materialmen, artisans or other
liens.
I. No Undisclosed Liabilities. Except as set forth on Exhibit G or as
expressly disclosed in this Agreement or reflected or reserved against
in the Financial Statements and subject to the conditions set forth in
Paragraph 13, the SELLER has no debts, liabilities or obligations of
any nature (whether accrued or unaccrued, fixed, contingent or
otherwise), except (i) accounts payable to trade
Page 7 of 16 Pages
creditors and other current liabilities incurred in the ordinary
course of business since the date of the Financial Statement or (ii)
those arising under agreements or other commitments identified in any
exhibit or schedule hereto including, without limitation, permits,
contracts and any real property or personal property lease.
J. Condition of the Non-Inventory Business Assets. Seller warrants that
all business assets being sold are at the location described and is
being conveyed on a AS IS and WHERE IS basis with no warranty
expressed or implied, except that all assets are in good working
condition at time of closing. The inventory items included in this
sale are, in all material respects, in good and salable condition. In
the reasonable business judgment of SELLER, the Non-Inventory Business
Assets comprise all material assets necessary to conduct the Business
as presently conducted by SELLERS.
K. Inventory. The inventory items to be sold to PURCHASER pursuant to the
terms of this agreement are of good and reliable quality, free from
known damage or defects and to the actual knowledge of the SELLER are
fit for use or resale in the ordinary course of business at normal
prices. SELLER has conducted its inventory management (i.e., its
purchasing, housing, maintenance and sale of inventory items)
consistent with good and conservative business practices in the manner
to which SELLER has historically managed its inventory operation in
the ordinary course of its business.
L. Right of Possession. SELLER has the exclusive right to access and
possession of the Real Property, and the property subject to the
Leases, without interference from any third party. SELLER has the
unencumbered right to use all accesses to and from the Real Property,
and other subject to the Leases, to public thoroughfares as such
accesses are presently configured and utilized.
M. Disclosure. Subject to the conditions set forth in Paragraph 13, all
facts material to the Non-Inventory Business Assets and the business
have been disclosed herein. No representation or warranty made by
SELLER in this Agreement, and no statement made by SELLER to PURCHASER
in connection with the transactions contemplated hereby, contains any
untrue statement of a material fact, or omits to state any material
facts necessary to make the statements herein or therein not
misleading.
Page 8 of 16 Pages
N. Binding Effect. This Agreement has been duly executed and delivered by
the SELLER and is a valid and binding agreement of SELLER, enforceable
against SELLER in accordance with its terms.
11. Representations and Warranties of Purchasers. PURCHASER represents and
warrants to the SELLER that the representations and warranties contained in this
Section are correct and complete as of the date of this Agreement and will be
correct and complete as of the Closing.
A. Organization. PURCHASER is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Louisiana
and will be qualified to do business and in good standing in the State
of Louisiana at time of closing. PURCHASER has full corporate power
and authority to make, execute and deliver this Agreement, and to
perform its obligations hereunder. The execution, delivery and
performance of this Agreement have been duly authorized and approved
by all necessary and proper corporate proceedings, including but not
limited to approved by the Board of Directors of PURCHASER.
B. Litigation. There is no litigation, proceeding or investigation,
pending or threatened, against PURCHASER that would, if adversely
determined, affect the validity of this Agreement or the ability of
PURCHASER to complete the transactions contemplated hereby.
C. Authorization. The execution and delivery of this Agreement, and the
completion of the transactions contemplated hereby, do not violate or
conflict with the articles of incorporation or by-laws of PURCHASER,
or any law to which PURCHASER is bound. No consent of any third
parties or governmental authorities is required to complete the
transactions contemplated by this Agreement.
D. Binding Effect. This Agreement has been duly executed and delivered by
the PURCHASER and is a valid and binding agreement of PURCHASER,
enforceable against PURCHASER in accordance with its terms.
Page 9 of 16 Pages
12. The Seller's Accounts. PURCHASER is not acquiring any interest in
the SELLER'S accounts receivable and/or bank accounts, and PURCHASER shall have
no responsibility for collection of any of the SELLER'S accounts receivable.
13. Environmental.
A. Underground Storage Tanks. Seller represents that the underground
storage tanks are registered with the Louisiana Department of
Environmental Quality and are currently in compliance with all State
and Federal regulations. Seller makes no further warranties, expressed
or implied, and Purchasers acknowledge and agree that Purchasers have
not relied upon any representation, statements or warranty of Seller,
other than as expressed in this Agreement. Seller agrees to provide
all files and records regarding compliance with Louisiana department
of Environmental Quality. All such files and records, including the
phase one reports, shall be delivered at execution of this agreement
and PURCHASER shall have until 4:30 o'clock p.m., Friday, May 4, 2001,
to review same.
B. Indemnification and Hold Harmless. Upon Closing, PURCHASER, and its
respective successors and assigns (collectively, "Indemnitor"), shall
each protect, exonerate, indemnify, defend and hold harmless, for an
unlimited duration of time, SELLER, its employees, directors,
officers, agents, heirs, personal representatives, successors and
assigns (each individually and all collectively, an "Indemnitee"),
from and against any and all liabilities, losses, claims, demands,
requests for investigation, remediation or corrective action,
penalties, fines, settlements, damages (including foreseeable and
unforeseeable consequential damages and punitive damages), response,
remedial, or inspection costs, and any expenses (including, without
limitation, attorney and consultant fees, laboratory costs, and
litigation costs) of whatever kind or nature, known or unknown,
contingent or otherwise, which are incurred by or asserted against
Indemnitee after the date of closing this Agreement and which arise
from or are alleged to arise from (1.) the presence of any Hazardous
Materials in, on or under the Non-Inventory Business Assets including,
without limitation, the improvements thereon and the soils and ground
water thereof, (2.) the migration of any Hazardous Materials onto the
Non-Inventory Business Assets from any other property or onto any
other property from the Non-Inventory Business Assets (3.) the
disposal or release of Hazardous Materials on, in or under the Non-
Inventory Business Assets by any person or entity, whether known or
unknown, suspected or unsuspected, or foreseen or unforeseen as of the
date hereof, (4.) the removal, treatment, remediation, or disposal of
any Hazardous Materials on or from the Non-Inventory Business Assets,
and (5.) any personal injuries or property damages, real or personal,
any violations of any Environmental Law, and any lawsuit brought or
threatened, settlement reached, or governmental order arising
Page 10 of 16 Pages
out of or alleged to arise out of the presence of any Hazardous
Materials on, in, or under the Non-Inventory Business Assets or the
migration of any Hazardous Materials onto any other property from the
Non-Inventory Business Assets which have arisen before or arise after
the Closing of this transaction.
14. Covenants of the Purchaser. PURCHASER covenants and agrees with the
SELLER as follows:
A. Contact with Customers and Vendors. Between the date hereof and the
Closing Date, PURCHASER agrees that it will not make any inquiries or
discussion of this transaction to SELLER'S suppliers, vendors,
customers or employees without SELLER'S prior consent which consent
shall not be unreasonably withheld; provided, however, SELLER agrees
to cooperate with PURCHASER in this regard in connection with
PURCHASER'S due diligence for purposes of fully disclosing material
facts concerning the Non-Inventory Business Assets and the business.
SELLER shall notify Fina and Shell Lubricants of the pending sale
immediately so that their consent to the anticipated transfer to
PURCHASER can be obtained.
B. Duty to Inform. PURCHASER will inform the SELLER promptly of any
matter which comes to its attention that would make any of the
PURCHASER'S representations or warranties made herein untrue in any
material respect.
C. Covenant Against Disclosure. PURCHASER shall not (a) disclose to any
person, association, firm, corporation or other entity in any manner,
directly or indirectly, any confidential information or data relevant
to the business of SELLER, whether of a technical or commercial
nature, or (b) use, or permit or assist, by acquiescence or otherwise,
any person, association, firm, corporation or other entity to use, in
any manner, directly or indirectly, any such information or data,
excepting only use of such data or information as is at the time
generally known to the public and that did not become generally known
through any breach by PURCHASER of any provision of this Section 16C.
PURCHASER acknowledges that SELLER'S remedy at law for any breach of
PURCHASER'S obligations under this Section 16C would be Inadequate,
and agrees and consents that temporary and permanent injunctive relief
may be granted in a proceeding that may be brought to enforce any
provision of this Section 16C without the necessity of proof of actual
damages.
Page 11 of 16 Pages
15. Covenants of the Seller. SELLER covenants and agrees with the PURCHASER
as follows:
A. Conduct of Business. Beginning on the date of this Agreement and
continuing through the Closing Date, SELLER covenants and agrees (1)
that the business shall be carried on only in the ordinary course,
consistent in all material respects with past practices; (2) that none
of the Business Assets shall be sold, transferred or otherwise
disposed of or encumbered or otherwise have any lien to be placed
thereon, other than dispositions of inventory made in the ordinary
course of business; (3) that it will keep the PURCHASERS advised of
any material change in the Non-Inventory Business Assets or the
business; and (4) that it will not take any action which would (i)
constitute a default under the Leases, or the contracts identified on
Exhibits "B" and "D"; (ii) impair any Licenses or Permits; or
otherwise be inconsistent with the provisions of this Agreement.
B. Information. SELLER will give to PURCHASER and to PURCHASER'S
officers, accountants, counsel and other representatives or advisors
reasonable access, during normal business hours throughout the period
prior to the Closing Date, to the Non-Inventory Business Assets.
SELLER will furnish to PURCHASER during such period all relevant
information concerning the Business and the Non-Inventory Business
Assets as the PURCHASER may reasonably request; provided, however,
that (i) such due diligence shall not disrupt the business of SELLER
and (ii) if the Closing shall not occur, PURCHASER shall promptly
return all such due diligence materials to SELLER.
C. Consents. SELLER shall use its reasonable best effort to obtain all
necessary consents and approvals from lessors and other third parties
required for consummation of the transactions contemplated by this
Agreement.
D. Duty to Inform. SELLER will inform the PURCHASER promptly of any
matter which comes to its attention that would make any of the
SELLER'S representations or warranties made herein untrue in any
material respect.
16. Documents to be Provided at Closing.
Page 12 of 16 Pages
A. Seller's Documents. At the Closing, the SELLER shall deliver to
PURCHASER the following:
(1) Owner's Title Insurance Policy. A prepaid Owner's Title Insurance
Policy in the amount of $850,000.00 for both the real property set
forth in Exhibit "A" and the leased property set forth in Exhibit "B".
In the event the title insurance company requires individual policies
for each location, SELLER shall be responsible for same. Any
additional costs incurred due to PURCHASER designating more than one
purchaser in the title policies shall be borne by PURCHASER.
(2) Warranty Deed(s). A warranty deed conveying good and marketable title
to the Real Property owned by the SELLER.
(3) ▇▇▇▇ of Sale(s). A ▇▇▇▇ of sale conveying title to PURCHASER to the
machinery and equipment and the inventory.
(4) Resolution(s). A certified copy of resolutions by SELLER'S Board of
Directors and sole stockholder authorizing the execution and
performance of this Agreement.
(5) Other Conveyance Instruments. All further conveyances, assignments,
confirmations, satisfactions, releases, powers of attorney,
instruments of further assurance, approvals, consents and any and all
such further instruments and documents as may be reasonably necessary,
expedient or proper in the opinion of PURCHASERS in order to complete
any and al conveyances, transfers, sales and assignments herein
provided.
(6) Assignment(s) and Assumption(s) of Contract Rights. An Assignment and
Assumption of Contract Rights.
(7) Release(s) of Liens. Releases of all liens, security interests and
other encumbrances on the Non-Inventory Business Assets except those
assumed by the Purchasers under this Agreement.
(8) Lease Extension. SELLER shall deliver a minimum 5-year lease extension
with a 5-year option on In&Out #7, ▇▇▇ ▇▇▇▇ ▇-▇▇, ▇▇▇▇▇, ▇▇▇▇▇.
B. Purchaser's Documents. At the Closing, the PURCHASER shall deliver to
SELLER the following:
(1) Purchase Price. The sum of money described in Paragraph 6 as the
Purchase Price, less any adjustments thereto under the terms of this
Agreement as described in Paragraph 7 (Inventory), shall be payable in
cash or certified funds.
Page 13 of 16 Pages
(2) Assumption(s) of Leases and Contracts. An assumption of leases,
contracts and other liabilities as provided for in this Agreement.
(3) Resolutions. Resolutions of Directors authorizing this Agreement.
17. Expenses. Except as otherwise expressly provided for herein, SELLER and
PURCHASER will pay all of their own expenses (including attorneys' and accounts'
fees) in connection with the negotiation of this Agreement, the performance of
their respective obligations hereunder and the consummation of the transactions
contemplated by this Agreement.
18. Miscellaneous. No waiver and no modification or amendment of this
Agreement shall be valid unless the same is in writing and signed by the party
against which the enforcement of such modification or amendment is sought. This
Agreement, including all documents, agreements and instruments delivered
pursuant hereto, constitutes the entire agreement between the parties and
supersedes any prior understandings, agreements, or representations by or
between the parties, written or oral, that may have related in any way to the
subject matter hereof. This Agreement shall be binding upon and inure to the
benefit of the parties named herein and their respective successors and
permitted assigns.
19. Notices. All notices, demands, requests and other communications under
this Agreement shall be in writing and shall be deemed properly served if
delivered by hand to the party to whose attention it is directed or if sent by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
A. IF INTENDED FOR THE SELLERS:
▇▇▇▇▇ Oil of Louisiana, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With an additional copy to:
▇▇▇▇▇ SYSTEMS, INC.
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
B. IF INTENDED FOR PURCHASER:
▇▇▇-▇▇▇▇▇, INC.
▇▇▇▇ ▇▇▇ ▇▇▇.
Page 14 of 16 Pages
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
c/o ▇▇▇▇▇▇▇▇ ▇. Swati
With an additional copy to:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Or such other address of which any party entitled to receive notice
hereunder designates to the other in writing.
20. Governing Law. The validity, meaning and effect of this Agreement shall
be determined in accordance with the laws of the State of Louisiana applicable
to contracts made and to be performed in that state.
21. Captions. The captions in this Agreement are inserted for convenience
of reference only and in no way define, describe or limit the scope or intent of
this Agreement or any of the provisions hereof.
22. Assignment. The rights, obligations and duties of the parties hereto
shall not be assignable or otherwise transferable without the prior written
consent of the other party.
23. Rights and Remedies Cumulative. The rights and remedies expressed
herein are cumulative and not exclusive of any rights and remedies otherwise
available.
24. Incorporation by Reference. All exhibits and documents referred to in
this Agreement shall be deemed incorporated herein by any reference thereto as
if fully set out.
25. Third Party Beneficiaries. This agreement is not intended to create any
rights for the benefit of any third party.
26. Severability. Should any part or provision contained in this Agreement
be rendered or declared invalid by reason of any existing or subsequently
enacted legislation or by any decree of a court of competent jurisdiction, the
remaining provisions shall nevertheless remain in full force and effect to the
maximum extent permitted by law.
27. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
28. Seller's Commercial Accounts. SELLER shall immediately disclose the
names of all commercial accounts that it may have as customers and the terms of
each account; however, the accounts receivable arising from transactions prior
to time of closing are not being transferred.
Page 15 of 16 Pages
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
SELLER:
▇▇▇▇▇ OIL OF LOUISIANA, INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇.▇. ▇▇▇▇▇, ▇▇.
_______________________________ By:_________________________________
WITNESS ▇.▇. ▇▇▇▇▇, ▇▇., Its President
PURCHASER:
▇▇▇-▇▇▇▇▇, INC.
▇▇▇▇ ▇▇▇ ▇▇▇.
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. Swati
_______________________________ By:__________________________________
WITNESS ▇▇▇▇▇▇▇▇ ▇. Swati, President
Page 16 of 16 Pages
