Exhibit 10.2
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement"), dated March 1, 2006, is
by and among MTR of Georgia, Inc., a Tennessee corporation (the "Purchaser"),
XxxxxXxx Technologies of Georgia, Inc., a Georgia corporation (the "Seller"),
and, joining in the execution hereof for the limited purposes hereinafter set
forth, XxxxxXxx Technologies, Inc., a Delaware corporation (the "Parent").
RECITAL OF FACTS
The following recitals are set forth for the purpose of stating the facts
and circumstances which form the background and basis for this Agreement:
[A] Seller engages in the business of collecting, transporting, processing
and disposing of waste tires (the "Business"), including the conduct of such
business in the State of Georgia.
[B] Seller wishes to sell and assign to Purchaser all of Seller's rights
and obligations under certain contracts with persons and entities in the State
of Georgia who supply waste tires to the Seller.
[C] Seller has agreed to sell and Purchaser has agreed to buy certain
assets owned by Seller which are used or useful in the operation of the Business
(the "Purchased Assets"), and Purchaser has agreed to accept and assume certain
liabilities of the Seller which are specifically identified herein.
[D] Seller has diligently reviewed its business operations and
specifically the financial results of its performance of the Contracts and the
use of the Purchased Assets, and Seller has determined that its business
operations relating to the performance of the Contracts and the use of the
Purchased Assets is not a profitable portion of its business, and it is in the
best interests of the Seller to dispose of the Contracts and the Purchased
Assets. As a result, the board of directors of Seller has come to the unanimous
conclusion that the consideration which Purchaser has agreed to pay, as set out
herein, is a fair and adequate consideration for such transfer.
AGREEMENTS OF THE PARTIES
In consideration of the above recitals and the mutual terms and conditions
set out herein, the Parties agree as follows:
ARTICLE I
SALE OF ASSETS AND ASSUMPTION OF LIABILITIES
Section 1.1 Sale of Assets.
(a) Purchased Assets. Seller hereby sells, assigns, transfers, conveys and
delivers to Purchaser, and Purchaser hereby accepts, purchases and agrees to
assume, all of Seller's right, title and interest in and to all of the Purchased
Assets specifically described on Schedule A attached hereto on the Closing Date
(as hereinafter defined) ("Purchased Assets"), but excluding any assets,
properties, agreements and rights of Seller not specifically identified on
Schedule A (collectively, "Excluded Assets").
(b) Contracts. Seller hereby sells, assigns, transfers, conveys and
delivers to Purchaser, and Purchaser hereby accepts, purchases and agrees to
assume, all of Seller's right, title and interest in and to all of the contracts
(the "Contracts") related to the Seller's Business to which Seller is a party
and with respect to any third party being serviced out of the Xxxxxxx, Xxxxxxx
facility, except for any contracts specifically described on Schedule B attached
hereto on the Closing Date (as hereinafter defined).
(c) Certain Consents to Assignment. To the extent that the assignment of
any Contract, the benefit of which is to be acquired by Purchaser pursuant to
this Agreement requires the consent of any Person not a Party to this Agreement
or any of their Affiliates, this Agreement shall not constitute a contract to
assign or assume the same until such consent is obtained. Seller and Purchaser
shall use reasonable efforts to obtain any consent necessary to any such
assignment. If any such consent is not obtained this Agreement shall not
constitute or be deemed to be a contract to assign or assume the same if an
attempted assignment without such consent, approval or waiver would constitute a
breach of such right or agreement or create in any party thereto the right or
power to cancel or terminate such right or agreement.
Section 1.2 Assumption of Liabilities.
(a) Assumed Liabilities. Purchaser hereby undertakes, assumes and agrees
to perform and otherwise pay, satisfy and discharge only those liabilities (the
"Assumed Liabilities") expressly set forth on Schedule C and those related
directly to the performance of the obligations of the Seller under the Contracts
and no other liabilities are assumed by Purchaser, either explicitly or by
operation of law.
(b) Excluded Liabilities.Purchaser shall not assume, nor does Purchaser
agree to pay, any debts, liabilities or obligations of any kind or nature
whatsoever not specifically set forth on Schedule C (collectively, "Excluded
Liabilities"). All Excluded Liabilities shall be the responsibility of Seller.
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Section 1.3 Closing. The closing of the purchase and sale of the Purchased
Assets (the "Closing") shall take place at a mutually agreed upon location upon
the execution of this Agreement or upon such other date as may be mutually
agreed (the "Closing Date"), but shall be within ten (10) business days after
the satisfaction of the conditions and obligations of the parties as stated
herein.
Section 1.4 Closing Obligations of Seller. At the Closing, Seller shall:
(a) Deliver to Purchaser title to and possession of the Purchased Assets;
(b) Execute and deliver to Purchaser, as appropriate, one or more bills of
sale, instruments of assignment, certificates of title, registrations, licenses
and other documents as may be reasonably necessary or appropriate (a) to vest in
Purchaser title to all of the Purchased Assets, free and clear of any and all
Liens, and (b) to carry out the transactions contemplated by this Agreement.
(c) Deliver to Purchaser evidence, satisfactory to Purchaser in its sole
discretion, of releases of any and all Liens relating to the Purchased Assets;
and
(d) Deliver to Purchaser such other certificates and documents as may be
called for under this Agreement or as Purchaser shall reasonably request.
Section 1.5 Closing Obligations of Purchaser.
At the Closing, Purchaser shall deliver to Seller [i] the Purchase Price
and [ii] one or more instruments reasonably satisfactory with the Seller
assuming the Assumed Liabilities, including, without limitation, an instrument
of assignment and assumption of each of the Contracts (the "Assignment and
Assumption Agreement").
Section 1.6 The Purchase Price.
(a) Subject to and upon the terms and conditions set forth herein, as
consideration for the Purchased Assets, the Purchaser agrees to and will assume
the Assumed Liabilities and will pay to Seller the sum of $250,000 in
immediately available funds (the "Purchase Price"), adjusted for the results of
a final reconciliation of amounts due each party by the other prior to the
Closing.
(b) The Purchase Price shall be allocated to and among the tangible and
intangible Purchased Assets as determined by Seller within 30 days after the
Closing, with reference to, and in accordance with, Section 1060 of the Internal
Revenue Code, the Treasury Department Regulations promulgated thereunder, and
IRS Form 8594. The Purchaser agrees to adopt such allocation for all purposes
(including tax and financial accounting purposes). The Seller and the Purchaser
further agree to file all tax returns (including amended returns and claims for
refunds) and information reports in a manner consistent with such allocation.
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Section 1.7 Further Cooperation.
(a) From time to time after the Closing, Seller at Purchaser's request and
without further consideration, agrees to execute and deliver or to cause to be
executed and delivered such other instruments of transfer as Purchaser may
reasonably request to transfer to Purchaser more effectively the right, title
and interest in or to the Purchased Assets, to confirm that Purchaser has not
assumed any of the Excluded Liabilities and to take or cause to be taken such
further or other action as may reasonably be necessary or appropriate in order
to effectuate the transactions contemplated by this Agreement. From time to time
after the Closing, Purchaser at Seller's request and without further
consideration, agrees to execute and deliver or to cause to be executed and
delivered such other instruments as Seller may reasonably request to confirm
that Purchaser has assumed all of the Assumed Liabilities and to take or cause
to be taken such further or other action as may reasonably be necessary or
appropriate in order to effectuate the transactions contemplated by this
Agreement. Seller agrees that if it receives checks or other forms of payment
representing monies due under any Contract for services performed by Purchaser
after the Closing, prior to depositing said payment in Seller's lockbox account
at BankNorth, the Seller will immediately forward such check or payments
properly endorsed (without depositing such payments) to Purchaser. In the event
that any such payment is deposited directly into such lockbox account, Seller
agrees to remit such payment to Purchaser within four days after such payment is
credited as "good funds' by Seller's bank. Purchaser agrees that if it receives
checks or other forms of payment representing monies due under any Contract for
services performed by Seller before the Closing, the Purchaser will immediately
forward such check or payments properly endorsed (without depositing such
payments) to Seller.
(b) Notwithstanding the foregoing, in connection with the Closing, Seller
shall be allowed to withdraw or cancel all performance bonds and similar
security it has in place with respect to any Contract, and Purchaser shall have
the sole responsibility to provide any replacement performance bonds or
security. Seller and Purchaser shall cooperate to establish an orderly
transition in such security, which shall not be longer than 60 days following
the Closing.
(c) Notwithstanding the foregoing, with regard to any Contract which will
be assigned to Purchaser at Closing and requires the consent of any third party
which has not been obtained by Closing, Purchaser may elect to accept such
Contract, but only on the condition that Seller and Purchaser will work together
in good faith to obtain such consent within 90 days after Closing.
Section 1.8 Termination of Section in Previous Agreement. The parties hereby
agree that Section 1.8 of the Asset Purchase Agreement between certain of the
parties, dated September 6, 2005, is herby terminated.
Section 1.9 Agreement Not to Compete - Seller.
(a) For the purposes of this Section, the following definitions shall
apply:
[1] "Business Activities" shall mean the business of collecting,
transporting, processing, or disposing of waste tires.
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[2] "Noncompete Period" shall mean the period beginning the
Closing Date and ending on the third anniversary of the
Closing Date.
[3] "Seller Related Party" shall mean Seller and any business,
firm, corporation or other entity in which Seller has a direct
or indirect financial interest and any employee, consultant,
agent of Seller (other than Xxxx Xxxxx), and shall also
include any person who owns more than 50% of the equity
ownership of Seller.
[4] "Seller Territory" shall mean the State of Georgia and any
contiguous state.
(b) No Seller Related Party shall, during the Noncompete Period, in any
manner, directly or by assisting others, engage in, have any equity or profit
interest in, or render services of any executive, administrative, supervisory,
marketing, production or consulting nature to any person, firm, corporation or
other entity that conducts or intends to conduct the Business Activities in the
Seller Territory.
(c) Notwithstanding anything within this Section to the contrary, nothing
contained herein shall prohibit any Seller Related Party from acquiring not more
than five percent (5%) of any class of securities in any company the securities
of which are registered with the Securities and Exchange Commission and are
listed on a national stock exchange or are traded over the counter.
Section 1.10 Certain Remedies.
(a) The parties hereto agree that the scope, duration and geographic areas
of the covenants against competition set forth in Section1.9 above are
reasonable. In the event that any court of competent jurisdiction determines
that the scope, the duration or the geographic areas(s), or any of them, are
unreasonable and that such provision is to that extent unenforceable, the
parties hereto agree that the provision shall remain in full force and effect
for the greatest scope, for the greatest time period and in the greatest area
that would not render it unenforceable. The parties intend that such
noncompetition provisions shall be deemed to be a series of separate covenants,
one for each and every county of each and every state in which such provisions
are intended to be effective.
(b) The parties agree that damages are an inadequate remedy for any breach
of these Section 1.9 and that Purchaser shall, whether or not it is pursuing any
potential remedies at law, be entitled to equitable relief from any court of
competent jurisdiction in the form of preliminary and permanent injunctions
without bond or other security upon any actual or threatened breach thereof.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of Seller.
The Seller hereby represents and warrants to Purchaser as follows:
(a) Organization. The Seller is a corporation duly organized, validly
existing and in good standing under the laws of its state of incorporation.
(b) Binding Obligation. Seller and Parent have all requisite corporate
power and authority to enter into and perform its respective obligations under
this Agreement and the agreements, documents and instruments to be executed in
connection with this Agreement and to carry out the transactions contemplated
hereby. The board of directors of Seller and Parent have duly authorized the
execution and delivery of this Agreement, and no other corporate proceedings on
the part of Seller or Parent are necessary to authorize this Agreement and the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by Seller and Parent and constitutes a valid and binding obligation of
Seller and Parent enforceable in accordance with its terms. The execution,
delivery and performance by Seller or Parent of this Agreement does not and will
not conflict with, or result in any violation of or default under, any provision
of Seller's or Parent's articles of incorporation or bylaws or any ordinance,
rule, regulation, judgment, order, decree, agreement, instrument or license
applicable to Seller, Parent or to any of their respective properties or assets
or any agreement or instrument to which it is subject. No consent, approval,
order or authorization of, or registration, declaration or filing with, any
court, administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign, is required by or with respect to Seller
or Parent in connection with their execution, delivery or performance of this
Agreement.
(c) Title to Personal Property. The Seller has good and marketable title
to all of the property included in the Purchased Assets, in each case free and
clear of all mortgages, liens, security interests, pledges, charges or
encumbrances of any nature whatsoever ("Liens"), except as provided in paragraph
(h) below. Other than the representation and warranty set out in the preceding
sentence and as otherwise specifically set out herein, the Purchased Assets are
being transferred and conveyed to the Purchaser in "AS IS" condition, without
any representation or warranty as to merchantability or fitness for a particular
purpose. None of the Purchased Assets consist of inventory.
(d) No Broker's or Finder's Fees. No agent, broker, investment banker,
person or firm acting on behalf of Seller is or will be entitled to any broker's
or finder's fee or any other commission or similar fee in connection with any of
the transactions contemplated herein.
(e) Consents and Approvals. Except as described below, no consent,
approval, order or authorization of, registration, declaration or filing with,
or permit from, any governmental authority is required by or with respect to
Seller in connection with the execution and delivery of this Agreement by Seller
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or the consummation by Seller of the transactions contemplated hereby, and all
third-party consents, required by or with respect to Seller in connection with
the execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby, have been obtained including the consents of
parties to certain of the Contracts. Notwithstanding the foregoing, the parties
acknowledge that the operation of the waste tire processing facility located in
Xxxxxxx, Xxxxxxx, the assets of which are a portion of the Purchased Assets
hereunder, is subject to a permit issued by the State of Georgia. The applicable
Georgia law will require the Purchaser to apply for and receive a permit for
such facility in order to operate the facility. The Seller and the Purchaser
agree to cooperate in securing the necessary permit, and, if necessary and
permitted by law, Seller will allow the Purchaser to operate the facility for a
reasonable period of time under Seller's permit while Purchaser is pursuing a
new permit from the State of Georgia. Seller makes no representation or warranty
that any of its government permits, licenses and permissions to operate are
transferable to Purchaser, and Purchaser acknowledges and agrees that it shall
be solely responsible for obtaining any such permits, licenses and permissions.
(f) Litigation. No litigation, arbitration, investigation or other
proceeding of any governmental authority is pending or, to the knowledge of
Seller, threatened against Seller, relating to the Business or the Purchased
Assets, with respect to any product liability or similar cause of action or
otherwise other than an described on Schedule D attached hereto. Seller is not
subject to any outstanding injunction, judgment, order, decree or ruling
relating to its business or the Purchased Assets. There is no litigation,
proceeding or investigation pending or, to the knowledge of Seller, threatened
against or affecting Seller that questions the validity or enforceability of
this Agreement or any other document, instrument or agreement to be executed and
delivered by Seller in connection with the transactions contemplated hereby.
(g) Environmental Matters. To Seller's knowledge, Seller has conducted the
Business and owned and operated the Purchased Assets, and is using and operating
the Purchased Assets and conducting the Business, in compliance with all
applicable environmental laws.
(h) Taxes. There are no Liens on any of the Purchased Assets for unpaid
taxes other than Liens for taxes not yet due and payable.
(i) Absence of Certain Business Practices. To Seller's knowledge, neither
Seller nor any of its partners, officers, directors, managers, employees or
agents nor any other person acting on any of their behalf, has, directly or
indirectly, given or agreed to give any gift or similar benefit (other than with
respect to bona fide payments for which adequate consideration has been given)
to any customer, supplier, governmental employee or other person who is or may
be in a position to help or hinder the business of Seller (or assist Seller in
connection with any actual or proposed transaction) (a) which will result in
Seller incurring any damage or penalty in any civil, criminal or governmental
litigation or proceeding; (b) which, if not continued in the future, would have
a material adverse effect on the Business or which will result in Seller paying
any penalty in any private or governmental litigation or proceeding; or (c) for
establishment or maintenance of any concealed fund or concealed bank account.
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(j) Disclosure. No representation or warranty of Seller set forth in this
Agreement or in any of the Schedules hereto, or other statement in writing or
certificate furnished or to be furnished to Purchaser by or on behalf of Seller
in connection with the transactions contemplated hereby, contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained herein or therein not misleading in light
of the circumstances in which they are made.
Section 2.2 Representations and Warranties of Purchaser.
Purchaser represents and warrants to, and agrees with, Seller as follows:
(a) Organization. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Tennessee.
(b) Binding Obligation. Purchaser has all requisite corporate power and
authority to enter into and perform its obligations under this Agreement. All
corporate acts and other proceedings required to be taken by Purchaser to
authorize the execution, delivery and performance by Purchaser of this Agreement
and the transactions contemplated hereby, have been duly and properly taken.
This Agreement has been duly executed and delivered by Purchaser and constitutes
the legal, valid and binding obligation of Purchaser, enforceable against
Purchaser in accordance with its terms. The execution, delivery and performance
by Purchaser of this Agreement does not and will not conflict with, or result in
any violation of, any provision of the charter or bylaws of Purchaser, or any
provision of any law, ordinance, rule, regulation, judgment, order, decree,
agreement, instrument or license applicable to Purchaser or to its property or
assets. No consent, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or commission or
other governmental authority or instrumentality, domestic or foreign, is
required by or with respect to Purchaser in connection with its execution,
delivery or performance of this Agreement.
(c) No Broker's or Finder's Fees. No agent, broker, investment banker,
person or firm acting on behalf of Purchaser is or will be entitled to any
broker's or finder's fee or other commission or similar fee in connection with
any of the transactions contemplated herein.
(d) Ability to Perform Contracts. Purchaser has the resources, financial
and otherwise, to perform all of its obligations under all Contracts assumed
hereunder in accordance with their terms.
ARTICLE III
ADDITIONAL AGREEMENTS
Section 3.1 Expenses.
All costs and expenses incurred by any party hereto in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such costs. No such expenses of Seller shall in any way
constitute an Assumed Liability.
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Section 3.2 Press Releases; Public Disclosures.
Purchaser acknowledges that the Parent will be required (i) to file with
the Securities and Exchange Commission a Current Report on Form 8-K describing
the transactions contemplated by this Agreement, (ii) to include references to
and descriptions of this Agreement and transactions contemplated hereby in other
public filings, and (iii) to file a copy of this Agreement with one or more of
such public filings. Purchaser consents to all of the foregoing. Purchaser
further acknowledges that the Parent may issue a press release to announce the
sale of the Purchased Assets and/or other aspects of the transactions
contemplated by this Agreement. Seller agrees to provide a draft of such press
release to Purchaser for its approval, which approval shall not be unreasonably
withheld or delayed.
Section 3.3 Employees.
Purchaser shall have the right, but not the obligation, to employ any or
all of Seller's employees in Georgia; however, Seller will remain liable for and
Purchaser will not assume any liability for severance, vacation or other
employee benefits accrued prior to the Closing, whether or not such employees
are hired by Purchaser.
Section 3.4 Facility
(a) At Closing, Seller and Purchaser will enter into an acceptable
sublease agreement for one-half of the facility located at 000X Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx ("Facility"). The lease term will be for a term of six months,
but the term shall be automatically extended at the end of each month during the
term of the sublease to a new six month term unless Seller or Purchaser has
given notice of its intention to terminate the sublease. The monthly payments
for the sublease shall be $0 for the first three months and $6,125 thereafter on
a triple net basis. (b) Purchaser will assume total financial responsibility for
disposing of all whole tires, rough shreds, co-mingled waste steel,
over-the-road truck tires, tires with rims and any other tire derived waste
material or product on site at the Facility at Closing.
Section 3.5 Processing of Certain Receivables
Following the Closing and if requested by the Purchaser, Seller will
continue to process the receivables for the Michelin Tire Company and the
Goodyear Tire Company for Xxxxxx Xxxxxx and/or his designees and make 90% of the
receivable immediately available (within two business days) to Xxxxxx Xxxxxx
and/or his designees and upon receiving the remaining 10% will also make those
funds immediately available as aforementioned. This agreement is to continue for
a period of up to 90 days after the Closing.
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ARTICLE IV
INDEMNIFICATION
Section 4.1 Purchaser Claims.
Except as hereinafter set forth, Seller and Parent shall indemnify and
hold harmless Purchaser and its successors and assigns, and its and their
respective officers, directors, shareholders, employees and agents, against, and
in respect of, any and all loss, liability, demand, claim, action, cause of
action, cost, damage, deficiency, tax, penalty, fine or expense, including,
without limitation, reasonable legal, accounting, investigatory and any other
expenses (collectively "Claims"), which may arise out of (a) any actual or
alleged failure of Seller to discharge in a timely manner any of the Excluded
Liabilities; (b) any misrepresentation or other breach or violation by Seller of
the representations, warranties, covenants and agreements contained in this
Agreement or any schedule or exhibit hereto; (c) the operation of Seller's
business prior to Closing (except for Claims arising from the Assumed
Liabilities that arise after the Closing Date); (d) the failure of Seller to
comply with applicable bulk sale laws; (e) failure of Seller to pay or discharge
any liability with respect to taxes on its Business for periods prior to the
Closing Date; (f) any claim that any service performed or any product
manufactured, distributed or sold by Seller, or any of its predecessors, or its
or their subsidiaries or affiliates prior to the Closing Date, was defective or
noncompliant with any express or implied warranty without regard to the legal
theory under which redress may be sought, i.e., tort, breach of contract or
strict liability; or (g) any of the following conditions or occurrences relating
to the environment [excluding that agreed to in Section 3.4(b)]: (1) any
clean-up, corrective removal or remedial actions, or property damage arising out
of any condition existing with respect to the Seller's Business on or prior to
the Closing Date; (2) third party claims for personal injury where the exposure,
incident or occurrence out of which the Claim arises occurred in whole or in
part, on or prior to the Closing Date; (3) any transportation or disposition
commenced, arranged or initiated on or before the Closing Date, by or on behalf
of Seller or any of its predecessors, or its or their subsidiaries or
affiliates, of any substance owned or controlled by Seller or any of its
predecessors, or its or their subsidiaries or affiliates, or any substance from
any premises owned or operated by Seller or any of its predecessors, or its or
their subsidiaries or affiliates, for any purpose, including, but not limited
to, treatment, storage, disposal or recycling; (4) fines or penalties on account
of the ownership, use, condition or operation of any of the Purchased Assets of
Seller or of any of its subsidiaries or affiliates, at any time on or prior to
the Closing Date; (5) any liability to modify, restore, change or improve any of
the assets or real property of Seller or any of its predecessors, or its or
their subsidiaries or affiliates, in order to effectuate compliance with any
applicable law or order; or (6) the removal of any and all asbestos, asbestos
containing materials or other hazardous materials which existed on or before the
Closing Date in any premises owned, leased, operated or managed on or before the
Closing Date by Seller or any its predecessors, or its or their subsidiaries or
affiliates.
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Section 4.2 Seller Claims.
Except as hereinafter set forth, Purchaser shall indemnify and hold
harmless Seller, Parent and their successors and assigns, and its and their
respective officers, directors, shareholders, employees and agents, against, and
in respect of, any and all loss, liability, demand, claim, action, cause of
action, cost, damage, deficiency, tax, penalty, fine or expense, including,
without limitation, reasonable legal, accounting, investigatory and any other
expenses (collectively "Claims"), which may arise out of (a) any actual or
alleged failure of Purchaser to discharge in a timely manner any of the Assumed
Liabilities; (b) any misrepresentation or other breach or violation by Purchaser
of the representations, warranties, covenants and agreements contained in this
Agreement or any schedule or exhibit hereto; (c) the operation of Purchaser's
business subsequent to Closing (except for Claims arising from the Excluded
Liabilities that arise after the Closing Date); (d) the failure of Purchaser to
comply with applicable bulk sale laws; (e) failure of Purchaser to pay or
discharge any liability with respect to taxes on its Business for periods
subsequent to the Closing Date; (f) any claim that any service performed or any
product manufactured, distributed or sold by Purchaser, or any of its
predecessors, or its or their subsidiaries or affiliates subsequent to the
Closing Date, was defective or noncompliant with any express or implied warranty
without regard to the legal theory under which redress may be sought, i.e.,
tort, breach of contract or strict liability; or (g) any of the following
conditions or occurrences relating to the environment; (i) any clean-up,
corrective removal or remedial actions, or property damage arising out of any
condition existing with respect to the Purchaser's Business subsequent to the
Closing Date; (ii) third party claims for personal injury where the exposure,
incident or occurrence out of which the Claim arises occurred in whole or in
part, subsequent to the Closing Date; (iii) any transportation or disposition
commenced, arranged or initiated subsequent to the Closing Date, by or on behalf
of Purchaser or any of its predecessors, or its or their subsidiaries or
affiliates, of any substance owned or controlled by Purchaser or any of its
predecessors, or its or their subsidiaries or affiliates, or any substance from
any premises owned or operated by Purchaser or any of its predecessors, or its
or their subsidiaries or affiliates, for any purpose, including, but not limited
to, treatment, storage, disposal or recycling; (iv) fines or penalties on
account of the ownership, use, condition or operation of any of the Purchased
Assets of Purchaser or of any of its subsidiaries or affiliates, at any time
subsequent to the Closing Date; (v) any liability to modify, restore, change or
improve any of the assets or real property of Purchaser or any of its
predecessors, or its or their subsidiaries or affiliates, in order to effectuate
compliance with any applicable law or order; or (vi) the removal of any and all
asbestos, asbestos containing materials or other hazardous materials which
existed subsequent to the Closing Date in any premises owned, leased, operated
or managed subsequent to the Closing Date by Purchaser or any its predecessors,
or its or their subsidiaries or affiliates.
Section 4.3 Notice of Claim; Defense of Third Party Claims.
If either party becomes aware of or receives notice of any Claim of a
third party or the commencement of any third party action or proceeding with
respect to which another party (the "Indemnitor") is obligated to provide
indemnification pursuant hereto, the party entitled to indemnification (the
"Indemnitee") shall promptly give the Indemnitor notice thereof. Such notice
shall not be a condition precedent to any liability of the Indemnitor under the
provisions for indemnification contained in this Contract, unless (and only to
the extent that) failure to give such notice materially prejudices the rights of
the Indemnitor with respect to such claims, actions, or proceedings. The
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Indemnitor may compromise or defend, at the Indemnitor's own expense, and by the
Indemnitor's own counsel, any such matter involving the asserted liability of
the Indemnitee. If the Indemnitor elects not to compromise or defend such
matter, then the Indemnitee, at the Indemnitor's expense and by the Indemnitee's
own counsel, may defend such matter. In any event, the Indemnitee, the
Indemnitor and the Indemnitor's counsel (and, if applicable, the Indemnitee's
counsel) shall cooperate in the compromise of, or the defense against, any such
asserted liability; provided, however, that the Indemnitor shall be free to
settle or compromise any Claim without the consent of the Indemnitee if such
settlement or compromise imposes no liability on the Indemnitee. If the
Indemnitor chooses to defend any claim, the Indemnitee shall make available to
the Indemnitor any books, records, or other documents within its control that
are reasonably necessary or appropriate for such defense.
Section 4.4 Payment.
Unless the Indemnitor disputes a Claim for indemnification in good faith,
the Indemnitor shall pay the Indemnitee in immediately available funds promptly
after the Indemnitee provides the Indemnitor with written notice of a Claim
hereunder.
Section 4.5 Offset
In the event Seller materially breaches any obligation to Purchaser under
this Article IV, which material breach causes Purchaser to expend any funds
defending itself against any Claims, Purchaser may offset the amount of any
reasonable funds so expended against lease payments due to Seller under Section
3.4(a) hereof. In the event of such offset, Purchaser shall provide written
notice of the basis and amount of such offset.
ARTICLE V
GENERAL PROVISIONS; ADDITIONAL AGREEMENTS
Section 5.1 Survival of Representations, Warranties and Agreements.
All presentations and warranties in this Agreement or in any instrument
delivered pursuant to this Agreement shall survive the Closing until the earlier
of (i) the third anniversary of the Closing Date or (ii) the expiration of the
current terms of all of the Contracts (not including any renewal periods
negotiated by the Purchaser).
Section 5.2 Dispute Resolution.
Except as otherwise expressly provided herein, any dispute or controversy
arising under or in connection with this Agreement will be settled by binding
arbitration, in accordance with the Commercial Arbitration Rules of the American
Arbitration Association (the "AAA") then in effect, by a panel of three
arbitrators to be selected by the AAA. Arbitration under this Agreement shall be
held in Atlanta, Georgia. The arbitrators shall allow such discovery as the
arbitrators determine appropriate under the circumstances and shall resolve the
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dispute as expeditiously as practicable and, if reasonably practicable, within
one hundred twenty (120) days after the arbitrators are appointed. The
arbitrators shall have authority to award relief under legal or equitable
principles, including interim or preliminary relief, and to allocate
responsibility for the costs of the arbitration and to award recovery of
attorneys fees and expenses in such manner as is determined to be appropriate by
the arbitrators; provided, however, that the arbitrators shall have no authority
to award incidental, indirect, consequential, special or punitive damages of any
sort. Judgment upon the award rendered by the arbitrators may be entered in any
court of competent jurisdiction. The fact that the dispute resolution procedures
specified herein shall have been or may be invoked shall not excuse any party
from performing its obligations under this Agreement, and during the pendency of
any such procedure, all parties shall continue to perform their respective
obligations in good faith, subject to any rights to terminate this Agreement
that may be available to any party hereunder.
Section 5.3 Sales Taxes.
All sales and use taxes, if any, due under the laws of any state, any
local government authority or the federal government of the United States in
connection with the purchase and sale of the Purchased Assets shall be paid by
Seller.
Section 5.4 Counterparts.
This Agreement may be executed in one or more counterparts, all of which
shall constitute one in the same instrument.
Section 5.5 Amendment.
This Agreement may not be amended except by an instrument in writing
signed on behalf of each of the parties hereto.
Section 5.6 Entire Agreement.
This Agreement and the documents to be delivered pursuant hereto together
constitute the entire agreement between the parties, and there are no
agreements, understandings, restrictions, warranties, or representations between
the parties other than those set forth or provided for in this Agreement
relating to the subject matter hereof.
Section 5.7 Governing Law.
This Agreement shall be governed in all respects, including validity,
interpretation and effect, by the internal laws of the State of Georgia without
regard to principles of conflicts of laws.
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Section 5.8 Notices.
All notices, requests, demands, claims and other communications required
or permitted to be given hereunder shall be in writing and shall be sent by (a)
personal delivery (effective upon delivery), (b) facsimile (effective on the
next day after transmission), (c) recognized overnight delivery (effective on
the next day after delivery to the service) or (d) registered or certified mail,
return receipt requested and postage prepaid (effective on the third day after
being so mailed), in each case addressed to the intended recipient as set forth
below:
If to Seller:
XxxxxXxx Technologies of Georgia, Inc.
c/x XxxxxXxx Technologies, Inc.
0 Xxxxxxx Xxxx, Xxxxxxxx X
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, CFO
If to Purchaser:
MTR of Georgia, Inc.
Xxxxxx Xxxxxx and Xxxxxxx X. Bone
c/o Bone McAllester Norton PLLC
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Either Party may change its address for receiving notices by giving written
notice of such change to the other Party in accordance with this Section 5.8.
[SIGNATURE PAGE FOLLOWS]
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal as of the date first written above.
XxxxxXxx Technologies, Inc.
By:____________________________________
Title:_________________________________
XxxxxXxx Technologies of Georgia, Inc.
By:____________________________________
Title:_________________________________
MTR of Georgia, Inc.
By:____________________________________
Title:_________________________________
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