EXHIBIT (d)(3)
Execution copy
ASSET PURCHASE AGREEMENT
By and Among
STEEL BRIDGES, LLC
PITT-DES MOINES, INC.
and
PDM BRIDGE CORP.
February 1, 2002
ASSET PURCHASE AGREEMENT
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THIS ASSET PURCHASE AGREEMENT (this "Agreement") is dated as of the 1st
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day of February, 2002, by and among (i) Steel Bridges, LLC, a Delaware limited
liability company (the "Buyer"), (ii) Pitt-Des Moines, Inc., a Pennsylvania
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corporation (the "Company"), and (iii) PDM Bridge Corp., a Delaware corporation
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("PDM Florida"; together with the Company, the "Sellers").
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WHEREAS, PDM Florida is a wholly owned subsidiary of the Company;
WHEREAS, the Sellers are engaged in the business of the engineering and
design, procurement and fabrication of steel bridges (the "Business"); and
WHEREAS, the Buyer desires to purchase the Business by acquiring
substantially all of the assets owned by the Sellers and used in the Business,
subject to certain obligations, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein, the Buyer and each of the Sellers hereby agree as follows:
1. PURCHASE AND SALE.
1.1 Acquired Assets. Subject to the terms and conditions set forth in
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this Agreement, at the Closing referred to in Section 4 hereof, the Sellers
shall sell, assign, transfer and deliver ("Transfer") to the Buyer, and the
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Buyer shall purchase, acquire and take assignment and delivery of, all of the
assets (other than the Excluded Assets specified in Section 1.2) of the Sellers
used in or useful to the Business (all of which assets are hereinafter referred
to collectively as the "Acquired Assets"), including without limitation the
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following assets:
(a) All of the Sellers' interests in real estate owned and
used in connection with the Business as of the date hereof, as described on
Schedule 1.1(a) of the Disclosure Schedules, together with any and all
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buildings, plants and other structures and improvements thereon, and, to the
extent of Sellers' interest therein, any and all rights and privileges
pertaining thereto or to any of such buildings, plants or other structures or
improvements, and, to the extent constituting real property owned by the
Sellers, any and all fixtures attached thereto or located thereon (the "Owned
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Real Property");
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(b) All of the Sellers' title to, interest in and rights under
the real estate lease (the "Real Property Lease") described on Schedule 1.1(b)
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of the Disclosure Schedules relating to the property described therein and all
buildings, plants and other structures and improvements thereon, and, to the
extent covered by the Real Property Lease, any and all fixtures, machinery,
installations, equipment and other property attached thereto or located thereon
(the "Leased Real Property");
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(c) Any and all plants, fixtures, machinery, installations,
equipment, furniture, tools, spare parts, supplies, materials and other personal
property used in or relating to the Business, including without limitation,
those items described on Schedule 1.1(c) of the Disclosure Schedules, with such
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additions thereto and deletions therefrom as may hereafter arise in the ordinary
course of business prior to the Closing consistent with the Sellers' obligations
under Section 7 hereof (collectively, the "Equipment");
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(d) All of the Sellers' title to, interest in and rights under
the leases of personal property described on Schedule 1.1(d) of the Disclosure
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Schedules (the "Personal Property Leases");
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(e) All of the Sellers' inventories used in or relating to the
Business, including raw materials, supplies, parts, work in process and finished
goods (collectively, the "Inventories");
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(f) Any and all of the trade accounts receivable, notes
receivable and miscellaneous receivables of the Business (collectively, the
"Accounts Receivable");
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(g) All of the Sellers' rights under the agreements with respect
to employees and independent contractors described on Schedule 1.1(g) of the
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Disclosure Schedules and all of the Sellers' rights under the employee plans
described on Schedule 2.1(d) of the Disclosure Schedules and any related funding
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media, assets, reserves, credits and service agreements (collectively, the
"Employee Agreements");
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(h) All of the Sellers' rights under the Contracts (as defined
in Section 5.16) and under all contracts, commitments and agreements of the
Sellers used in or relating to the Business entered into in the ordinary course
of business prior to the Closing consistent with the Sellers' obligations under
Section 7 hereof;
(i) All of the Sellers' transferable rights under the licenses,
permits and approvals, both governmental and private, described on
Schedule 1.1(i) of the Disclosure Schedules (collectively, the "Permits");
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(j) All of the Sellers' trademarks, service marks, trade names,
trade secrets, Internet domain names, copyrights, designs, patents (and all
applications relating thereto, licenses (as licensee or licensor) used in or
relating to the Business and all goodwill and other agreements and applications
with respect to the foregoing, production records, technical information,
manufacturing know-how, processes, customer lists, telephone numbers and other
intangible assets used in or relating to the Business, including without
limitation those described on Schedule 1.1(j) of the Disclosure Schedules;
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(k) All of the Sellers' accounting books, records and ledgers
used in or relating to the Business, employment and personnel records for all
employees of the Business, information systems and all other documents and
records relating to the Acquired Assets;
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(l) All of the Sellers' title to and interest in motor vehicles
and trailers used in conjunction with the Business, including those described
on Schedule 1.1(l) of the Disclosure Schedules;
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(m) All of the cash, commercial paper or cash equivalents of
the Business including all cash in the bank accounts identified on
Schedule 1.1(m) of the Disclosure Schedules (the "Business Accounts") except for
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cash to the extent transferred in accordance with Section 7.4(b) hereof; and
(n) All of Sellers' interests in the Chippewa Valley Track LLC.
1.2 Excluded Assets. Notwithstanding the foregoing, the Sellers are
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not selling and the Buyer is not purchasing, pursuant to this Agreement, and the
Acquired Assets shall not include, any of the following assets (collectively,
the "Excluded Assets"):
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(a) the consideration received by the Sellers pursuant to this
Agreement;
(b) the rights of the Sellers under this Agreement;
(c) the assets associated with, or held as plan assets by, any
Employee Benefit Plan (as defined in Section 5.18(a)) which is listed on
Schedule 2.2(d) of the Disclosure Schedules;
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(d) all records and all rights and interests of the Company in
any computer software license or related service agreements which in each case
are not used primarily in the Business and are not material to the operation of
the Business;
(e) any and all cash, commercial paper or cash equivalents of the
Company that is not cash, commercial paper or cash equivalents of the Business
or in the Business Accounts;
(f) any and all trade accounts receivable, notes receivable and
miscellaneous receivables of the Company (not relating to the Business); and
(g) any intercompany indebtedness between the Company and any
of its subsidiaries, any refund claims for any sales or income taxes of Sellers
and any overpaid income tax accounts.
2. ASSUMPTION OF OBLIGATIONS.
2.1 Assumed Obligations. Subject to the terms and conditions set
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forth in this Agreement, at the Closing the Buyer shall assume, and agree to
pay, perform, fulfill and discharge, all obligations and liabilities related to
or arising out of the Business or the Acquired Assets (including, without
limitation, any and all liabilities and obligations of the Sellers arising out
of the ownership, possession, construction, use, access, leasing, maintenance,
management, replacement, renewal, repair, operation, enjoyment, alterations,
modifications, additions, accessions, improvements, appurtenances, replacements
and substitutions of or to the Acquired
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Assets), whether arising before or after the Closing Date, other than the
Excluded Liabilities (as defined below), including but not limited to, the
following obligations of the Sellers related to or arising out of the Business
or the Acquired Assets (collectively, the "Assumed Obligations"):
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(a) all obligations and liabilities under the Real Property
Lease, Personal Property Leases, Employee Agreements and Contracts;
(b) all obligations and liabilities of the Sellers reflected
on the September 30 Balance Sheet (as defined in Section 5.6) which remain
unpaid at the Closing, other than Excluded Liabilities;
(c) all obligations and liabilities incurred by the Sellers in
connection with the Business in the ordinary course subsequent to the date of
the September 30 Balance Sheet and through the Closing Date, other than (i) any
obligations or liabilities for indebtedness for borrowed money or (ii) any
obligations or liabilities of Sellers for income or sales taxes ;
(d) all obligations and liabilities relating to: (i) the
Company's regular and special severance plans (the "Severance Plans") pertaining
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to the employees of the Business as such obligations and liabilities are
described on Schedule 2.1(d) of the Disclosure Schedules, and (ii) the Employee
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Benefit Plans listed on Schedule 2.1(d) of the Disclosure Schedules
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(collectively, the "Assumed Plan Obligations");
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(e) all obligations and liabilities arising out of Environmental
Laws (as defined in Section 5.12); and
(f) all obligations and liabilities of the Sellers relating to
the indemnity agreements identified on Schedule 5.16(d) of the Disclosure
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Schedules.
2.2 Excluded Liabilities. Notwithstanding anything in this Agreement
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to the contrary, the Buyer shall not assume, and shall not be deemed to have
assumed, any liability or obligation of the Sellers, related to or arising out
of the following unassumed liabilities and obligations (collectively, the
"Excluded Liabilities"):
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(a) any liabilities or obligations of the Sellers for
indebtedness for borrowed money;
(b) any liabilities of any Seller for any federal, state or
local income tax of any Seller;
(c) any liability of any Seller for workmen's compensation
claims relating to injuries which occurred on or before the Closing Date;
(d) any liabilities or obligations under any Employee
Benefit Plan listed on Schedule 2.2(d) of the Disclosure Schedules;
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(e) any liabilities or obligations of Sellers relating to
Xxxxxxx Mfg. Corp. being named as a potentially responsible party for the
release of hazardous substances from the
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Xxxxx & Xxxxxx landfill site located in the City of Wausau, Marathon County, WI;
(f) except as otherwise provided in this Agreement, all
liabilities or obligations of Sellers for expenses (including fees and
disbursements of counsel, independent public accountants and investment bankers
for Sellers) incurred by Sellers in connection with the purchase transaction
described in this Agreement;
(g) any intercompany obligations of the Business to Affiliates
of the Sellers; and
(h) any other liabilities or obligations of the Sellers not
related to or arising out of the Business or the Acquired Assets.
3. PURCHASE PRICE.
3.1 Delivery of Purchase Price. At the Closing, the Buyer shall pay
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to the Sellers or as directed by Sellers, as the aggregate purchase price for
the Acquired Assets, the sum of Ninety-Eight Million Five Hundred Thousand
Dollars ($98,500,000) subject to adjustment, if any, pursuant to Section 7.4(b)
hereof (the "Purchase Price"). The Purchase Price shall paid by deposit by the
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Buyer into escrow on the Escrow Closing Date (as defined in Section 4.2), to be
held in escrow pursuant to the terms and conditions of the Asset Sale Escrow
Agreement (the "Escrow Agreement") executed by the Company, the Buyer, PDM
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Bridge Corp., Xxxxxx Financial, Inc. and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., New York branch (the "Escrow Agent")
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contemporaneously herewith in the form attached hereto as Annex A. Within
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forty-five (45) days following the Closing Date, Buyer shall provide to Sellers
a draft schedule setting forth Buyer's proposed allocation of the Purchase Price
among the Acquired Assets; it being agreed that Buyer shall not allocate more
than Thirty-Five Million Dollars ($35,000,000) of the Purchase Price to the
Acquired Assets being transferred and conveyed to the Buyer by PDM Florida. The
Sellers tax returns for the period including the Closing Date shall allocate the
Purchase Price in a similar manner unless Sellers determine in their reasonable
good faith judgment that Buyer's allocation is unreasonable.
4. CLOSING; PRECLOSING.
4.1 Time and Place. The closing of the transactions contemplated by
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this Agreement (the "Closing") shall be held at the offices of Xxxxx Raysman
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Xxxxxxxxx Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00
a.m. on the date of the consummation of the Merger, but not later than March 29,
2002, or at such other place as the Buyer and the Sellers may agree. The date on
which the Closing is actually held hereunder is sometimes referred to herein as
the "Closing Date."
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4.2 Notification; Escrow Closing Date. The Company shall deliver to
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Buyer a certificate (an "Escrow Date Notification Certificate") specifying
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(a) the date on which the Purchase Escrowed Items (as defined
in the Escrow Agreement) are to be delivered to the Escrow Agent (which in
no event shall be earlier than the 30th day after the date hereof) (the
"Escrow Closing Date");
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(b) the cash balances in the Business Accounts as of the Escrow
Closing Date;
(c) the amount of cash to be transferred to the Ironbridge
Account and any adjustment to the Purchase Price pursuant to Section 7.4(b)
hereof; and
(d) the Reimbursement Amount as defined in Section 14.1(e)
hereof.
Such Escrow Date Notification Certificate shall be delivered by the Company to
the Buyer no later than one Business Day prior to such Escrow Closing Date;
provided that if a Return Event, as defined in the Escrow Agreement, shall occur
and the Escrow Agent shall have returned the Purchase Escrowed Items and the
Escrow Amount (each as defined in the Escrow Agreement) in accordance with the
terms of the Escrow Agreement, the Company shall (subject to the provisions of
Section 12 hereof) have the right to deliver a new Escrow Date Notification
Certificate to Buyer upon the terms set forth above specifying the new "Escrow
Closing Date." The Company shall have the right to deliver one or more Escrow
Date Notification Certificates upon the terms set forth above until such time as
the Expiration Date shall have occurred or, if earlier, such time as this
Agreement shall have been terminated pursuant to Section 12(a) hereof.
4.3 Transactions on the Escrow Closing Date. On the Escrow Closing
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Date, as a condition to Closing, the Buyer or the Sellers, as appropriate,
shall do the following:
(a) The Sellers shall duly execute and deliver to the Escrow
Agent all documents required under the Escrow Agreement, including without
limitation, (i) the deeds to the Owned Real Property in the form as attached
hereto as Exhibit A, Exhibit A-1 and Exhibit B (collectively, the "Deeds"),
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(ii) certificates of title and gap indemnity for each Owned Real Property
("Certificates of Title") in the form of Exhibit C, Exhibit C-1 and Exhibit C-2
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attached hereto, (iii) the assignment and assumption agreement (the "Assignment
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and Assumption Agreement") in the form of Exhibit D, (iv) the xxxx of sale
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("Xxxx of Sale") in the form of Exhibit E hereto, (v) the powers of attorney to
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transfer the motor vehicles in the form of Exhibit F hereto, (vi) the trademark
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assignment agreement in the form of Exhibit G hereto, (vii) the Company's
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Certificate of the Secretary in the form of Exhibit H hereto, (viii) PDM
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Florida's Certificate of the Secretary in the form of Exhibit I hereto, (ix) a
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certificate of the Sellers certifying that the conditions in each of Sections
8.1 and 8.2 have been satisfied in the form of Exhibit J hereto; and (x) the
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assignment of membership rights ("Assignment of Membership Rights") in the form
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of Exhibit O hereto of the Company in the Chippewa Valley Track LLC;
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(b) The Buyer shall duly execute and deliver to the Escrow
Agent all documents required under the Escrow Agreement, including without
limitation, (i) the Assignment and Assumption Agreement, (ii) Buyer's
Certificate of the Secretary in the form of
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Exhibit K hereto, and (iii) the Buyer's Certificate certifying that the
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conditions in each of Sections 9.1 and 9.2 have been satisfied in the form of
Exhibit L hereto;
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(c) Each of the parties hereto shall execute and deliver or
cause to be delivered each of the agreements or other certificates or documents
required of such party pursuant to Sections 8 and 9 of this Agreement; and
(d) The Buyer shall deliver or cause to be delivered the Purchase
Price to the Escrow Agent.
4.4 Transactions at Closing. At the Closing:
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(a) The Escrow Agent shall deliver the Purchase Price and the
Reimbursement Amount (as described in Section 14.1(e) hereof) to the Sellers, or
at the direction of the Sellers, by wire transfer of immediately available funds
pursuant to and in accordance with the Escrow Agreement; and
(b) The Purchase Escrowed Items (as defined in the Escrow
Agreement) shall be disbursed as provided in the Escrow Agreement.
5. REPRESENTATIONS AND WARRANTIES OF THE SELLERS. As a material
inducement to the Buyer to enter into this Agreement and consummate the
transactions contemplated hereby, each of the Sellers jointly and severally
represents and warrants to the Buyer, which representations and warranties shall
not survive the Escrow Closing Date it being expressly understood and agreed
that, notwithstanding anything to the contrary (express or implied) set forth
herein, in the case of any breach by Sellers (or either of them) of any of the
following representations and warranties, Buyer's sole right shall be the
exercise (if it is entitled to do so) of its right of termination pursuant to
Section 12(a)(iii) hereof (and Buyer's sole remedies in connection therewith
shall be those expressly set forth in Section 12 hereof) and no Seller shall at
any time (whether before, on or after the Escrow Closing Date) have any further
liability whatsoever with respect to any such breach of the following
representations and warranties:
5.1 Organization of Sellers; Authority. The Company is a corporation
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duly organized, validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania. PDM Florida is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Each of the Sellers is duly qualified and in good standing as a foreign
corporation in all jurisdictions in which the character of the properties owned
or leased or the nature of the activities conducted by it makes such
qualification necessary, except where any such failure would not reasonably be
expected to have a Material Adverse Effect. Each of the Sellers has delivered to
the Buyer complete and correct copies of its Articles or Certificate of
Incorporation, as the case may be, and By-Laws and all amendments thereto, and
no amendments thereto are pending or under consideration by the Sellers. Neither
Seller is in violation of any term of its Articles or Certificate of
Incorporation. Each of the Sellers has all requisite corporate power and
authority to own and hold the Acquired Assets owned or held by it, to carry on
the Business as such business is now conducted and to execute and deliver this
Agreement and the
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other documents, instruments and agreements contemplated hereby or thereby
(collectively, the "Transaction Documents") to which it is a party and to carry
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out all actions required of it pursuant to the terms of the Transaction
Documents.
5.2 Corporate Approval; Binding Effect. Each of the Sellers has
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obtained all necessary authorizations and approvals from its Board of Directors
required for the execution and delivery of the Transaction Documents to which it
is a party and the consummation of the transactions contemplated hereby and
thereby. As of the Closing, each of the Sellers shall have obtained all
necessary authorizations and approvals from its shareholders, if any, required
for the execution and delivery of the Transaction Documents to which it is a
party and the consummation of the transactions contemplated hereby and thereby.
Each of the Transaction Documents to which any Seller is a party has been duly
executed and delivered by such Seller and constitutes the legal, valid and
binding obligation of such Seller enforceable against such Seller in accordance
with its terms, except as the enforceability thereof may be limited by any
applicable bankruptcy, reorganization, insolvency or other laws affecting
creditors' rights generally or by general principles of equity.
5.3 Subsidiaries. Other than PDM Florida, a wholly-owned subsidiary
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of the Company, neither Seller has any Affiliates or subsidiaries which own any
assets used in the Business.
5.4 Non-Contravention. Except as set forth on Schedule 5.4 of the
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Disclosure Schedules, the execution and delivery by each Seller of the
Transaction Documents to which it is a party and the consummation by each Seller
of the transactions contemplated hereby and thereby will not (a) violate or
conflict with any provision of the Articles or Certificate of Incorporation or
By-Laws of any Seller, as amended to date; or (b) constitute a violation of, or
be in conflict with, or constitute or create a default under, or result in the
creation or imposition of any Encumbrance (as defined in Section 5.10) upon any
property of any Seller (including without limitation any of the Acquired Assets)
pursuant to (i) any agreement or instrument to which any Seller is a party or by
which any Seller or any of its properties (including without limitation any of
the Acquired Assets) is bound or to which any Seller or any of such properties
is subject other than with respect to any lien which will be discharged at
Closing, or (ii) any statute, judgment, decree, order, regulation or rule of any
court or governmental or regulatory authority; provided, however, that in no
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event shall (x) it be a condition precedent to the consummation of the
transactions contemplated by this Agreement that Sellers have obtained any
consent from any third party or parties to any agreement or instrument or (y)
the failure of the Sellers to have obtained any such consent constitute a breach
of any of the representations, warranties, covenants or agreements made by any
Seller in this Agreement.
5.5 Governmental Consents. Except as set forth on Schedule 5.5 of the
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Disclosure Schedules, no material consent, approval or authorization of, or
registration, qualification or filing with, any governmental agency or authority
is required for the execution and delivery by any Seller of the Transaction
Documents to which it is a party or for the consummation by any Seller of the
transactions contemplated hereby or thereby. The Sellers have and maintain, and
the Permits listed on Schedule 1.1(i) of the Disclosure Schedules include, all
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material licenses, permits and other authorizations from all governmental
authorities as are necessary for the
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conduct of the Business as conducted at present or in connection with the
ownership or use of the Acquired Assets.
5.6 Financial Statements. The Sellers have delivered the following
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financial statements (the "Financial Statements") to the Buyer: (i) the audited
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consolidated balance sheets of the Company and its subsidiaries as of December
31, 1997, 1998, 1999 and 2000 (the "Audited Balance Sheets"), and the related
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consolidated statements of income, retained earnings and cash flows of the
Company and its subsidiaries for the fiscal years then ended (together with the
Audited Balance Sheets, collectively, the "Audited Financials"), (ii) the
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unaudited balance sheets of the Business as of December 31, 1997, 1998, 1999
and 2000 (the "Unaudited Balance Sheets"), and the related unaudited statements
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of income, retained earnings and cash flows of the Business for the fiscal years
of the Company then ended (together with the Unaudited Balance Sheets, the
"Unaudited Financials"), and (iii) the unaudited balance sheets of the Business
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as of September 30, 2001 (the "September 30 Balance Sheet") and November 30,
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2001 (together, the "Interim Balance Sheets") and the related unaudited
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statements of income, retained earnings and cash flows of the Business for the
fiscal years and nine (9) and eleven (11) month periods then ended (together
with the Interim Balance Sheets, collectively, the "Interim Financials"). Each
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of the Financial Statements are true and correct and have been prepared in
accordance with generally accepted accounting principles, consistently applied;
each of the Audited Balance Sheets fairly and accurately presents the
consolidated financial condition of the Company and its subsidiaries as of its
respective date; each of the statements of income, retained earnings and cash
flows included in the Audited Financials fairly and accurately present the
consolidated results of operations of the Company and its subsidiaries for the
periods covered thereby; each of the Unaudited Balance Sheets and the Interim
Balance Sheets fairly and accurately presents the financial condition of the
Business as of the date thereof; and each of the statements of income, related
earnings and cash flows included in the Unaudited Financials and the Interim
Financials fairly and accurately present the results of operations of the
Business for the periods covered thereby.
5.7 Absence of Certain Changes. Except as set forth on Schedule 5.7
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of the Disclosure Schedules, since December 31, 2000 each of the Sellers has
carried on the Business only in the ordinary course, and there has not been with
respect to the Business: (a) any change in the assets, liabilities, sales,
income or business of such Seller, or in its relationships with suppliers,
customers or lessors, other than changes which were both in the ordinary course
of business and have not been, either in any case or in the aggregate,
materially adverse; (b) any acquisition or disposition by such Seller of any
asset or property other than in the ordinary course of business; (c) any damage,
destruction or loss, whether or not covered by insurance, materially and
adversely affecting, either in any case or in the aggregate, the property or
business of such Seller; (d) any declaration, setting aside or payment of any
dividend or any other distributions in respect of the Company's capital stock;
(e) any increase in the compensation, pension or other benefits payable or to
become payable by either Seller to any of its directors, officers, employees or
consultants of the Business, or any bonus payments or arrangements made to or
with any of them (other than pursuant to the terms of any existing written
agreement or plan of which the Buyer has been supplied complete and correct
copies); (f) any forgiveness or cancellation of any debt or claim by either
Seller or any waiver of any right of material value of the Business; (g) any
entry by either Seller into any transaction with respect to the Business other
than in the ordinary
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course of business; (h) any incurrence by either Seller of any obligations or
liabilities, whether absolute, accrued, contingent or otherwise (including,
without limitation, liabilities as a guarantor or otherwise with respect to
obligations of others) with respect to the Business, other than obligations and
liabilities incurred in the ordinary course of business; (i) any Encumbrances
(as defined in Section 5.10) on any of the assets, tangible or intangible, of
the Sellers with respect to the Business or any of the Acquired Assets; or (j)
any discharge or satisfaction by either Seller of any lien or encumbrance or
payment by either Seller of any obligation or liability (fixed or contingent)
with respect to the Business other than (A) current liabilities included in the
September 30 Balance Sheet and (B) current liabilities incurred since the date
of the September 30 Balance Sheet in the ordinary course of the business which
were not materially adverse. As of September 30, 2001, the Business Accounts had
an aggregate cash balance of $13,586,188.34. Since September 30, 2001, all cash
generated by or attributable to assets or operations of the Business has been
deposited into the Business Accounts. Since September 30, 2001, no cash
generated by the Business has been transferred from the Business Accounts to any
account of the Company, except as required by Section 7.4(b) hereof.
5.8 Litigation. There is no action, suit, proceeding or investigation
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pending or, to the knowledge of the Sellers, threatened, relating to or
affecting any of the Acquired Assets or the Business, provided, however, that
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the Sellers make no representation or warranty in this Section 5.8 with respect
to environmental matters (which are addressed exclusively in Section 5.12),
Employee Benefit Plans, ERISA or other employee benefit matters (which are
addressed exclusively in Section 5.18) or Taxes (which are addressed exclusively
in Section 5.25). There is no action, suit, proceeding or investigation pending
or, to the knowledge of the Sellers, threatened, or which questions the validity
of the Transaction Documents or challenges any of the transactions contemplated
hereby or thereby, nor, to the knowledge of the Sellers, is there any basis for
any such action, suit, proceeding or investigation.
5.9 Conformity to Law. The Sellers have complied with, and are in
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compliance with, in all material respects, (a) all laws, statutes, governmental
regulations and all judicial or administrative tribunal orders, judgments,
writs, injunctions, decrees or similar commands applicable to the Business or
any of the Acquired Assets (including, without limitation, any labor, or other
law, regulation or ordinance) and (b) all terms and provisions of all contracts,
agreements and indentures used in or relating to the Business to which either of
the Sellers is a party, or by which either of the Sellers or any of the Acquired
Assets is subject, provided, however, that the Sellers make no representation or
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warranty in this Section 5.9, with respect to the Owned Real Property (which is
addressed exclusively in Section 5.11), environmental matters (which are
addressed exclusively in Section 5.12), Employee Benefit Plans, ERISA or other
employee benefit matters (which are addressed exclusively in Section 5.18) or
Taxes (which are addressed exclusively in Section 5.25). Subject to the proviso
of the immediately preceding sentence, the Sellers have not committed, been
charged with, or, to the knowledge of the Sellers, are or have been under
investigation with respect to, nor does there exist, any violation of any
provision of any federal, state or local law or administrative regulation in
respect of the Sellers, and with respect to the Business or any of the Acquired
Assets.
5.10 Title to Acquired Assets. The Sellers are the lawful owners of
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and have good title to all of the Acquired Assets, other than the Owned Real
Property and Leased Real Property, free
10
and clear of any security interests, liens, charges, options, mortgages, debts,
leases (or subleases), conditional sales agreements or any other material
adverse interest or material defects as to title (collectively, "Encumbrances")
------------
except for the Permitted Liens. All of the Acquired Assets, other than the Owned
Real Property and Leased Real Property, are in good condition (given age, usage
and reasonable wear and tear) and are adequate and sufficient to carry on the
Business as presently conducted. At and as of the Closing, the Sellers will
convey the Acquired Assets to the Buyer by the Deeds, the Xxxx of Sale, the
Certificates of Title, the Assignment of Membership Rights and the Assignment
and Assumption Agreement and the Buyer will have good title to all of the
Acquired Assets, other than the Owned Real Property and Leased Real Property,
free and clear of all Encumbrances other than Permitted Liens.
5.11 Real Property.
-------------
(a) Title and Description. The Sellers have good and marketable
---------------------
fee simple title to the Owned Real Property, free and clear of all Encumbrances
and free of encroachments onto or off of the Owned Real Property, except for
Encumbrances and encroachments that do not have a material adverse effect on the
value or use of the Owned Real Property as currently used and improved, and the
Permitted Liens to the extent described in subparagraph (ii) and (v) of the
definition of "Permitted Liens" in Section 13.
(b) Condition. To the knowledge of Sellers, there are no
---------
material defects in the physical condition of any improvement constituting a
part of the Owned Real Property, including, without limitation, structural
elements, mechanical systems, roofs or parking and loading areas, and all of
such improvements are in good condition (given age, usage and reasonable wear
and tear). To the knowledge of Sellers, none of the Owned Real Property is
subject to special flood or mudslide hazards or within the 100-year flood plain.
All water, sewer, gas, electric, telephone, air conditioning, heating, drainage
and other utilities required by law or necessary for the current operation of
the Owned Real Property have been connected pursuant to valid permits, to the
extent such permits are required, and are sufficient to carry on the Business as
presently conducted. Schedule 5.11(b) of the Disclosure Schedules sets forth a
----------------
true and complete status report as of January 24, 2002, for the completion of
the Palatka, Florida, facility expansion (the "Expansion Project"), by project
-----------------
item description, job number, approval amount, projected amount, amount spent
and remaining balance. Except as set forth on Schedule 5.11(b) of the Disclosure
---------------
Schedules, there are no other costs remaining or to be incurred in connection
with, or incidental to, the completion of the Expansion Project.
(c) Compliance with Law; Government Approvals. The Sellers have
-----------------------------------------
received no written notice from any governmental authority of any violation
of any law, ordinance, regulation, license, permit or authorization issued with
respect to any of the Owned Real Property that has not been corrected
heretofore, and no such violation exists which would reasonably be expected to
have a material adverse effect on the operation or value of any of the Owned
Real Property. All improvements constituting part of the Owned Real Property
have been completed and are now in compliance in all material respects with all
applicable laws, ordinances, regulations, licenses, permits and authorizations,
and there are presently in effect all material licenses, permits and
authorizations required by law, ordinance or regulation. The Sellers have
11
received no notice of any pending or threatened material real estate tax
deficiency or reassessment or condemnation of all or any portion of any of the
Owned Real Property.
(d) The Sellers lease no real property in connection with the
Business other than the Leased Real Property.
5.12 Environmental Matters.
---------------------
(a) Except as set forth on Schedule 5.12 of the Disclosure
-------------
Schedules and except as set forth in the Sellers' Environmental Reports (as
hereinafter defined):
(i) neither the Business, nor any real property presently
owned, leased or operated by the Sellers in connection with
the Business is being operated in violation or, to the Sellers'
knowledge, alleged violation in any material respect of any judgment,
decree, order, law, license, rule or regulation pertaining to
environmental matters, including without limitation those arising under
the Resource Conservation and Recovery Act ("RCRA"), the Comprehensive
----
Environmental Response, Compensation and Liability Act of 1980 as
amended ("CERCLA"), the Superfund Amendments and Reauthorization Act of
------
1986 ("XXXX"), the Federal Water Pollution Control Act, the Solid Waste
----
Disposal Act, as amended, the Federal Clean Water Act, the Federal
Clean Air Act, the Toxic Substances Control Act, or any state or local
statute, regulation, ordinance, order or decree relating to the
protection of human health from exposure to Hazardous Substances (as
defined herein), or the protection of the environment (collectively,
"Environmental Laws"); and
------------------
(ii) neither of the Sellers has, in connection with the
Business, received written notice from any third party, including
without limitation any federal, state or local governmental authority,
(A) that the Sellers in connection with the Business or any real
property presently or formerly owned, leased or operated by the Sellers
or any predecessor in interest has been identified by the United States
Environmental Protection Agency ("EPA") as a potentially responsible
---
party under CERCLA with respect to a site listed on the National
Priorities List, 40 C.F.R. Part 000 Xxxxxxxx X (1986); (B) that any
hazardous waste as defined by 42 U.S.C. ss. 6903(5) or 42 U.S.C. ss.
9601(14), any pollutant or contaminant as defined by 42 U.S.C. ss.
9601(33) or any toxic substance, oil or hazardous material or other
chemical or substance (including, without limitation, asbestos in any
form, urea formaldehyde or polychlorinated biphenyls) regulated by any
Environmental Laws (collectively, "Hazardous Substances") which the
--------------------
Sellers in connection with the Business or any predecessor in interest
has generated, transported or disposed of has been found at any site at
which a federal, state or local agency or other third party has
conducted or has ordered that the Sellers or any predecessor in
interest conduct a remedial investigation, removal or other response
action pursuant to any Environmental Law; (C) that the Sellers in
connection with the Business or any predecessor in interest is or shall
be a named party to any claim, action, cause of action, complaint,
(contingent or otherwise), legal or administrative proceeding arising
out of any third party's incurrence of costs, expenses, losses or
damages of any kind whatsoever in connection with the Release of
Hazardous Substances, or (D) that any real property
12
formerly owned, leased or operated by the Sellers in connection with
the Business is contaminated, including without limitation,
groundwater, surface water, soil, sediment and air contamination, in
violation of any applicable Environmental Laws nor, to the knowledge
of Sellers, do any such conditions or circumstances exist;
(iii) (A) no portion of any real property presently
owned, leased or operated by the Sellers in connection with the
Business has been used for the handling, manufacturing, processing,
storage or disposal of Hazardous Substances by Sellers in connection
with the Business except in accordance in all material respects with
applicable Environmental Laws; and no underground tank or other
underground storage receptacle for Hazardous Substances was or is
located on such properties except as maintained in accordance in all
material respects with applicable Environmental Laws; (B) in the course
of any activities conducted by the Sellers on any real property
presently owned, leased or operated by the Sellers in connection with
the Business, no Hazardous Substances have been generated or are being
used on such properties except in accordance with in all material
respects applicable Environmental Laws; (C) all real properties
presently owned, leased or operated by the Sellers in connection with
the Business are free from contamination of every kind, including
without limitation, groundwater, surface water, soil, sediment and air
contamination, except in each case to the extent that the presence of
any such contamination on such properties does not violate any
applicable Environmental Laws; (D) there have been no Releases (as such
term is defined pursuant to CERCLA) of Hazardous Substances on, upon,
into or from any real property presently or formerly owned, leased or
operated by the Sellers in connection with the Business, except in
accordance in all material respects with applicable Environmental Laws;
and (E) to Sellers' knowledge there have been no Releases of Hazardous
Substances on, upon, from or into any real property in the vicinity of
any real property presently owned, leased or operated by the Sellers in
connection with the Business which, through soil or groundwater
contamination, may have come to be located on such real property except
for Hazardous Substances whose presence on such real property does not
violate any applicable Environmental Laws; and
(iv) The Sellers have each Environmental Permit required under
any applicable Environmental Laws and are in compliance in all material
respects with the terms and conditions of each Environmental Permit.
"Environmental Permit" means a license, permit, certificate, approval
--------------------
and other authorization from any governmental authority having
jurisdiction over Environmental Laws.
(b) As used in this Agreement, "Sellers' Environmental Reports"
------------------------------
means all documents, reports, site assessments, data, communications or other
materials listed on Schedule 5.12 of the Disclosure Schedules and delivered to
the Buyer which contain any information with respect to actual or potential
violations of applicable Environmental Laws or actual or potential environmental
liabilities associated with the Business or any real property presently or
formerly owned, leased or operated by the Sellers in connection with the
Business or the environmental condition of such properties and adjacent
properties or relating to compliance with the Environmental Laws by the Sellers
in connection with the Business.
13
5.13 Equipment. Schedule 1.1(c) of the Disclosure Schedules sets forth
--------- ---------------
a complete and accurate list of all of the Equipment other than items having a
book or market value individually of less than $5,000. The Personal Property
Leases listed on Schedule 1.1(d) of the Disclosure Schedules include all leases
---------------
by the Sellers of any item of personal property used in the Business with annual
lease payments in excess of $5,000. The Equipment, and the personal property
held by the Sellers under the Personal Property Leases, are utilized by the
Sellers in the ordinary course of business and are in good condition and repair
for their present use in the Business.
5.14 Inventories. The Inventories consist solely of, and the
-----------
Inventories to be purchased by the Buyer hereunder will consist solely of,
material and goods of a quality and quantity which are usable or saleable in the
ordinary course of operation of the Business, as the case may be, net of any
reserve for excessive or obsolete inventories reflected on the September 30
Balance Sheet. The Inventories are adequate for present needs of the Business,
are fairly reflected on the books of account of the Sellers, stating items of
Inventory at the lower of cost or market value in accordance with generally
accepted accounting principles, consistently applied, with adequate allowance
for excessive or obsolete inventories.
5.15 Insurance. Schedule 5.15 of the Disclosure Schedules lists all
--------- -------------
policies of fire, liability, workmen's compensation, life, property and casualty
and other insurance owned or held by the Sellers in connection with the Business
or relating to any of the Acquired Assets. To the knowledge of the Company, such
policies of insurance are maintained with financially sound and reputable
insurance companies, funds or underwriters and are of the kinds and cover such
risks and are in such amounts and with such deductibles and exclusions as are
consistent with prudent business practice. All such policies (a) are in full
force and effect, (b) are sufficient for compliance by the Sellers with all
requirements of law and all agreements to which the Sellers are a party and (c)
provide that they will remain in full force and effect through the Closing Date.
The Sellers are not in default with respect to any of their obligations under
any of such insurance policies and have not received any notification of
cancellation of any such insurance policies. No insurance carrier has denied
coverage for any claim asserted by the Sellers with respect to the Business
since January 1, 1992, nor has any insurance carrier declined to provide any
coverage to the Sellers with respect to the Business since January 1, 1992
except for denials which did not have a material adverse effect on the Business.
5.16 Contracts.
---------
(a) Schedule 5.16(a) of the Disclosure Schedules sets forth a
----------------
complete and accurate list of all Contracts (as defined below) and bids for
contracts relating to the engineering and design, procurement and fabrication of
steel bridges to which either Seller is a party or by which either Seller is
bound or to which either Seller or any of the Acquired Assets is subject, except
(x) Contracts entered into in the ordinary course of business after the date
hereof and prior to the Escrow Closing Date, which will be identified to the
Buyer in writing prior to the Escrow Closing Date, and (y) Contracts terminable
by the Sellers upon 30 days' notice or less without the payment of any
termination fee or penalty. As used in this Agreement, the word "Contract" means
--------
the following with respect to or relating to the Business: (a) contracts and
other agreements with any current or former officer, director, employee,
consultant or shareholder or any partnership, corporation, limited liability
company, joint venture or any other entity in which
14
any such person has an interest; (b) agreements with any labor union or
association representing any employee; (c) contracts and other agreements for
the provision of products or services by the Sellers other than those entered
into in the ordinary course of the Business for products or services to the
extent that the amount payable by or to the Company thereunder is less than
$50,000; (d) agreements to secure the performance of bids, tenders, statutory
obligations, surety and appeal bonds, performance bonds or other security
agreements provided by any party in connection with the Business; (e) contracts
and other agreements for the sale of any of the Sellers' assets or properties
other than in the ordinary course of business or for the grant to any person of
any preferential rights to purchase any of the Sellers' assets or properties;
(f) joint venture agreements relating to the Business or by or to which any of
the Acquired Assets are affected or subject; (g) contracts or other agreements
under which the Sellers agree to share tax liability of any party, or to refrain
from competing with any party; (h) any contracts or other agreements with regard
to indebtedness for borrowed money; (i) contracts relating to any
confidentiality obligation by any party to such contract or dealing with the
obligation of either party to such contract with respect to the trade secrets of
the other party; or (j) any other contract or other agreement whether or not
made in the ordinary course of business to the extent that the amount payable by
or to the Sellers thereunder is more than $50,000. Each of the Contracts listed
on Schedule 5.16(a) of the Disclosure Schedules or any of the other Schedules
----------------
hereto is in full force and effect. The Sellers are not in breach in any
material respect of any of the provisions of any such Contract, nor, to the
knowledge of any Seller, is any other party to any such Contract in default
thereunder in any material respect, nor does any event or condition exist which
with notice or the passage of time or both would constitute a material default
thereunder. The Sellers have in all material respects performed all obligations
required to be performed by them to date under each such Contract.
(b) Schedule 5.16(b) of the Disclosure Schedules lists all
----------------
Contracts that include any provision the effect of which may be to enlarge or
accelerate any obligations of the Buyer to be assumed thereunder or give
additional rights to or require the consent of any other party thereto, or will
in any other way be affected by, terminate, lapse or result in a default by
reason of, the transactions contemplated by this Agreement; provided, however,
-------- -------
that in no event shall (x) it be a condition precedent to the consummation of
the transaction contemplated hereby that Sellers shall have obtained any such
consents from the other party or parties to such Contract, or (y) the failure of
the Sellers to have obtained any such consents constitute a breach of any of the
representations, warranties, covenants or agreements made by any Seller in this
Agreement.
(c) Sellers have provided Buyer a list of all of Sellers
executory contracts as of the date hereof relating to the engineering, design,
procurement and fabrication of steel bridges. To the knowledge of Sellers, each
such contract will produce the operating margins (calculated in accordance with
the historical practices of the Business) set forth on the list.
(d) Schedule 5.16(d) of the Disclosure Schedules lists all of
----------------
the outstanding surety bonds for Contracts of the Sellers as of the date hereof
(the "Bonds"), and with respect to each Bond: (i) the indemnitor, (ii) the
-----
surety firm issuing the Bond, (iii) the obligee, (iv) a description of the
Contract bonded, (v) the total and open dollar amount and percent of completion
of such Bonds, and (vi) the effective date and expiration date of the Bond.
Attached
15
to Schedule 5.16(d) of the Disclosure Schedules are true and accurate copies of
----------------
any and all Bonds and indemnity agreements relating thereto and other
documentation relating to and evidencing the Bonds. As of the date hereof, all
of the Bonds are in full force and effect and Sellers are not in default with
respect to any of the Bonds. The assignment and assumption of the
indemnification agreements with the sureties does not violate the terms of the
Bonds.
5.17 Compensation of and Contracts with Employees.
--------------------------------------------
(a) The Sellers have provided Buyer with a complete and
accurate list of (a) each consultant, independent contractor, employee, manager,
officer and director of the Sellers employed or engaged in the Business whose
annual compensation (including salary and any commissions and bonuses) is equal
to or greater than $50,000 and (b) the rate, character and amount of the
compensation (including salary and any commissions and bonuses) paid to each
such person for the year ended on December 31, 2000, and for the period through
September 30, 2001 (the "Compensation List"). There have been no changes in the
-----------------
rate or character of such compensation since September 30, 2001.
(b) Schedule 1.1(g) of the Disclosure Schedules sets forth a
---------------
correct and complete list of all collective bargaining agreements covering the
employees of the Sellers employed in the Business. The Sellers have furnished to
the Buyer correct and complete copies of all collective bargaining agreements
set forth on Schedule 1.1(g) of the Disclosure Schedules. Except as listed on
---------------
Schedule 1.1(g) and Schedule 2.2(d) of the Disclosure Schedules, the Sellers
--------------- ---------------
have no employment agreement or other contract, written or oral, with any
currently active employee (or former employee to the extent the Sellers have a
current obligation to such person) consultant, independent contractor, manager,
officer or director employed in the Business, including any agreement to provide
any bonus or benefit to any such person.
(c) Except as set forth on the Compensation List, since
December 31, 2000, the Sellers have not made any pension, bonus or other
payment, other than base salary, or become obligated to make any such payment,
to any consultant, independent contractor, employee, manager, officer or
director of the Sellers employed or engaged in the Business. The Sellers have no
outstanding loans or advances to employees employed in the Business.
5.18 Employee Benefit Plans.
----------------------
(a) Identification of Plans. Except for the arrangements set
-----------------------
forth on Schedule 5.18(a) of the Disclosure Schedules, the Sellers do not now
----------------
maintain or contribute to, and do not have any outstanding liability to or in
respect of or obligation under, any pension, profit-sharing, deferred
compensation, bonus, stock option, share appreciation right, severance, group or
individual health, dental, medical, life insurance, survivor benefit, or similar
plan, policy or arrangement, whether formal or informal, written or oral, for
the benefit of any director, officer, consultant or employee, whether active or
terminated, of the Sellers employed in the Business. Each of the arrangements
set forth on Schedule 5.18(a) of the Disclosure Schedules is hereinafter
----------------
referred to as an "Employee Benefit Plan" or "Plan," except that any such
--------------------- ----
arrangement which is a multi-employer plan shall be treated as an Employee
Benefit Plan only for purposes of Sections 5.18(d)(ii), (vi) and (viii) and
5.18(g) below.
16
(b) Delivery of Documents. The Sellers have heretofore
---------------------
delivered to Buyer true, correct and complete copies of each Employee Benefit
Plan of the Sellers identified in Schedule 2.1(d) of the Disclosure Schedules,
---------------
and with respect to each such Plan, true, correct and complete copies of (i) any
associated trust, custodial, insurance or service agreements, (ii) any annual
report, actuarial report, or disclosure materials (including specifically any
summary plan descriptions and summary of material modifications) submitted
to any governmental agency or distributed to participants or beneficiaries
thereunder in the current or any of the three (3) preceding calendar years and
(iii) the most recently received IRS (as defined in Section 13) determination
letters and any governmental advisory opinions, rulings, compliance statements,
closing agreements or similar materials specific to such Plan.
(c) Compliance with Terms and Law. Each Employee Benefit Plan
-----------------------------
identified in Schedule 2.1(d) of the Disclosure Schedules is and has heretofore
---------------
been maintained and operated in compliance with the terms of such Plan and with
the requirements prescribed (whether as a matter of substantive law or as
necessary to secure favorable tax treatment) by any and all statutes,
governmental or court orders, or governmental rules or regulations in effect
from time to time, including but not limited to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") and the Internal Revenue Code of
-----
1986, as amended ("Code") and applicable to such Plan. Each Employee Benefit
----
Plan which is intended to qualify under Section 401(a) of the Code and each
trust or other entity intended to qualify as a "voluntary employee benefit
association" within the meaning of Section 501(c)(9) of the Code and
associated with any Employee Benefit Plan is expressly identified as such on
Schedule 5.18(c) of the Disclosure Schedules and has been determined to be so
----------------
qualified by the IRS and nothing has occurred as to each which has resulted or
is likely to result in the revocation of such determination or which requires
action under the compliance resolution programs of the IRS to preserve such
qualification.
(d) Absence of Certain Events and Arrangements. Except as set
------------------------------------------
forth on Schedule 5.18(d) of the Disclosure Schedules,
----------------
(i) there is no pending or, to the best knowledge of
the Sellers, threatened legal action, proceeding or investigation,
other than routine claims for benefits, concerning any Employee Benefit
Plan identified in Schedule 2.1(d) of the Disclosure Schedules or to
---------------
the best knowledge of the Sellers any fiduciary or service provider
thereof and, to the best knowledge of the Sellers, there is no basis
for any such legal action or proceeding;
(ii) no liability (contingent or otherwise) to the
Pension Benefit Guaranty Corporation ("PBGC") or any multi-employer
----
plan has been incurred by either the Sellers or any Affiliate thereof
(other than insurance premiums satisfied in due course);
(iii) no reportable event, or event or condition which
presents a material risk of termination by the PBGC, has occurred
with respect to any Employee Benefit
17
Plan, or any retirement plan of an Affiliate of the Sellers, which
is subject to Title IV of ERISA;
(iv) no Employee Benefit Plan nor any party in interest with
respect thereof, has engaged in a prohibited transaction which would
subject the Sellers directly or indirectly to liability under
Section 409 or 502(i) of ERISA or Section 4975 of the Code;
(v) no communication, report or disclosure has been made
which, at the time made, did not accurately reflect the terms and
operations of any Employee Benefit Plan;
(vi) no Employee Benefit Plan identified in Schedule 2.1(d)
---------------
of the Disclosure Schedules provides welfare benefits subsequent
to termination of employment to employees or their beneficiaries except
to the extent required by applicable state insurance laws and Title I,
Part 6 of ERISA;
(vii) the Sellers have not announced their intention, or
undertaken (whether or not legally bound) to modify or terminate any
Employee Benefit Plan identified in Schedule 2.1(d) of the Disclosure
---------------
Schedules or adopt any arrangement or program which, once established,
would come within the definition of an Employment Benefit Plan and
would be maintained for the benefit of any director, officer,
consultant or employee, whether active or terminated, of the Sellers
employed in the Business; and
(viii) the Sellers have not undertaken to maintain any
Employee Benefit Plan identified in Schedule 2.1(d) of the
---------------
Disclosure Schedules for any period of time and each such Plan is
terminable at the sole discretion of the sponsor thereof, subject only
to such constraints as may be imposed by applicable law.
(e) Funding of Certain Plans. With respect to each Employee
------------------------
Benefit Plan for which a separate fund of assets is or is required to be
maintained, full and timely payment has been made of all amounts required of the
Sellers under the terms of each such Plan or applicable law, as applied through
the Escrow Closing Date, and no accumulated funding deficiency (as defined in
Section 302 of ERISA and Section 412 of the Code), whether or not waived, exists
with respect to any such Plan. The current value of the assets of each such
Employee Benefit Plan, as of the end of the most recently ended plan year of
that Plan, equals or exceeds the current value of all accrued benefits
liabilities under that Plan.
(f) Effect of Transactions. Except as set forth on Schedule
---------------------- --------
5.18(f) of the Disclosure Schedules, the execution of this Agreement and the
-------
consummation of the transactions contemplated herein will not result in any
payment (whether of severance pay or otherwise) becoming due from or under any
Employee Benefit Plan identified in Schedule 2.1(d) of the Disclosure Schedules
---------------
to any current or former director, officer, consultant or employee of the
Sellers employed or previously employed in the Business or result in the
vesting, acceleration of payment or increases in the amount of any benefit
payable to or in respect of any such current or former director, officer,
consultant or employee.
18
(g) Multi-employer Plans. Except as set forth in Schedule 5.18(g)
-------------------- ----------------
of the Disclosure Schedules, none of the Employee Benefit Plans is a
multi-employer plan. Except as set forth in Schedule 5.18(g) of the Disclosure
----------------
Schedules, with respect to the Business, neither of the Sellers (i) has incurred
any liability to a multi-employer plan, contingent or otherwise, that has not
been previously satisfied, on account of a discontinuance or reduction in
contributions thereto (including but not limited to a withdrawal or partial
withdrawal within the meaning of Title IV of ERISA), (ii) has experienced any
event that, within the following twelve months, will result in a withdrawal or
partial withdrawal as so defined, (iii) has incurred a reduction in
contributions such that if the current rate of contributions continues, a
seventy-percent decline in contributions (as defined in Section 4205 of ERISA)
will occur within the next three plan years. Neither of the Sellers has received
notice with respect to any multi-employer plan of (i) any failure by such plan
to satisfy the minimum funding requirements of Section 412 of the Code, (ii) any
application for or receipt of a waiver of such minimum funding requirements with
respect to such plan, or (iii) such plan's insolvency, entry into reorganization
within the meaning of Section 4241 of ERISA, intention to terminate or proposed
or threatened termination or that increased contributions may be required to
avoid a reduction in plan benefits regarding the imposition of any excise tax,
(iv) no such plan is a party to any pending merger or asset or liability
transfer, or (v) any PBGC proceedings against or affecting any such plan. The
Sellers have previously provided to the Buyer copies of all documents and other
information received by the Sellers from each multi-employer plan (or any of its
agents) to which the Sellers contributes pertaining to the Sellers' obligations
under such plan, including any materials pertaining to the computation of any
liability that may be imposed upon a cessation of or reduction in contributions
thereto.
(h) Absence of Certain Events. No event has occurred and no
-------------------------
condition exists that could subject Sellers to any fines, penalty, related
charges under Code Sections 511 or 5000, any section of Chapter 43 of the Code,
or under ERISA Sections 502(c), (i) or (I) or Section 4071 or the imposition of
a lien pursuant to Sections 401(a)(29) or 412(n) of the Code or pursuant to
ERISA.
(i) Definitions. For purposes of this Section 5.18,
-----------
"multi-employer plan," "party in interest," "current value," "accrued benefit,"
"reportable event" and "benefit liability" have the same meaning assigned such
terms under Sections 3, 4043(c) or 4001(a) of ERISA, and "Affiliate" means any
entity which under Section 414 of the Code is treated as a single employer with
the Sellers.
5.19 Labor Relations. With respect to the employees, independent
---------------
contractor and consultants employed or engaged in the Business, the Sellers are
in compliance in all material respects with all federal, state and local laws
respecting employment and employment practices, workplace safety and health,
terms and conditions of employment, wages and hours and nondiscrimination in
employment, and are not engaged in any unfair labor practice. There is no charge
or claim pending or, to the knowledge of the Sellers, threatened against the
Sellers with respect to the employees, independent contractors and consultants
employed or engaged in the Business alleging unlawful discrimination in
employment practices before any court or agency. There is no charge or claim
pending or, to the knowledge of the Sellers, threatened against the Sellers with
respect to the employees, independent contractors and consultants employed or
engaged in the Business with the federal Equal Employment Opportunity Commission
19
("EEOC"), the federal Department of Labor, the federal Occupational Safety &
----
Health Administration ("OSHA") or any similar state or local agency. There is no
----
charge or claim pending or, to the knowledge of the Sellers, threatened by any
current or former consultant, independent contractor, employee, director or
officer against the Sellers alleging: wrongful discharge, discharge in violation
of public policy, breach of contract, promissory estoppel, discrimination,
harassment, invasion of privacy, defamation, libel, slander, retaliation,
negligent infliction of emotional distress, or intentional infliction of
emotional distress; entitlement to wages, compensation or employee benefits;
violations of the Americans with Disabilities Act, the Age Discrimination in
Employment Act, Title VII of the Civil Rights Act of 1964, the Family
and Medical Leave Act, the Fair Labor Standards Act, the Employee Retirement
Income Security Act of 1974 (ERISA), or any other federal, state, or local law,
ordinance, regulation or order which may relate to employment. There is no
unfair labor practice charge filed by or against Sellers pending before the
National Labor Relations Board in connection with the employees, independent
contractors, and consultants employed or engaged in the Business. Sellers are
not aware of any unfair labor practice charge with the National Labor Relations
Board which is threatened against the Sellers by any employees, independent
contractors, or consultants employed or engaged in the Business or by any
exclusive bargaining representative of any of Sellers' employees employed or
engaged in the Business, whether certified or voluntarily recognized as the
exclusive bargaining representative. Sellers, with respect to the employees,
independent contractors and consultants employed or engaged in the Business, are
not named in or party to any non-unfair labor practice matter which currently is
pending before the National Labor Relations Board. There is no labor strike,
dispute, slow-down or work stoppage pending or, to the knowledge of the Sellers,
threatened against or involving any employees and consultants employed or
engaged in the Business. No one has petitioned within the last three (3) years,
and no one is now petitioning, for union representation of any of the Sellers'
employees employed in the Business. No grievance or arbitration proceeding
arising out of or under any collective bargaining agreement is pending against
the Sellers with respect to employees employed in the Business and no claim
therefor has been asserted. Except as listed on Schedule 5.19 of the Disclosure
-------------
Schedules, none of the employees of the Sellers employed in the Business is
covered by any collective bargaining agreement, and no collective bargaining
agreement with regard to any such employees is currently being negotiated by the
Sellers. The Sellers have not experienced any work stoppage in connection with
the Business during the last five years. The Sellers have operated the Business
at all times since November 6, 1986 in compliance with the requirements of the
Immigration Reform Control Act of 1986.
5.20 Intellectual Property.
---------------------
(a) Schedule 1.1(j) of the Disclosure Schedules sets forth a
---------------
complete and accurate list of (i) all patents, trademarks, trade names, domain
names, trade secrets, service marks, designs and copyrights used in or useful to
the Business and registered in the name of the Sellers, and all applications
therefor (collectively, the "Registered Intellectual Property"); (ii) all other
--------------------------------
Intellectual Property (as defined in Section 13) owned by the Sellers and used
in or useful to the Business (together with the Registered Intellectual
Property, the "Owned Intellectual Property"); (iii) all Intellectual Property
---------------------------
which the Sellers are licensed or authorized by others to use in connection with
the Business (the "Licensed Intellectual Property"); and (iv) all
------------------------------
20
Intellectual Property used in or useful to the Business which the Sellers have
licensed or authorized others to use (the "Licensor Intellectual Property").
------------------------------
(b) The Sellers own or have the sole and exclusive right to
use the Owned Intellectual Property, and have the right without restrictions to
use the Licensed Intellectual Property used or necessary for the Business as
presently conducted or proposed to be conducted, and the consummation of the
transactions contemplated hereby will not alter or impair any such right of the
Buyer to own and use the Licensed Intellectual Property in a similar manner. No
claims have been asserted, and to the knowledge of the Sellers no claims are
pending, by any Person regarding the use of any such Owned Intellectual
Property or Licensed Intellectual Property, or challenging or questioning the
validity or effectiveness of any license or agreement, and, to the knowledge of
the Sellers, there is no basis for such claim. To the Sellers' knowledge, the
use by the Sellers of the Owned Intellectual Property and the Licensed
Intellectual Property in the ordinary course of business does not infringe on
the rights of any Person.
(c) The Sellers have the legal right to license, assign and
transfer all the Licensor Intellectual Property that the Sellers have licensed
or authorized others to use. All licenses or other agreements pursuant to which
the Sellers have licensed or authorized others to use any Licensor Intellectual
Property are in full force and effect, and there is no default by any party
thereto. To the Sellers' knowledge, the license or transfer of any Licensor
Intellectual Property does not infringe on the rights of any person.
(d) All of the Registered Intellectual Property has been duly
registered in, filed in or issued by the United States Patent and Trademark
Office or the United States Register of Copyrights and has been properly
maintained and renewed in accordance with all applicable provisions of law and
administrative regulations of the United States and each such other
jurisdiction.
(e) Except as set forth in Schedule 5.20(e) of the Disclosure
----------------
Schedules, the Sellers have taken all steps required in accordance with sound
business practice to establish and preserve their ownership of all Intellectual
Property rights with respect to the Business. The Sellers have not made any such
information available to any Person other than employees or consultants of the
Sellers, except pursuant to written agreements requiring the recipients to
maintain the confidentiality of such information and appropriately restricting
the use thereof.
5.21 Suppliers and Customers. Sellers have delivered to Buyer a list
-----------------------
setting forth the ten (10) largest suppliers of the Business based on purchases
by the Business and the ten (10) largest customers of the Business based on
sales by the Business for the year ended December 31, 2000 and the eleven-month
period ending on November 30, 2001. The relationships of the Sellers with such
suppliers and customers are good commercial working relationships and no
supplier or customer of material importance to the Business has canceled or
otherwise terminated, or threatened in writing to cancel or otherwise to
terminate, its relationship with the Sellers or has during the last twelve (12)
months decreased materially, or threatened in writing to decrease or limit
materially, its services, supplies or materials for use in the Business or its
usage or purchase of the services or products of the Sellers, except for normal
cyclical changes related to such suppliers' or customers' businesses. Seller has
not received notice that
21
any supplier or customer of the Business intends to cancel or otherwise
substantially modify its relationship with the Sellers or to decrease materially
or limit its services, supplies or materials to the Sellers, or its usage or
purchase of the Sellers' services or products, and to the knowledge of the
Sellers, the consummation of the transactions contemplated hereby will not
adversely affect the Sellers' relationship with any such supplier or customer,
or the ability of the Buyer to conduct business with any such supplier or
customer after Closing in the same manner and on the same terms as the Sellers
currently enjoy.
5.22 Acquired Assets Complete. The Acquired Assets, when utilized with
------------------------
a labor force substantially similar to that currently employed by the Sellers,
are adequate and sufficient to conduct the Business as currently conducted by
the Sellers.
5.23 Collectibility of Accounts Receivable. All of the Accounts
-------------------------------------
Receivable (less the reserve for bad debts set forth on the September 30 Balance
Sheet) are or will be at the Escrow Closing Date valid and enforceable claims,
fully collectible and subject to no setoff or counterclaim known to Sellers as
of the date of this Agreement. The Sellers have no accounts or loans receivable
from any Person which is Affiliated with the Sellers or from any director,
officer or employee of Sellers.
5.24 No Undisclosed Liabilities. Except to the extent (a) reflected or
--------------------------
reserved against in the September 30 Balance Sheet, (b) incurred in the ordinary
course of the Business after the date of the September 30 Balance Sheet, or (c)
specifically described on any Schedule hereto as a liability or obligation of
the Sellers, the Sellers are not subject to any material liabilities or
obligations of any nature, whether accrued, absolute, contingent or otherwise in
connection with the Business (including without limitation as guarantors or
otherwise with respect to obligations of others), other than performance
obligations with respect to the Sellers' contracts in connection with the
Business that would not be required to be reflected or reserved against on a
balance sheet prepared in accordance with GAAP.
5.25 Taxes. The Sellers have duly filed with the appropriate
-----
government agencies all of the income, sales, use, employment and other Tax
returns and reports required to be filed by them. Except as set forth on
Schedule 5.25 of the Disclosure Schedules, no waiver of any statute of
-------------
limitations relating to Taxes has been executed or given by the Sellers with
respect to the Business which is currently in effect. All Taxes, assessments,
fees and other governmental charges upon the Sellers or upon any of its
properties, assets, revenues, income and franchises which are owed by the
Sellers with respect to any period ending on or before the Closing Date have
been paid, other than those currently payable without penalty or interest. The
Sellers have withheld and paid all Taxes required to be withheld or paid in
connection with amounts paid or owing to any employee, creditor, independent
contractor or third party. Except as disclosed on Schedule 5.25 of the
-------------
Disclosure Schedules, no Tax return of the Sellers is currently under audit by
any other taxing authority, and no taxing authority is now asserting or, to
Sellers' knowledge, threatening to assert against the Sellers any deficiency or
claim for additional Taxes or interest thereon or penalties in connection
therewith or any adjustment that would have a material adverse effect on the
Sellers.
22
5.26 Broker. Except as set forth on Schedule 5.26 of the Disclosure
------ -------------
Schedules, neither of the Sellers has retained, utilized or been represented by
any broker, agent, finder or intermediary in connection with the negotiation or
consummation of the transactions contemplated by this Agreement, and neither of
the Sellers has incurred or become liable for any broker's commission or
finder's fee relating to or in connection with the transactions contemplated by
this Agreement.
5.27 Potential Conflicts of Interest. No officer, director or
-------------------------------
stockholder (or Affiliate thereof) of the Sellers (a) owns, directly or
indirectly, any interest in (excepting not more than a 1% stock holding for
investment purposes in securities of publicly held and traded companies) or is
an officer, director, manager, employee or consultant of any Person (as defined
in Section 13) which is a competitor, lessor, lessee, customer or supplier of
the Business; (b) owns, directly or indirectly, in whole or in part, any
tangible or intangible property which the Sellers are using in the Business or
the use of which is necessary for the Business; or (c) has any cause of action
or other claim whatsoever against, or owes any amount to, the Sellers with
respect to the Business, except for claims in the ordinary course of business,
such as for accrued vacation pay, accrued benefits under Employee Benefit Plans
and similar matters and agreements.
5.28 Indebtedness. The Sellers with respect to the Business have no
------------
indebtedness for borrowed money outstanding at the date hereof.
5.29 Bank Accounts, Etc. Except as set forth on Schedule 1.1(m) of the
------------------ ---------------
Disclosure Schedules, there are no accounts or safe deposit boxes in any bank
used in the Business or into which any proceeds of the operation of the Business
are paid. Except as set forth on Schedule 5.29 of the Disclosure Schedules, no
-------------
Person has any power, whether singly or jointly, to sign any checks or to
withdraw any money or other property from any of the Business Accounts.
5.30 Chippewa Valley Track LLC.
-------------------------
(a) Chippewa Valley Track LLC ("Chippewa") is a limited
--------
liability company duly organized, validly existing and in good standing under
the laws of the State of Wisconsin. Chippewa has all requisite power and
authority to own, lease and operate its assets and to carry on the business as
it is now being conducted. Chippewa has no subsidiaries and owns no interest,
directly or indirectly, in any other business, enterprise, firm or corporation.
True and correct copies of the Articles of Organization and Operating Agreement
of Chippewa, including all amendments and supplements thereto, are set forth in
Schedule 5.30(a)(i) and Schedule 5.30(a)(ii) of the Disclosure Schedules,
------------------- --------------------
respectively. Chippewa has adequate working and permanent capital to conduct its
operations in accordance with its prior practices.
(b) The "percentage interest" held by the Company (the
"PDM Percentage Interest") is the only interest which the Sellers hold in
-----------------------
Chippewa, and the PDM Percentage Interest is fully paid and non-assessable and
was issued in compliance with all applicable laws.
(c) The PDM Percentage Interest is not subject to any proxies,
voting agreements or voting trusts or other similar arrangements which affect
the rights of the Company to vote the PDM Percentage Interest. Except as
described in Schedule 5.30(c) of the Disclosure
----------------
23
Schedules, the PDM Percentage Interest (i) is not subject to any buy-sell
agreements, options, right-of-first refusal or other agreements of any similar
nature currently existing with respect to the PDM Percentage Interest which in
any manner would affect the title of the Company to the PDM Percentage Interest
or the rights of the Company to sell the same free and clear of all claims of
third parties and (ii) does not require any authorization, consent or approval
of, exemption or other action by, or notice to, any governmental authority or
any other third party. The Company does not have any obligation to make any
additional contribution to Chippewa.
5.31 HSR Act. The Company is the "Ultimate Parent Entity" (as such
-------
term is defined in the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended, and the regulations promulgated thereunder (the "HSR Act")) of the
-------
Sellers. The total assets and annual net sales (each such term as defined in the
HSR Act), respectively, of the Company together with the total assets and annual
net sales, respectively, of all entities which the Company controls exceed
$100,000,000.
5.32 Disclosure. No representation or warranty by any Seller in this
----------
Agreement or in any exhibit, schedule, written statement, certificate or other
document delivered or to be delivered to the Buyer pursuant hereto or in
connection with the consummation of the transactions contemplated hereby
contains or will contain any untrue statement of a material fact or omits or
will omit to state a material fact required to be stated therein or necessary to
make the statements contained therein not misleading. To the knowledge of
Sellers, there is no fact relating particularly and uniquely to the Acquired
Assets or the Business and excluding information generally available to the
public which would be reasonably likely to result in a Material Adverse Effect
which has not been disclosed to the Buyer.
6. REPRESENTATIONS AND WARRANTIES OF THE BUYER. As a material
inducement to the Sellers to enter into this Agreement and consummate the
transactions contemplated hereby, the Buyer represents and warrants to each
Seller as follows:
6.1 Organization of Buyer; Authority. The Buyer is a limited liability
--------------------------------
company duly organized, validly existing and in good standing under the laws of
the State of Delaware. The Buyer has all requisite power and authority to
execute and deliver the Transaction Documents to which it is a party and to
carry out all of the actions required of it pursuant to the terms of such
Transaction Documents.
6.2 Approval; Binding Effect. The Buyer has obtained all necessary
------------------------
authorizations and approvals required for the execution and delivery of the
Transaction Documents to which it is a party and the consummation of the
transactions contemplated hereby and thereby. Each of the Transaction Documents
to which the Buyer is a party has been duly executed and delivered by the Buyer
and constitutes the legal, valid and binding obligation of the Buyer,
enforceable against the Buyer in accordance with its terms, except as
enforceability thereof may be limited by any applicable bankruptcy,
reorganization, insolvency or other laws affecting creditors' rights generally
or by general principles of equity.
6.3 Non-Contravention. The execution and delivery by the Buyer of the
-----------------
Transaction Documents to which it is a party and the consummation by the Buyer
of the transactions
24
contemplated hereby and thereby will not (a) violate or conflict with any
provisions of the limited liability company agreement and any other
organizational documents of the Buyer, each as amended to date; or (b)
constitute a violation of, be in conflict with, constitute or create a default
under, or result in the creation or imposition of any lien upon any property of
the Buyer pursuant to (i) any agreement or instrument to which the Buyer is a
party or by which the Buyer or any of its properties is bound or to which the
Buyer or any of its properties is subject, or (ii) any statute, judgment,
decree, order, regulation or rule of any court or governmental authority to
which the Buyer is subject.
6.4 Governmental Consents. Except as set forth on Schedule 6.4 of the
--------------------- ------------
Disclosure Schedules, no consent, approval or authorization of, or registration,
qualification or filing with, any governmental agency or authority is required
for the execution and delivery by the Buyer of the Transaction Documents to
which it is a party or for the consummation by the Buyer of the transactions
contemplated hereby or thereby.
6.5 Broker. The Buyer has not retained, utilized or been represented by
------
any broker, agent, finder or other intermediary in connection with the
negotiation or consummation of the transactions contemplated by this Agreement,
and the Buyer has not incurred or become liable for any broker's commission or
finder's fee relating to or in connection with the transactions contemplated by
this Agreement.
6.6 HSR Act. Kirtland Partners Ltd, an Ohio limited liability company
-------
(the "Investor"), is the "Ultimate Parent Entity" of the Buyer, as such term is
--------
defined in the HSR Act. The total assets and annual net sales (each such term as
defined in the HSR Act), respectively, of the Investor together with the total
assets and annual net sales, respectively, of all entities which the Investor
controls exceed $10,000,000.
6.7 Financing and Bonding. The Buyer has delivered to the Company a
---------------------
true, correct and complete copy of each commitment letter with respect to the
Buyer's commercial financing for the transactions contemplated by this Agreement
(the "Commitment Letters") and evidence of the bonding program for the Business
------------------
to be in place on or prior to the Escrow Closing Date. The Buyer does not have
actual knowledge of any fact or circumstance that would reasonably cause it to
believe that the financing contemplated by the Commitment Letters will not be
timely consummated on the Escrow Closing Date or that the bonding program for
the Business will not be in place on or prior to the Escrow Closing Date. The
financing contemplated by the Commitment Letters, together with the equity
investments in Buyer, is sufficient to consummate the transactions contemplated
by this Agreement and to satisfy Buyer's indemnification obligations under this
Agreement.
6.8 Going Concern; Solvency. As of the date hereof and as of the
-----------------------
Closing Date, both before and after giving effect to the transactions
contemplated hereby, (a) all of the Buyer's known debts and obligations (other
than the financing contemplated by the Commitment Letters) have been, or will
be, paid in full, (b) the sum of the Buyer's debts is not greater than the
Buyer's assets at a fair valuation, (c) the Buyer is generally paying its debts
as they become due and (d) the Buyer has reasonably sufficient capital to
conduct its business, to engage in all contemplated transactions, and to satisfy
its debts, contingencies and obligations as they become
25
due. The Buyer does not actually intend, by consummating the transactions
contemplated hereby, to engage in a transaction void or voidable under Section
548(a)(1)(A) of Title 11 of the United States Code or the comparable provisions
of any applicable state statute. In addition, the Buyer hereby covenants and
agrees that, notwithstanding anything to the contrary contained in this
Agreement, for the period ending six (6) months after the Closing, the Buyer
shall not transfer any material portion of its assets or properties to any third
party for less than fair value or to any Affiliate, in either case without the
third party or Affiliate, as the case may be, first delivering to the Sellers an
assumption agreement in a form acceptable to the Sellers pursuant to which such
third party or Affiliate shall assume a pro rata portion of the Buyer's
outstanding obligations under this Agreement.
6.9 Condition of the Assets. The Buyer has conducted all due
-----------------------
diligence that the Buyer deems necessary or desirable with respect to the
Acquired Assets, this Agreement and the transactions contemplated hereby in
order for it to enter into this Agreement and consummate the transactions
contemplated hereby. Except for the limited representations of the Sellers
specifically set forth in this Agreement, the Buyer will rely solely upon such
due diligence in acquiring the Acquired Assets and in assuming the Assumed
Obligations. Without limiting the generality of the foregoing, the Buyer
acknowledges that the Sellers make and will make no representation or warranty
concerning environmental conditions heretofore, now or hereafter existing on
properties adjoining or proximate to the Acquired Assets. Notwithstanding
anything to the contrary in this Agreement or any warranty deed or other
document executed in connection with the transactions contemplated hereby, it is
expressly understood and agreed that the Buyer is acquiring the Acquired Assets
"AS IS," "WHERE IS" and "WITH ALL FAULTS", and that the Sellers have not made
and do not and will not make any representations or warranties, express or
implied, including any with respect to the quality, physical condition,
expenses, legal status, zoning, value, utility or development or operating
potential of the Acquired Assets, or any other matter or thing affecting or
relating to the Acquired Assets, the Assumed Obligations, or this Agreement
(including, without limitation, warranties of merchantability and/or of fitness
for a particular purpose) which might be pertinent in considering whether to
purchase the Acquired Assets, assume the Assumed Obligations or to make and
enter into this Agreement, except, in each case, to the extent of the limited
representations set forth in this Agreement. The Sellers are not liable or bound
in any manner by any warranties, either expressed or implied, guaranties, or any
promises, statements, representations or information pertaining to the Acquired
Assets or to the value thereof made or furnished by any broker or any real
estate agent, employee, servant or other Person representing or purporting to
represent the Sellers. As of the date of this Agreement, the Buyer is not aware
of any events, facts or circumstances which, individually or in the aggregate,
have or would have a Material Adverse Effect.
7. CONDUCT OF BUSINESS BY SELLERS PENDING CLOSING. Each Seller
covenants and agrees that, from and after the date of this Agreement and until
the Closing, except as otherwise specifically consented to or approved by the
Buyer in writing:
7.1 Full Access. The Sellers shall afford to the Buyer and its
-----------
authorized representatives full access during normal business hours to all
properties, assets, books, records, tax returns, financial information,
contracts and documents of the Sellers and a full opportunity to make such
reasonable investigations as they shall desire to make of the Sellers or with
respect
26
to the Acquired Assets. The Sellers shall furnish or cause to be
furnished to the Buyer and its authorized representatives all such information
with respect to the Business and with respect to the Acquired Assets as the
Buyer may reasonably request.
7.2 Carry on in Regular Course. The Sellers shall maintain the
--------------------------
Acquired Assets in good operating condition and repair, and make all necessary
renewals, additions and replacements thereto consistent with past practices, and
shall carry on the Business diligently and substantially in the same manner as
heretofore and shall not make or institute any unusual or novel methods of
manufacture, purchase, sale, lease, management, accounting or operation. Without
limiting the foregoing, the Sellers shall continue to pay trade payables and
expenses of the Business, maintain inventory levels and fund capital
expenditures in the ordinary course of the Business consistent with past
practices, and except as permitted by Section 7.4 hereof, shall not withdraw any
cash from the Business Accounts other than for such purposes.
7.3 No General Increases. The Sellers shall not grant any general or
--------------------
uniform increase in the rates of pay of employees of the Business, nor grant any
general or uniform increase in the benefits under any bonus or pension plan or
other contract or commitment to, for or with any such employees. The Sellers
shall not increase the compensation payable or to become payable to officers,
key salaried employees or agents of the Business, or increase any bonus,
insurance, pension or other Employee Benefit Plan, payment or arrangement made
to, for or with any such officers, key salaried employees or agents.
7.4 Dividends, Issuances, Repurchases, etc.
--------------------------------------
(a) PDM Florida shall not declare or pay any dividends
(whether in cash, shares of stock or otherwise) on, or make any other
distribution, directly or indirectly, in respect of any shares of its capital
stock, or issue, purchase, redeem or acquire for value any shares of its capital
stock.
(b) Any provision of this Agreement to the contrary
notwithstanding, on the Escrow Closing Date the Sellers shall transfer or cause
to be transferred the cash amount of Thirty Million Five Hundred Thousand
Dollars ($30,500,000) (the "Cash Amount") from the Business Accounts to a
-----------
Company controlled account designated by Ironbridge Acquisition Corp. (the
"Ironbridge Account"). If as of the Escrow Closing Date the available cash in
------------------
the Business Accounts is not sufficient to permit the transfer of the Cash
Amount to the Ironbridge Account, the Purchase Price shall automatically be
increased by an amount equal to the difference between the Cash Amount and the
amount available in the Business Accounts for transfer by Sellers to the
Ironbridge Account.
7.5 Contracts and Commitments. The Sellers shall not enter into any
-------------------------
contract for the design, procurement and fabrication of steel bridges in excess
of Two Million Five Hundred Thousand Dollars ($2,500,000) or any other
commitment or engage in any transaction with respect to the Business involving a
commitment of more than Fifty Thousand Dollars ($50,000) or otherwise not in the
ordinary course and consistent with the prior practices of the Business. The
bids for contracts relating to the engineering and design, procurement and
fabrication of steel bridges listed on Schedule 5.16(a) of the Disclosure
----------------
Schedules shall not be modified in any
27
material respects without the prior written consent of the Buyer. All contracts
and commitments entered into by Sellers after the date of this Agreement shall
expressly permit their assignment to Buyer.
7.6 Purchase and Sale of Capital Assets. Other than pursuant to this
-----------------------------------
Agreement, the Sellers shall not purchase or sell or otherwise dispose of any
capital asset of the Business with a market value in excess of $50,000, or any
such capital assets with an aggregate market value in excess of $100,000,
without the prior written consent of the Buyer, and in no event shall
purchase, sell or otherwise dispose of any capital asset other than in
the ordinary course of the Business and consistent with past practices.
7.7 Insurance. The Sellers shall maintain with financially sound and
---------
reputable insurance companies, funds or underwriters adequate insurance for the
Business (including without limitation the insurance described on Schedule 5.15
-------------
of the Disclosure Schedules) of the kinds, covering such risks and in such
amounts and with such deductibles and exclusions as are consistent with past
practice.
7.8 Preservation of Organization. The Sellers shall use all
----------------------------
commercially reasonable efforts to preserve the organization of the Business
intact, to keep available to the Buyer the present key officers and employees of
the Sellers employed in the Business and to preserve for the Buyer the present
relationships of the Sellers' suppliers, customers, independent contractors and
others having business relations with the Sellers in the Business.
7.9 No Default. The Sellers shall not do any act or omit to do any
----------
act, or permit any act or omission to act, which will cause a material breach of
any contract, commitment or obligation of the Sellers with respect to the
Business, including without limitation any of the Personal Property Leases, Real
Property Lease, Permits, Insurance Policies, Employee Agreements or Contracts,
provided, however, that in no event shall (x) it be a condition precedent to the
-------- -------
consummation of the transaction contemplated hereby that Sellers shall have
obtained any consents from the other party or parties to any Personal Property
Leases, Real Property Lease, Permits, Insurance Policies, Employee Agreements or
Contracts, or (y) the failure of Sellers to have obtained any such consents
constitute a breach of any of the representations, warranties, covenants or
agreements made by any Seller in this Agreement.
7.10 Compliance with Laws. The Sellers shall comply in all material
--------------------
respects with all laws, regulations and orders applicable with respect to the
Business or the Acquired Assets.
7.11 Advice of Change. The Sellers shall promptly advise the Buyer in
----------------
writing of any action or condition which is reasonably likely to result in a
Material Adverse Effect.
7.12 No Shopping.
-----------
(a) After the date hereof and prior to the Closing or earlier
termination of this Agreement, the Company shall not, and shall not permit any
of its subsidiaries to, initiate, solicit, negotiate, encourage or provide
confidential information to facilitate, and the Company shall, and shall cause
its subsidiaries to, (i) cause any officer, director or employee of, or any
attorney,
28
accountant or other agent retained by it and (ii) cause any financial
advisor or investment banker retained by it, not to initiate, solicit,
negotiate, encourage or provide non-public or confidential information to
facilitate, any proposal or offer to acquire all or any substantial part of the
Acquired Assets or the Business, whether by merger, purchase of, tender offer or
otherwise, whether for cash, securities or any other consideration or
combination thereof, other than with respect to the transactions contemplated by
the Merger Agreement (any such transactions being referred to herein as
"Acquisition Transactions").
------------------------
(b) Notwithstanding the provisions of paragraph (a) above, the
Company may, in response to an unsolicited written proposal with respect to an
Acquisition Transaction, furnish (subject to a confidentiality agreement
substantially the same as the confidentiality agreement signed by Buyer or its
Affiliate in connection with the transactions contemplated by this Agreement)
confidential or non-public information concerning its business, properties,
assets or the components of and assumptions used in the calculation of the
Purchase Price (as defined in Section 3.1) to a financially capable corporation,
partnership, person or other entity or group (a "Potential Acquirer") or
------------------
negotiate with such Potential Acquirer if (i) it has in connection therewith
complied with subsection (c) of this Section, and (ii) based upon advice of
outside legal counsel to the Board or any special committee of the Board formed
to review and evaluate the transactions contemplated by this Agreement, the
Board and/or special committee determines in good faith that it is more likely
than not that the failure to provide such confidential or non-public information
to such Potential Acquirer would constitute a breach of its fiduciary duty to
its shareholders.
(c) In the event the Company shall determine to provide any
information or negotiate as described in paragraph (b) above, or shall receive
any offer of the type referred to in paragraph (b) above, it shall promptly (and
in any event, at least one (1) day prior to providing information or commencing
negotiations) inform the Buyer that information is to be provided, that
negotiations are to take place or that an offer has been received and shall
furnish to the Buyer the identity of the person receiving such information or
the proponent of such offer, if applicable, and, if an offer has been received,
a description of the material terms thereof.
7.13 Cooperation. The Sellers shall use all commercially reasonable
-----------
efforts to cause the satisfaction of the conditions precedent contained herein
and to cooperate with all reasonable requests of the Buyer and Buyer's counsel
or agents in connection with the consummation of the transactions contemplated
hereby, including using all commercially reasonable efforts to provide Buyer
with (x) a complete list of the members of Chippewa and their respective
"percentage interests" in the equity ownership in Chippewa and (y) a true and
correct list of (i) the General Manager of Chippewa, (ii) the officers of
Chippewa, and (iii) the bank accounts of Chippewa.
8. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS. The obligation of
the Buyer to consummate the Closing shall be subject to the satisfaction at or
prior to the Escrow Closing Date and the Closing, as applicable, of each of the
following conditions (to the extent noncompliance is not waived in writing by
the Buyer):
29
8.1 Compliance with Agreement. Each Seller shall have performed and
-------------------------
complied with all of its obligations under this Agreement to be performed or
complied with under this Agreement in all material respects by it on or prior to
the Closing Date.
8.2 No Material Adverse Effect. There shall not have been, and shall
--------------------------
not be a reasonable threat of the occurrence of, a Material Adverse Effect.
8.3 Opinion of Counsel. Xxxxxxxx Xxxxxxxxx Professional Corporation,
------------------
counsel to the Sellers, shall have delivered to the Buyer and the Escrow Agent
a written opinion, addressed to the Buyer, Xxxxxx Financial, Inc. and the
Escrow Agent and dated the Closing Date, substantially in the form of Exhibit M
---------
hereto.
8.4 No Litigation. No restraining order or injunction shall prevent
-------------
the transactions contemplated by this Agreement.
8.5 Buyer Financing. The receipt by Buyer of the financing described
---------------
in the Commitment Letters and a bonding program consistent with the information
delivered to the Company pursuant to Section 6.7 of this Agreement.
8.6 Delivery of Documents and Other Items. On or prior to the Escrow
-------------------------------------
Closing Date, all documents and other items specified in Section 4.3 hereof and
required to be delivered by Sellers shall have been delivered to the Escrow
Agent.
8.7 Board Approval. The Company shall have delivered to the Escrow
-------------
Agent as a Purchase Escrowed Item, the written consent of the sole shareholder
of each Seller in the forms attached hereto as Exhibit P and Exhibit Q and a
--------- ---------
certified copy of a resolution of the Board of Directors of the Company, in each
case authorizing and approving the transactions contemplated by this Agreement.
8.8 Government Approvals and HSR Filings. The receipt by Buyer and
------------------------------------
Sellers of all government approvals and consents required for the transactions
contemplated by this Agreement. In addition, all required filings under the HSR
Act shall have been completed and all applicable time limitations under such Act
shall have expired without a request for further information by the relevant
federal authorities under such Act, or in the event of such a request for
further information, the expiration of all applicable time limitations under the
Act shall have occurred without the objection of such federal authorities.
9. CONDITIONS PRECEDENT TO SELLERS' OBLIGATIONS. The obligation of
the Sellers to consummate the Closing shall be subject to the satisfaction, at
or prior to the Escrow Closing Date and the Closing, as applicable, of each of
the following conditions (to the extent noncompliance is not waived in writing
by the Sellers):
9.1 Representations and Warranties True at Closing. The
----------------------------------------------
representations and warranties made by the Buyer in this Agreement shall be true
and correct in all material respects at and as of the Escrow Closing Date with
the same effect as though such representations and warranties had been made or
given at and as of the Escrow Closing Date; and such
30
representations and warranties shall be true and correct in all material
respects at and as of the Closing Date with the same effect as though such
representations and warranties had been made or given at and as of the Closing
Date.
9.2 Compliance with Agreement. The Buyer shall have performed and
-------------------------
complied with all of its obligations under this Agreement that are to be
performed or complied with by it at or prior to the Closing.
9.3 Delivery of Documents and Other Items. On or prior to the Escrow
-------------------------------------
Closing Date, all documents and other items specified in Section 4.3 hereof and
required to be delivered by the Buyer shall have been delivered to the Escrow
Agent.
9.4 Opinion of Counsel. Xxxxx & Xxxxxx LLP, counsel to the Buyer,
------------------
shall have delivered to the Sellers and the Escrow Agent a written opinion,
dated the Closing Date and addressed to the Sellers, Xxxxxx Financial, Inc. and
the Escrow Agent, substantially in the form of Exhibit N hereto.
---------
9.5 No Litigation. No restraining order or injunction shall prevent
-------------
the transactions contemplated by this Agreement.
9.6 Merger. The Merger shall have been consummated and the requisite
------
shareholder vote shall have been obtained to approve the transactions
contemplated by this Agreement on or prior to the Closing Date.
9.7 HSR Filings. All required filings under the HSR Act shall have
-----------
been completed and all applicable time limitations under such Act shall have
expired without a request for further information by the relevant federal
authorities under such Act, or in the event of such a request for further
information, the expiration of all applicable time limitations under the Act
shall have occurred without the objection of such federal authorities.
10. CERTAIN COVENANTS.
10.1 Confidential Information. Any and all information disclosed by
------------------------
the Buyer to any Seller or by any Seller to the Buyer as a result of the
negotiations leading to the execution of this Agreement, or in furtherance
thereof, which information was not already known to the Sellers or to the Buyer,
as the case may be, shall remain confidential to each Seller and the Buyer and
their respective employees, agents and investors until the Closing Date and, if
the Closing occurs, in the Sellers' case, from and after the Closing Date,
except to the extent that the Buyer in its reasonable judgment must disclose any
such information on a consolidated basis to banks and other institutional
lenders in the process of procuring the loan or loans of funds for the purchase
contemplated herein. If the Closing does not take place for any reason, each
Seller and the Buyer agrees to return (or certify that it has destroyed) all
copies, summaries and excerpts of such information to the disclosing party, and
agrees not to further divulge or disclose any such information at any time in
the future unless it has otherwise become public. The information intended to be
protected hereby is confidential or proprietary data of the Sellers or the Buyer
which shall include, but not be limited to, financial information, customers,
sales representatives,
31
and anything else having an economic or pecuniary benefit to the Buyer or any
Seller, respectively.
10.2 Non-Competition. Each Seller acknowledges that the covenants and
---------------
agreements in this Section 10.2 are a condition precedent to the Buyer's
obligations to purchase the Acquired Assets from the Sellers under this
Agreement, and that the Buyer would not purchase the Acquired Assets but for
agreements of each of the Sellers with the Buyer in this Section 10.2. Each
Seller and the Buyer acknowledges that from and after the Closing the Buyer will
sell products and services to customers located throughout the world and
that engagement by any Seller in the Business anywhere in the world could cause
the Buyer irreparable damage. For a period from the date hereof until the fifth
anniversary of the Closing Date, neither of the Sellers shall, without the prior
written consent of the Buyer, (i) engage anywhere in the world, directly or
indirectly, alone or as a shareholder (other than as a holder of less than 1% of
the capital stock of any publicly-traded corporation), partner, manager or
consultant, in any business organization that is engaged or becomes engaged in a
business that is the same or similar to the Business, or for the benefit of the
Buyer subsequent to Closing, (ii) divert to any competitor of the Buyer or its
Affiliates any customer of the Buyer or its Affiliates, or (iii) solicit or
encourage any officer, employee or consultant of the Buyer or any of its
Affiliates to leave its employ for employment by or with the Sellers or any
competitor of the Buyer or any of its Affiliates. If at any time the provisions
of this Section 10.2 shall be determined to be invalid or unenforceable, by
reason of being vague or unreasonable as to area, duration or scope of activity,
this Section 10.2 shall be considered divisible and shall become and be
immediately amended to only such area, duration and scope of activity as shall
be determined to be reasonable and enforceable by the court or other body having
jurisdiction over the matter; and each Seller agrees that this Section 10.2 as
so amended shall be valid and binding as though any invalid or unenforceable
provision had not been included herein.
10.3 Use of Name. The Buyer is purchasing all of the Sellers' rights
-----------
to the business names of the Sellers used in the Business and therefore the
Sellers shall not be entitled to use the name "PDM Bridge" or variations thereof
as corporate or business names or titles anywhere in the world from and after
the Closing. PDM Florida shall, simultaneously with the Closing, undertake and
promptly pursue all necessary action to change its business and corporate names
to new names bearing no resemblance to its present name so as to permit the use
of such name by the Buyer provided that, for a period of 180 days after such
time as the name of PDM Florida is so amended, the Company shall have the right
to use the words "Pitt-Des Moines" and the initials "PDM" as its tradename, but
only for the purposes of managing the remaining assets of the Sellers and
identifying itself as the appropriate business entity in dealing with third
parties to facilitate the sale of any of such assets and not for any other
purpose, including, without limitation, use of "Pitt-Des Moines" or "PDM" as a
trademark for the purpose of marketing or promoting any product or service.
Notwithstanding anything to the contrary in the foregoing, any subsidiary of the
Company, other than PDM Florida may continue to use the initials "PDM" in its
corporate name or in any tradename in the conduct of its business for a period
of one year from the Closing Date.
32
10.4 Employees.
---------
(a) The Buyer agrees to make offers of employment to all of
the Sellers' employees employed in the Business on the Closing Date. Each such
offer of employment will be at the same base salary (or hourly compensation)
level as in effect, with respect to such employee, immediately prior to the
Closing Date. Each such employee who accepts such offer of employment is
referred to hereinafter as a "Transferred Employee," and all such employees
--------------------
collectively as the "Transferred Employees." The Buyer and the Sellers agree to
---------------------
utilize the "Standard Procedure" provided for in Section 4 of Revenue Procedure
96-60, 1996-2 Cumulative Bulletin 399, with respect to filing and furnishing
Internal Revenue Service forms W-2, W-3 and 941 with respect to those employees
who are hired by the Buyer as of the Closing. The Buyer agrees to provide to the
Sellers access to those employment records of the Sellers' former employees
which are then in the Buyer's possession or under the Buyer's control for the
purposes of preparing, filing and furnishing such forms.
(b) At Closing, the Buyer shall assume the collective bargaining
agreements applicable to the hourly employees of the Sellers employed in the
Business, whether by an actual assumption of the collective bargaining
agreements set forth in Schedule 1.1(g) of the Disclosure Schedules, or by the
execution of a separate agreement with the union that is a party to such
collective bargaining agreements.
(c) (i) (A) From and after the Closing Date, the Buyer shall
assume, and shall honor, pay, perform and satisfy when due any and all
liabilities, obligations and responsibilities to, or in respect of, each
Transferred Employee, arising under the terms of, or in connection with, any
Assumed Plan Obligations, in each case, in accordance with the terms thereof in
effect immediately prior to the date hereof, with respect to events or claims
arising at any time; provided, that nothing contained herein shall constitute a
commitment or obligation on the part of the Buyer to continue any Employee
Benefit Plan listed on Schedule 2.1(d) of the Disclosure Schedules after the
Closing Date except that Buyer shall provide, or shall cause to be provided,
effective commencing on the Closing Date, coverage to all current and former
employees of the Sellers (including any employees who do not accept the offer of
employment described in Section 10.4(a) hereof), and their spouses and
dependents, under a group health plan which does not contain any waiting period
or exclusion or limitation with respect to any pre-existing conditions, and the
Buyer shall be solely responsible for compliance with the requirements of
Section 4980B of the Code and part 6 of subtitle B of Title I of ERISA
("COBRA"), including, without limitation, the provision of continuation
-----
coverage, with respect to all such current and former employees, spouses and
dependents, for whom a qualifying event occurs before, on or after the Closing
Date. The terms "group health plan," "continuation coverage," "qualifying event"
and "qualified beneficiary" are used in this Section 10.4(c)(i)(A) with the
respective meanings ascribed thereto in COBRA.
(B) The Buyer shall be solely responsible for and shall
indemnify and hold the Company and its subsidiaries harmless from any
obligations or Losses relating to claims made by any of the Transferred
Employees for their compensation, severance or termination pay, benefits or
notice under any applicable Federal, state or local law or under any plan,
policy, practice or agreement, in each case, that accrues after the Closing Date
and
33
arises as a result of their employment or separation from employment with
the Buyer or its subsidiaries after the Closing Date.
(ii) Accrued but unpaid vacation, sick or other paid time
off with respect to all employees of the Business as of the Closing Date,
including, without limitation, the Transferred Employees, shall, to the extent
permitted by applicable law, be assumed by the Buyer and paid by the Buyer in
accordance with the terms of the applicable policies and procedures of the
Company and its subsidiaries in effect on the date hereof.
(iii) In the event of any "plant closing" or "mass layoff"
by the Buyer, as defined by the Federal Worker Adjustment Retraining
Notification Act, 29 U.S.C. ss. 2101 et seq. ("WARN"), or any state law
----
equivalent, which shall occur after the Closing Date, the Buyer shall
comply with all of the requirements of WARN and any applicable state law
equivalent and shall indemnify the Company and its subsidiaries from and against
any Losses incurred by the Company and its subsidiaries as the result of any
action against the Buyer or the Company (and/or its subsidiaries) under WARN.
(d) Participation and Crediting of Service Under Employee
-----------------------------------------------------
Plans and Practices. Following Closing, (i) the Buyer shall waive any waiting
-------------------
periods, exclusions, or pre-existing condition limitations that may otherwise be
applicable to Transferred Employees, and their spouses and eligible dependents,
under any benefit plans of the Buyer, and (ii) the Buyer shall honor or cause to
be honored all premiums, co-payments and deductibles paid by the Transferred
Employees, and their spouses and eligible dependents, during the plan year in
which Closing occurs under the employee welfare benefit plans and arrangements
of the Company and its subsidiaries up to (and including) the Closing Date.
Following Closing, each employee benefit plan or arrangement and employee
compensation policy or practice sponsored by the Buyer or its Affiliates shall
credit, for all purposes (except for benefit accruals under any defined benefit
pension plans), all service of the Transferred Employees, and other employees
and officers of the Company and its subsidiaries, with the Company and its
subsidiaries (and their respective predecessors) to the same extent such service
was taken into consideration under comparable employee benefit plans of the
Company and its subsidiaries.
10.5 Bringdown of Seller's Representations. On the Escrow Closing
-------------------------------------
Date, the Company shall deliver to Buyer a certificate (a "Bringdown
---------
Certificate") executed by the President or any Vice President of the Company
-----------
certifying that, as of the Escrow Closing Date, the representations and
warranties made by either Seller in this Agreement are true and correct in all
material respects, except for a change in facts and circumstances which requires
a change in any such representation and warranty, and in such event the
certificate shall specify any such change in reasonable detail. Sellers'
representations and warranties set forth in such certificate shall not survive
the Escrow Closing Date (it being expressly understood and agreed that,
notwithstanding anything to the contrary (express or implied) set forth herein,
in the case of any breach by either Seller of any of such Seller's
representations and warranties, Buyer's sole right shall be the exercise (if it
is entitled to do so) of its right of termination pursuant to Section 12(a)(iii)
hereof (and Buyer's sole remedies in connection therewith shall be those
expressly set forth in Section 12 hereof) and neither Seller shall at any time
(whether before, on or after the Escrow Closing Date) have any further liability
whatsoever with respect to any such
34
breach of either Seller's representations and warranties). If, and only if, all
of the changes in Sellers' representations and warranties set forth in such
Bringdown Certificate, taken in the aggregate, would have a Material Adverse
Effect, then Buyer shall have the right by written notice to Seller, actually
received by Seller, not later than the expiration of the Offer (as defined in
the Merger Agreement) to terminate this Agreement pursuant to Section 12(a)(iii)
hereof. In the event that Seller shall deliver one or more new Escrow Date
Notification Certificates pursuant to the terms of Section 4.2 hereof setting
forth a new Escrow Closing Date, Seller shall, on each such new Escrow Closing
Date, deliver to Buyer a new Bringdown Certificate certifying as to the matters
set forth above in this Section 10.5 as of such new Escrow Closing Date.
10.6 Further Assurances. The parties, at any time after the execution
------------------
of this Agreement and prior to Closing, will execute, acknowledge and deliver
any further assignments, conveyances and other assurances, documents and
instruments, and take such other actions, reasonably requested by the other
party for the purpose of performing the obligations created hereunder.
10.7 Subcontracting. Nothing in this Agreement will constitute a
--------------
Transfer or an attempted Transfer of any Contract or Permit which is not capable
of being Transferred without the consent, approval, novation or waiver of a
third-party or any Contract or Permit the Transfer or attempted Transfer of
which would constitute a breach of such Contract or Permit or a violation of any
applicable law (collectively, the "Nonassignable Contracts" and the
-----------------------
"Nonassignable Permits," respectively). To the extent that any consent,
---------------------
approval, novation or waiver with respect to a Nonassignable Contract or
Nonassignable Permit is not obtained on or prior to the Closing Date, Sellers
will, at Buyer's reasonable request and direction, in any reasonable and lawful
arrangement (including entering into a subcontract with Buyer), seek to provide
Buyer the benefits and risks of such Nonassignable Contract or Nonassignable
Permit to the extent relating to the Business for the period commencing with the
Closing Date and continuing until the earlier of (i) the expiration of the
original term of the applicable Nonassignable Contract or Nonassignable Permit,
(ii) any Seller's receipt of written notice from Buyer that Buyer has obtained
an adequate replacement for such Nonassignable Contract or Nonassignable Permit
or (iii) the assignment to Buyer of the applicable Nonassignable Contract or
Nonassignable Permit. Buyer shall, pursuant to the provisions of Section 11 of
this Agreement, indemnify, defend and hold harmless Sellers from any and all
Losses arising out of such requested cooperation and arrangements; provided
that, to the extent the parties are successful in providing such remaining
benefits, if any, of such Nonassignable Contract or Nonassignable Permit to
Buyer, Buyer will pay, honor, perform and discharge when due the corresponding
liabilities, obligations and commitments of either Seller arising thereunder;
and, provided further that, to the extent the parties are not successful in so
----------------
providing such remaining benefits, if any, of any Nonassignable Contract or
Nonassignable Permit to Buyer, the Company will take instructions from the Buyer
with respect to the disposition of such Nonassignable Contract or Nonassignable
Permit.
10.8 Completion of Merger. The Company shall use all commercially
--------------------
reasonable efforts to cause the performance of the Merger Agreement and the
consummation of the Merger. Unless the Company is otherwise excused from
consummation of the Closing by the terms of this Agreement, the Company shall
not, without the prior written consent of Buyer:
35
(a) waive any right to require performance of the Merger
Agreement by any other party thereto;
(b) amend, modify or supplement the Merger Agreement in any
manner that has the effect of excusing performance of the Merger Agreement by
the Company or any other party thereto; or
(c) consent to any termination of the Merger Agreement.
10.9 HSR Filings. All required filings under the HSR Act shall be
-----------
made no later than two (2) Business Days after the date of this Agreement.
11. NO SURVIVAL; INDEMNIFICATION.
11.1 No Survival of Representations and Warranties. The
---------------------------------------------
representations and warranties of the parties made in this Agreement or
otherwise made orally or in writing in connection with the transactions
contemplated hereby shall not survive the Closing.
11.2 Indemnity by the Sellers. Each Seller jointly and severally
------------------------
agrees to indemnify and hold the Buyer harmless from and with respect to any and
all claims, liabilities, losses, damages, costs and expenses, including without
limitation the reasonable fees and disbursements of counsel (collectively, the
"Losses"), related to or arising directly or indirectly out of any failure or
------
any breach by either Seller of any covenant (a) made by the Sellers which, by
its terms, is to be performed after the Closing; or (b) which arises in
connection with the Excluded Liabilities.
11.3 Indemnity by the Buyer. The Buyer agrees to indemnify and hold
----------------------
the Sellers harmless from and with respect to any and all Losses, related to or
arising directly or indirectly out of (a) any failure or any breach by the Buyer
of any covenant (i) made by the Buyer which, by its terms, is to be performed
after the Closing or (ii) which arises in connection with the Assumed
Obligations or (b) any failure of the Sellers to obtain any consent of any third
party to the consummation of the transactions contemplated by this Agreement or
to the conveyance of the Acquired Assets to the Buyer.
11.4 Claims.
------
(a) Notice. Any party seeking indemnification hereunder (the
------
"Indemnified Party") shall promptly notify the other party or parties hereto
-----------------
from whom such Indemnified Party is entitled to indemnification hereunder (the
"Indemnifying Party", which term shall include all Indemnifying Parties if there
------------------
be more than one) of any action, suit, proceeding, demand or breach (a "Claim")
-----
with respect to which the Indemnified Party claims indemnification hereunder,
provided that failure of the Indemnified Party to give such notice shall not
relieve the Indemnifying Party of its obligations under this Section 11 except
to the extent, if at all, that such Indemnifying Party shall have been
prejudiced thereby.
(b) Third Party Claims. If such Claim relates to any action,
------------------
suit, proceeding or demand instituted against the Indemnified Party by a third
party (a "Third Party Claim"), the Indemnifying Party shall be entitled to
-----------------
participate in the defense of such Third Party Claim after
36
receipt of notice of such claim from the Indemnified Party. Within thirty (30)
days after receipt of notice of a particular matter from the Indemnified Party,
the Indemnifying Party may assume the defense of such Third Party Claim (in
which case the Indemnifying Party shall have the authority to negotiate,
compromise and settle such Third Party Claim) if and only if the following
conditions are satisfied:
(i) the Indemnifying Party shall have confirmed in
writing that it is obligated hereunder to indemnify the Indemnified
Party with respect to such Third Party Claim;
(ii) the Indemnified Party shall not have given the
Indemnifying Party written notice that it has determined, in the
exercise of its reasonable discretion, that matters of corporate or
management policy or a conflict of interest make separate
representation by the Indemnified Party's own counsel advisable; and
(iii) such Third Party Claim involves only money
damages and does not seek an injunction or other equitable relief.
The Indemnified Party shall retain the right to employ its own counsel and to
participate in the defense of any Third Party Claim, the defense of which has
been assumed by the Indemnifying Party pursuant hereto, but the Indemnified
Party shall bear and shall be solely responsible for its own costs and expenses
in connection with such participation.
11.5 Method and Manner of Paying Claims. With respect to liquidated
----------------------------------
claims, if within thirty days the Indemnifying Party has not contested such
claim in writing, the Indemnified Party will pay the full amount thereof within
ten days after the expiration of such period. Any amount owed by an Indemnifying
Party hereunder with respect to any Claim may be set-off by the Indemnified
Party against any amounts owed by the Indemnified Party to any Indemnifying
Party. The unpaid balance of a Claim shall bear interest at a rate per annum
equal to the rate announced by Fleet National Bank as its "Prime Rate" plus two
percent (2%) from the date notice thereof is given by the Indemnified Party to
the Indemnifying Party.
12. TERMINATION; ALTERNATIVE TRANSACTION.
(a) This Agreement (other than the provisions of this Section
12 and of Sections 14.1-14.8, 14.10, 14.11 and 14.13 hereof) may be terminated
at any time prior to the Closing:
(i) by mutual written consent of all parties to this
Agreement;
(ii) by either the Buyer on the one hand or the Company on
the other hand in writing to the other party, without liability to the
terminating party or parties on account of such termination (provided
the terminating party or parties is not otherwise in material default
or in material breach of this Agreement), if the Closing shall not have
occurred on or before March 29, 2002, other than as a consequence of
the intentional breach or the intentional default by the terminating
party or parties;
37
(iii) by the Buyer on or at any time prior to the Escrow
Closing Date by written notice to the Company in the event of (A) a
breach by the Sellers of their representations and warranties set
forth herein in any material respects or (B) a material breach by
Sellers of their covenants or agreements set forth herein, in each
case which (1) cannot or has not been cured prior to the earlier of
(x) 15 days after the giving of written notice of such breach to
Sellers and (y) one Business Day prior to the Expiration Date and (2)
has not been waived in writing by Buyer;
(iv) by the Company on or at any time prior to the Escrow
Closing Date by written notice to the Buyer in the event of (A) a
material breach by the Buyer of its representations and warranties set
forth herein in any material respect or (B) a material breach by the
Buyer of its covenants or agreements set forth herein, in each case
which (1) cannot or has not been cured prior to the earlier of (x) 15
days after the giving of written notice of such breach to the Buyer
and (y) one Business Day prior to the Expiration Date and (2) has not
been waived in writing by the Sellers, except in any case where any
such breach is not reasonably likely to affect adversely the ability
of the Buyer to consummate the transactions contemplated by this
Agreement;
(v) by the Company by written notice to the Buyer if (A) the
Company receives a bona fide offer from any third party (excluding any
Affiliate of the Company or any group of which any Affiliate of the
Company is a member and excluding any offer received in contravention
of any non-solicitation covenant set forth in this Agreement) with
respect to a merger, sale of substantial assets or other business
combination involving the Company which requires the Company to
terminate this Agreement, (B) the Company's Board of Directors
determines, in good faith and after consultation with an independent
financial advisor, and receipt of a legal opinion from Xxxxxxxx
Ingersoll Professional Corporation that the failure to terminate this
Agreement would more likely than not constitute a breach of the
fiduciary duty of the Board of Directors to the shareholders of the
Company, that such offer would yield a higher value to the Company or
its shareholders than the Merger and (C) each of Parent (as defined in
the Merger Agreement) and Buyer fails (whether individually or
collectively), within five (5) Business Days after each is notified of
such determination and of the terms and conditions of such offer, to
make an offer which is substantially equivalent to, or more favorable
than, such offer; or
(vi) by the Company by written notice to the Buyer if (A) a
bona fide tender/exchange offer is commenced by a third party
(excluding any Affiliate of the Company or any group of which any
Affiliate of the Company is a member and excluding any offer received
in contravention of any non-solicitation covenant set forth in this
Agreement) for all outstanding shares of the Company's Common Stock
which is conditioned upon termination of this Agreement, (B) the
Company's Board of Directors determines, in good faith and after
consultation with an independent financial advisor, and receipt of a
legal opinion from Xxxxxxxx Xxxxxxxxx Professional Corporation that
the failure to terminate this Agreement would more likely than not
constitute a breach of the fiduciary duty of the Board of Directors to
the shareholders of the Company, that such offer would yield a higher
value to the Company or its shareholders than the Merger and
38
(C) each of Parent (as defined in the Merger Agreement) and Buyer
fails (whether individually or collectively) within five (5) Business
Days after each is notified of such determination, to make an offer
which is substantially equivalent to, or more favorable than, such
tender/exchange offer.
(b) In the event of a termination of this Agreement pursuant
to Section 12(a)(iii) or 12(a)(iv), the non-breaching party shall have the right
to exercise all of its legal rights and remedies under law, including but not
limited to specific performance. The parties agree that in the event of a breach
of these provisions, specific performance would be an appropriate remedy.
(c) In the event of a termination of this Agreement pursuant
to Section 12(a)(v) or Section 12(a)(vi), the Buyer's sole remedy will be to
receive a sum equal to $3,500,000 as agreed as liquidated damages, it being
agreed that in such event Buyer's actual damages would be incapable of precise
ascertainment, and Buyer shall not be entitled to any other remedy in connection
with the termination of this Agreement (including, without limitation, specific
performance).
(d) In the event of a termination of this Agreement pursuant
to Section 12(a)(ii), Buyer and Sellers agree that no party shall have any
liability to any other party hereto and that, except as otherwise provided in
Section 14.1(a) below, each party hereto shall be responsible for the payment of
its own costs and expenses incurred in connection with this Agreement including
the expenses of accountants, attorneys, bankers, brokers or other advisors
employed by or retained by or on behalf of such party.
(e) Any payment required to be made by Sellers pursuant to
this Section 12 shall be made by such party within three Business Days after
receipt by it of notice from the other party setting forth, in reasonable
detail, (i) a description of the event(s) giving rise to the payment obligation;
(ii) the calculation of the payment obligation and (iii) the bank information
necessary to effect a wire transfer to the non-breaching party's account.
13. DEFINITIONS. As used herein the following terms not otherwise
defined have the following respective meanings:
"Affiliate": As applied to any Person, any Person controlling,
---------
controlled by or under common control with such Person.
"Business Day": Any day, other than a Saturday, Sunday or a day on
------------
which banks, located in the Commonwealth of Pennsylvania, shall be authorized
or required by law to close.
"Expiration Date": The date (as extended from time to time in
---------------
accordance with the terms of the Merger Agreement) on which the Offer (as
defined in the Merger Agreement) expires.
"Intellectual Property Rights": Patents, trademarks, trade names,
----------------------------
domain names, copyrights, trade secrets, technology, know-how, processes and all
other intellectual property rights.
39
"IRS": The United States Internal Revenue Service.
---
"Material Adverse Effect": The result of one or more events, changes or
-----------------------
effects which, individually or in the aggregate, would have a material adverse
effect on the business, operations, properties or assets, liabilities or
condition (financial or otherwise) of the Business (taken as a whole), except
for any event, change or effect resulting from general economic, financial or
market conditions in the United States.
"Merger": The merger of Ironbridge Acquisition Corp., a Pennsylvania
------
corporation, with and into the Company, on the terms and subject to the
conditions set forth in the Merger Agreement.
"Merger Agreement": That certain Merger Agreement of even date herewith
----------------
by and among Ironbridge Holding LLC, a Delaware limited liability company,
Ironbridge Acquisition Corp., a Pennsylvania corporation and a wholly owned
subsidiary of Ironbridge Holding LLC, and the Company (as the same is amended,
modified or supplemented from time to time in accordance with the terms
thereof).
"Permitted Liens": With respect to the Acquired Assets, any of the
---------------
following: (i) mechanics', carriers', workmen's, repairmen's or other like liens
arising or incurred in the ordinary course of business, (ii) liens for real
estate, ad valorem or other taxes, assessments and governmental charges which
are not yet due and payable or which are being contested in good faith, (iii)
liens arising pursuant to the terms of any operating leases, (iv) liens incurred
in the ordinary course of business in connection with deposit accounts or to
secure the performance of bids, tenders, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of like nature, (v) with
respect to assets constituting Owned Real Property or Leased Real Property, (a)
those easements, rights of way, servitudes, permits, restrictions, encumbrances,
other imperfections or irregularities of title and other matters of record
listed on Schedule 5.11 of the Disclosure Schedules, (b) zoning laws, codes and
-------------
ordinances of any governmental authority, and (c) any standard title policy
exceptions or exceptions listed on Schedule 5.11 of the Disclosure Schedules,
-------------
and (vi) any lien released on the Closing Date by release of any Purchase
Escrowed Item by the Escrow Agent.
"Person": A corporation, an association, a partnership, a limited
------
liability company, an organization, a business, an individual, a government or
political subdivision thereof or a governmental agency.
"Tax" or "Taxes": Any federal, state, local, foreign and other income,
--- -----
profits, franchise, capital, withholding, unemployment insurance, social
security, occupational, production, severance, gross receipts, value added,
sales, use, excise, real and personal property, ad valorem, occupancy, transfer,
employment, disability, workers' compensation or other similar tax, duty, fee,
assessment or other governmental charge (including all interest and penalties
thereon and additions thereto).
40
14. GENERAL.
14.1 Expenses.
--------
(a) Filing fees, Transfer and Sales Taxes. Sellers and Buyer
-------------------------------------
shall share equally the first $800,000 (the "Closing Expenses Cap") of the
--------------------
following fees, expenses and taxes (collectively, the "Closing Expenses"): (i)
any HSR filing fee; (ii) the premium for up to $10,000,000 of representation and
warranty insurance for the benefit of Buyer; (iii) all transfer and sales taxes
payable with respect to the sale and conveyance of the Acquired Assets to the
Buyer, including, without limitation, transfer and conveyance fees and taxes
related to the transfer of the Owned Real Property; and (iv) all costs
associated with the Owners Fee Policies of Title Insurance issued in the
aggregate insured amount of $7,258,300 by Lawyers Title Insurance Corporation
with respect to Owned Real property located in Wisconsin and on the insurance
amount of $8,117,000 issued by Commonwealth Land Title Insurance Company with
respect to Owned Real Property located in Florida. Buyer shall pay any and all
Closing Expenses in excess of the Closing Expenses Cap.
(b) General. Except as expressly set forth otherwise in this
-------
Agreement, all expenses of the preparation, execution and consummation of this
Agreement and of the transactions contemplated hereby, including without
limitation attorneys', accountants' and outside advisers' fees and
disbursements, shall be borne by the party incurring such expenses.
(c) Reimbursement of Certain Operating Expenses and Closing
-------------------------------------------------------
Expenses. On the Closing Date, Buyer shall pay to Sellers an amount (the
--------
"Reimbursement Amount") equal to all operating expenses of the Business paid by
--------------------
the Sellers other than from the Business Accounts for the period commencing
January 1, 2002, and ending on the Closing Date increased, by the amount, if
---------
any, of Buyer's share of the Closing Expenses advanced by Sellers and decreased,
---------
by the amount, if any, of the Sellers' share of the Closing Expenses advanced by
Buyer. The Reimbursement Amount shall be paid by deposit of same by the Buyer
into escrow on the Escrow Closing Date to be held in escrow pursuant to the
terms and conditions of the Escrow Agreement. Schedule 14.1(c) of the Disclosure
----------------
Schedules sets forth the Company's good faith estimate of the operating expenses
of the Business that the Sellers expect to pay through March 15, 2002.
Commencing on February 4, 2002, and continuing thereafter until the Closing
Date, Sellers shall provide written reports not less frequently than weekly of
the amounts paid by Sellers which Sellers intend to include in the Reimbursement
Amount. Nothing in the immediately preceding two sentences shall be deemed to
limit the amount of the Reimbursement Amount.
14.2 Notices. All notices, demands and other communications hereunder
-------
shall be in writing and delivered as follows:
41
If to the Sellers or either of them, to:
Pitt-Des Moines, Inc.
0000 Xxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: Wm. X. XxXxx
Telecopy: (000) 000-0000
with a copy sent contemporaneously to:
Xxxxxxxx Ingersoll Professional Corporation
One Oxford Centre, 20th Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxx
Telecopy: (000) 000-0000
If to the Sellers or either of them, from and after the Closing Date to:
Ironbridge Holding LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telecopy: (000) 000-0000
with a copy sent contemporaneously to:
Xxxxx Raysman Xxxxxxxxx Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
If to the Buyer, to:
Steel Bridges, LLC
0000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxxxxxxx 00000
Attention: President
with a copy sent contemporaneously to:
Kirtland Capital Partners
0000 XXX Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxx 00000
42
Attention: Xxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
Xxxxx & Xxxxxx LLP
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
Any such notice demand or other communication shall be effective when
(a) delivered to the appropriate address by hand or by nationally recognized
overnight courier service (costs pre-paid); (b) sent by facsimile or telecopy
with confirmation of transmission by the transmitting equipment; or (c) received
or rejected by the addressee, if sent by certified mail, return receipt
requested.
14.3 Entire Agreement. This Agreement contains the entire
----------------
understanding of the parties, supersedes all prior agreements and understandings
relating to the subject matter hereof, other than the confidentiality agreement
signed by Buyer or its Affiliate in connection with the transactions
contemplated by this Agreement, the terms of which shall survive the Closing.
This Agreement shall not be amended except by a written instrument hereafter
signed by all of the parties hereto.
14.4 Governing Law. The validity and construction of this Agreement
-------------
shall be governed by the internal laws (and not the choice-of-law rules) of
the Commonwealth of Pennsylvania.
14.5 Sections and Section Headings. The headings of sections and
-----------------------------
subsections are for reference only and shall not limit or control the meaning
thereof.
14.6 Assigns. This Agreement shall be binding upon and inure to the
-------
benefit of the parties hereto and their respective successors and permitted
assigns. Except in connection with any financing contemplated by this Agreement
or the Merger Agreement, neither this Agreement nor the obligations of any party
hereunder shall be assignable or transferable by such party without the prior
written consent of the other party hereto; provided, however, that nothing
-------- -------
contained in this Section 14.6 shall prevent the Buyer, without the consent of
the Sellers, from: (i) transferring or assigning this Agreement or its rights or
obligations hereunder to an Affiliate of the Buyer or (ii) assigning all or part
of its rights or obligations hereunder by way of collateral assignment to any
bank or financing institution providing financing for the acquisition
contemplated hereby, but no such transfer or assignment made pursuant to clauses
(i) or (ii) shall delay the consummation of the transactions contemplated by
this Agreement or relieve the Buyer of its obligations under this Agreement.
14.7 Severability. In the event that any covenant, condition, or other
------------
provision herein contained is held to be invalid, void, or illegal by any court
of competent jurisdiction, the same
43
shall be deemed to be severable from the remainder of this Agreement and shall
in no way affect, impair, or invalidate any other covenant, condition, or other
provision contained herein.
14.8 Further Assurances. The parties agree to take such reasonable
------------------
steps and execute such other and further documents as may be necessary or
appropriate to cause the terms and conditions contained herein to be carried
into effect.
14.9 Tax Treatment. The Buyer and the Sellers shall treat and report
-------------
the transactions contemplated by this Agreement, for purposes of any federal,
state or local tax, with respect to calculation of gain, loss and basis with
reference to the allocation of the Purchase Price made pursuant to Section 3.1
hereof. The parties hereto shall not take any actions or positions inconsistent
with the obligations set forth herein.
14.10 No Implied Rights or Remedies. Except as otherwise expressly
-----------------------------
provided herein, nothing herein expressed or implied is intended or shall be
construed to confer upon or to give any person, firm or corporation, other than
the Sellers and the Buyer and their respective shareholders, any rights or
remedies under or by reason of this Agreement.
14.11 Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14.12 Satisfaction of Conditions Precedent. Each Seller and the Buyer
------------------------------------
will use its commercially reasonable efforts to cause the satisfaction of the
conditions precedent contained in this Agreement; provided, however, that
-------- -------
nothing contained in this Section 14.12 shall obligate any party hereto to waive
any right or condition under this Agreement.
14.13 Public Statements or Releases. Each of the parties hereto agrees
-----------------------------
that prior to the consummation of the Closing no party to this Agreement will
make, issue or release any public announcement, statement or acknowledgment of
the existence of, or reveal the status of, this Agreement or the transactions
provided for herein, without first obtaining the consent of the other parties
hereto, which consent shall not be unreasonably withheld, conditioned or
delayed. Nothing contained in this Section 14.13 shall prevent any party from
making such disclosures as such party may consider necessary in order to obtain
financing for the transactions contemplated hereby or to satisfy such party's
legal or contractual obligations.
14.14 Business Records.
----------------
(a) The Buyer acknowledges that business records of the
Sellers relating to the operations of the Business prior to the Closing will be
conveyed to the Buyer as part of the Acquired Assets and that the Sellers may
from time to time require access to or copies of such records in connection with
tax matters and claims arising with respect to their operations prior to the
Closing or the winding up of their affairs. The Buyer agrees that upon
reasonable prior notice from the Company it will, during normal business hours,
provide the Sellers with access to or, at the Buyer's option and at Sellers'
expense, copies of such records for such purposes. The Sellers
44
agree to hold any confidential information so provided in confidence and to use
such information only for the purposes described above.
(b) The Buyer agrees that it will not within three (3) years
after the Closing Date destroy any material business records prepared prior to
the Closing without first notifying the Company and affording it the opportunity
to remove or copy them. For purposes of the preceding sentence, any notice from
the Buyer delivered in accordance with Section 14.2 shall be deemed to be
adequate notice if not responded to in writing by the Company within thirty (30)
days.
(c) After the Closing Date, Buyer and Sellers shall cooperate
with each other and with each other's agents, including accounting firms and
legal counsel, in connection with matters relating to Taxes of Buyer, Sellers
and their Affiliates including (i) the preparation and filing of any Tax
returns, (ii) determining the liability for and amount of any Taxes due
(including estimated Taxes) or the right to and amount of any refund of Taxes,
(iii) examinations of Tax returns, and (iv) any administrative or judicial
proceeding in respect of Taxes assessed or proposed to be assessed, it being
agreed that Buyer shall make all final decisions with respect to tax matters
attributable to Sellers' operation of the Business that are assumed by Buyer
pursuant to Section 2.1 of this Agreement. Buyer and Sellers and their
respective Affiliates shall make available to each other for inspection and
copying during normal business hours upon reasonable notice all Tax records in
their possession to the extent reasonably required by the other party in
connection with the preparation, review or audit of Tax returns and any related
proceedings. Buyer and Sellers shall also make available to each other, as
reasonably requested and on a mutually convenient basis, personnel (including
officers, directors, employees and agents of Buyer or Sellers or their
respective Affiliates) to provide such assistance as might be reasonably
required in connection with the matters set forth above.
(d) Any information provided to the other party under this
Section 14.14 shall be delivered without representation or warranty and shall be
kept confidential by the party receiving the information or documents, except as
may otherwise be necessary in connection with the filing of Tax returns or in
connection with any communications with a tax authority or any administrative or
judicial proceedings relating to Taxes or any Tax return.
(e) All reasonable out-of-pocket costs and expenses incurred
in connection with any of the foregoing actions described in this Section 14.14
shall be for the account of the party requesting such actions (subject to
providing reasonable documentation of such out-of-pocket costs and expenses).
The provisions of this Section 14.14 shall survive Closing for a period of one
year after the Closing Date.
14.15 Knowledge. Whenever the phrase "to the knowledge of the Sellers"
---------
or another similar qualification is used herein, the relevant knowledge shall
refer to the actual knowledge of any of the individuals listed on Schedule 14.15
--------------
of the Disclosure Schedules, after reasonable investigation.
45
The remainder of this page is intentionally left blank. The signature
page follows.
46
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties hereto have caused this Asset Purchase Agreement to be duly executed and
delivered as of the date first written above.
STEEL BRIDGES, LLC
By:
---------------------------------------------
Title:
PITT-DES MOINES, INC.
By:
---------------------------------------------
Title:
PDM BRIDGE CORP.
By:
---------------------------------------------
Title:
47
Annex A
EXECUTION COPY
ASSET SALE ESCROW AGREEMENT
This ASSET SALE ESCROW AGREEMENT, dated as of February 1, 2002 (this
"Agreement"), by and among PITT-DES MOINES, INC., a Pennsylvania corporation
(the "Company"), PDM BRIDGE CORP., a Delaware corporation (collectively with the
Company, the "Sellers"), STEEL BRIDGES, LLC, a Delaware limited liability
company ("Buyer"), XXXXXX FINANCIAL, INC., as Agent, as such term is defined
below ("Xxxxxx"), and COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH, as escrow agent (the "Escrow Agent").
W I T N E S S E T H:
WHEREAS, Buyer and the Sellers have, simultaneously with the execution
of this Agreement, entered into an Asset Purchase Agreement, dated as of even
date herewith (the "Asset Purchase Agreement"), whereby the Buyer has agreed to
purchase, and the Sellers have agreed to sell, the assets described therein;
WHEREAS, in order to finance its obligations under the Asset Purchase
Agreement, the Buyer expects to enter into a senior secured credit facility (the
"Xxxxxx Credit Facility") with a syndicate of financial institutions for which
Xxxxxx will act as a lender and as Agent (as such term is defined therein) for
its own benefit and the benefit of the lenders thereunder;
WHEREAS, it is a condition to the transactions contemplated by the
Asset Purchase Agreement that the Buyer and the Sellers shall have complied with
this Agreement; and
WHEREAS, Buyer and the Sellers desire to appoint the Escrow Agent as
the escrow agent hereunder, and the Escrow Agent is willing to act as the escrow
agent hereunder in accordance with the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
Section 1. Definitions. Unless otherwise defined herein, terms which are
defined in the Asset Purchase Agreement, as in effect on the date hereof, and
used herein are so used as so defined.
Section 2. Establishment of Escrow Account. On the Escrow Closing Date, the
Buyer shall deliver or cause to be delivered to the Escrow Agent cash in the
amount of the Purchase Price, together with any and all additional amounts owing
to the Sellers pursuant to Section 14.1(c) of the Asset Purchase Agreement (the
"Escrow Amount") and such cash shall be accepted by the Escrow Agent and placed
into a separate interest-bearing escrow account (the "Escrow Account"); provided
that, interest accruing thereon shall constitute part of the Escrow Amount. The
Escrow Amount shall be held and administered in accordance with the terms and
conditions of this Agreement. A Form W-9 (or substitute Form W-9) will be
provided to the Escrow Agent by the Company.
Section 3. Closing Certificates. (a) On the Escrow Closing Date, if the
Sellers shall have delivered to the Escrow Agent or its designee all of the
Purchase Escrowed Items (as defined below) required to be delivered by or on
behalf of them, then Buyer shall either (i) execute and deliver to the Escrow
Agent a certificate addressed to the Sellers ("Buyer's Satisfaction
Certificate") certifying that each of the conditions to the closing of the
transactions described in Section 8 of the Asset Purchase Agreement (including,
without limitation, conditions based upon (x) the accuracy as of any date of the
representations and warranties of any party thereto, (y) compliance by any party
thereto with its covenants or other obligations thereunder, and (z) the
deliveries to the Escrow Agent of the Purchase Escrowed Items required hereby or
thereby) has been satisfied or waived as of such Escrow Closing Date, or (ii)
identify in writing to the Buyer and the Escrow Agent any and all such
conditions to closing that have not been satisfied or waived as of such Escrow
Closing Date. The Buyer hereby acknowledges and agrees that, once the Buyer's
Satisfaction Certificate has been delivered by the Buyer to the Escrow Agent
pursuant to this Section 3(a), the Buyer's Satisfaction Certificate shall be
irrevocable in all respects and may not thereafter be withdrawn by the Buyer
except that, if the expiration date of the Offer shall not have occurred on the
first Business Day after any Escrow Closing Date and the Buyer or Xxxxxx
requests the return of the Purchase Escrowed Items as provided in Section
2
4.2 of the Asset Purchase Agreement,the Escrow Agent shall return the Buyer's
Satisfaction Certificate to Buyer and the Buyer's Satisfaction Certificate shall
be of no further force or effect.
(b) On the Escrow Closing Date, if the Buyer shall have delivered or caused
to be delivered to the Escrow Agent the Purchase Price along with all of the
Purchase Escrowed Items required to be delivered by or on behalf of Buyer, then
each of the Sellers shall either (i) execute and deliver to the Escrow Agent a
certificate addressed to the Buyer ("Sellers' Satisfaction Certificate")
certifying that, except for the conditions described in Section 9.6 (Merger) of
the Asset Purchase Agreement, each of the conditions to the closing of the
transactions described in Section 9 of the Asset Purchase Agreement (including,
without limitation, conditions based upon (x) the accuracy as of any date of the
representations and warranties of any party thereto, (y) compliance by any party
thereto with its covenants or other obligations thereunder, and (z) the
deliveries to the Escrow Agent of the Purchase Escrowed Items required hereby or
thereby) has been satisfied or waived as of such Escrow Closing Date, or (ii)
identify in writing to the Sellers and the Escrow Agent any and all such
conditions to closing that have not been satisfied or waived as of such Escrow
Closing Date. Each of the Sellers hereby acknowledges and agrees that, once the
Sellers' Satisfaction Certificate has been delivered by the Sellers to the
Escrow Agent pursuant to this Section 3(b), the Sellers' Satisfaction
Certificate shall be irrevocable in all respects and may not thereafter be
withdrawn by the Sellers except that, if the expiration date of the Offer shall
not have occurred on the first Business Day after any Escrow Closing Date and
the Buyer or Xxxxxx requests the return of the Purchase Escrowed Items as
provided in Section 4.2 of the Asset Purchase Agreement, the Escrow Agent shall
return the Sellers' Satisfaction Certificate to Sellers and the Sellers'
Satisfaction Certificate shall be of no further force or effect.
(c) Each of the Buyer and the Sellers hereby represents and warrants to the
other and to the Escrow Agent that (i) to its knowledge, none of the events
described in Sections 8.4 and 9.5 (No Litigation) of the Asset Purchase
Agreement has occurred, and (ii) the Asset Purchase Agreement has not been
amended, supplemented, terminated or otherwise modified. On each of the Escrow
Closing Date and the date of acceptance for payment of the tendered shares of
the Company's common stock (the "Closing Date") in accordance with a tender
offer (the "Offer") expected to be made by Ironbridge Acquisition Corp. as
contemplated by the Merger Agreement,
3
Buyer and the Sellers agree to deliver to the Escrow Agent certificates
reconfirming the representations and warranties of the preceding sentence or
identifying any exceptions to such representations and warranties.
(d) The Buyer and the Sellers hereby further confirm that listed on
Schedule I hereto is a list of all items required to be delivered by the Buyer
and/or the Sellers to the Escrow Agent under the Asset Purchase Agreement (the
"Purchase Escrowed Items").
(e) After the Purchase Escrowed Items have been delivered to the Escrow
Agent on the Escrow Closing Date as contemplated by this Agreement, the Buyer
and the Sellers will confirm in writing to the Escrow Agent (i) that all
Purchase Escrowed Items, including the Escrow Amount, have been so delivered to
the Escrow Agent and (ii) the amount of the Escrow Amount.
Section 4. Representations and Warranties. Each of the parties to this
Agreement hereby represents and warrants to each other party to this Agreement
as follows:
(a) Such party is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization and has the requisite
power and authority to carry on its business as it is now being conducted.
(b) Such party has full corporate or similar power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby. This
Agreement has been approved by all requisite corporate or similar approval and
no other corporate or other similar proceedings on the part of such party are
necessary to authorize the execution and delivery of this Agreement or the
consummation by such party of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by such party and, assuming the
due authorization, execution and delivery hereof by each of the other parties
hereto, constitutes a valid and legally binding agreement of such party
enforceable against such party in accordance with its terms, except that such
enforcement may be subject to (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting or relating to enforcement of
creditors' rights generally and (ii) general equitable principles.
4
(c) The execution and delivery of this Agreement by such party does not
violate, conflict with or result in a breach of any provision of, or constitute
a default (or an event which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination of, or accelerate the
performance required by, or result in a right of termination or acceleration
under, or result in the creation of any lien, security interest, charge or
encumbrance upon any of the properties or assets of such party or any of its
subsidiaries under any of the terms, conditions or provisions of (i) the
organizational documents of such party, (ii) any statute, law, ordinance, rule,
regulation, judgment, decree, order, injunction, writ, permit or license of any
court or governmental authority applicable to such party or any of its
subsidiaries or any of their respective properties or assets or (iii) any note,
bond, mortgage, indenture, deed of trust, license, franchise, permit,
concession, contract, lease or other instrument, obligation or agreement of any
kind to which such party or any of its subsidiaries is now a party or by which
such party or any of its subsidiaries or any of their respective properties or
assets may be bound or affected.
Section 5. Disbursements.
(a) Escrow Amount. Immediately following the filing by the Escrow Agent of
the Articles of Merger with respect to the merger of Ironbridge Acquisition
Corp. with and into the Company (the "Merger") with the Secretary of State of
the Commonwealth of Pennsylvania, the Escrow Agent shall disburse the Escrow
Amount to the Sellers, in each case by wire transfer of immediately available
funds to the following account:
Bank of New York, ABA No. 000-000-000
For the account of "Rabobank Nederland", New York Branch
Account Number 000-0000-000
For further credit to Ironbridge Acquisition Corp.
Account Number 20435
(b) Purchase Escrowed Items. Immediately following the filing by the Escrow
Agent of the Articles of Merger with respect to the Merger with the Secretary of
State of the Commonwealth of Pennsylvania, the Escrow Agent shall release each
Purchase Escrowed Item previously delivered to the Escrow Agent to the party
entitled to receive same in accordance with the instructions set forth on
Schedule I hereto.
5
(c) Return Event. If a Return Event shall have occurred, (i) the Purchase
Escrowed Items previously delivered to the Escrow Agent shall be promptly
delivered by the Escrow Agent to the party which had previously deposited same
with the Escrow Agent, and (ii) any portion of the Escrow Amount previously
deposited with the Escrow Agent shall be promptly disbursed by the Escrow Agent
to Xxxxxx for the account of Buyer by wire transfer in accordance with the wire
transfer instructions specified in Section 17 hereof, but this Agreement shall
continue in full force and effect until such time as the Asset Purchase
Agreement is terminated in accordance with the terms and conditions thereof. A
"Return Event" shall have occurred if:
(i) the expiration date of the Offer shall not have occurred on the
first Business Day after any Escrow Closing Date and Buyer or
Xxxxxx shall have requested the return of the Purchase Escrowed
Items;
(ii) Buyer, on the one hand, or Sellers, on the other hand, shall have
identified any exception to the certificate required to be
delivered by such party pursuant to Section 3(c) and any of the
parties hereto shall have delivered a written request to the
Escrow Agent requesting return of the Purchase Escrowed Items to
the party that deposited them; or
(iii) on the Escrow Closing Date, the Buyer shall fail to deliver the
Buyer's Satisfaction Certificate as provided in Section 3(a) of
this Agreement or the Sellers shall fail to deliver the Sellers'
Satisfaction Certificate as provided in Section 3(b) of this
Agreement.
(d) If the Asset Purchase Agreement has been terminated pursuant to Section
12(a) thereof at any time prior to the acceptance for payment by Ironbridge
Acquisition Corp. of any shares of common stock of the Company in connection
with the Merger or the Offer, the Purchase Escrowed Items shall be promptly
delivered by the Escrow Agent to the party which had previously deposited same
with the Escrow Agent and any portion of the Escrow Amount previously deposited
with the Escrow Agent shall be promptly disbursed to Xxxxxx for the account of
Buyer by wire transfer in accordance with the wire transfer instructions set
forth in Section 17 hereof, and this Agreement shall thereafter terminate.
(e) In the event of a dispute between any of the parties hereto, Escrow
Agent shall, in its discretion, be entitled to transfer to a court of competent
jurisdiction all amounts then held in the Escrow Account and, upon such transfer
and upon the commencement of appropriate
6
proceedings therein in the nature of interpleader, the Escrow Account shall be
deemed dissolved and this Agreement shall terminate.
Section 6. Termination of Escrow Account and Escrow Agreement. If the
deliveries contemplated by Section 5(a) and Section 5(b) of this Agreement have
been made, then within one Business Day after the Closing Date, unless this
Agreement shall have been previously terminated pursuant to Section 5(d) hereof,
Escrow Agent shall deliver to the Company or as it shall direct in writing any
and all amounts remaining in the Escrow Account and, upon such delivery, the
Escrow Account shall be deemed dissolved and this Agreement shall terminate.
Section 7. Rights Duties and Immunities of Escrow Agent. Acceptance by
Escrow Agent of its duties under this Agreement is subject to the following
terms and conditions, which all parties to this Agreement hereby agree shall
govern and control the rights, duties and immunities of Escrow Agent:
(a) The duties and obligations of Escrow Agent shall be determined solely
by the express provisions of this Agreement and Escrow Agent shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this Agreement.
(b) Escrow Agent shall not be responsible in any manner for the validity or
sufficiency of any property delivered hereunder, or for the value or
collectability of any note, check or other instrument so delivered, or for any
representations made or obligations assumed by any party other than Escrow
Agent. Nothing herein contained shall be deemed to obligate Escrow Agent to
deliver any cash, instruments, documents or any other property referred to
herein, unless the same shall have first been received by Escrow Agent pursuant
to this Agreement.
(c) Each of Buyer and the Sellers, jointly and severally, will indemnify
Escrow Agent for, and hold it harmless against any loss, liability or expense,
including but not limited to counsel fees, incurred without bad faith, gross
negligence, fraud or intentional misconduct on the part of Escrow Agent arising
out of or in conjunction with its acceptance of, or the performance of its
duties and obligations under this Agreement as well as the costs and expenses of
defending against any claim or liability arising out of or relating to this
Agreement. In any legal proceeding
7
pursuant to Section 7(h) of this Agreement, the court may determine the
responsibility, as between Buyer and the Sellers, for indemnification of
expenses incurred by the Escrow Agent in connection with such proceeding.
(d) Escrow Agent shall be fully protected in acting on and relying upon any
written notice, direction, request, waiver, consent, receipt or other paper or
documents which Escrow Agent in good faith believes to have been signed and
presented by the proper party or parties.
(e) Escrow Agent shall not be liable for any error of judgment, or for any
act done or step taken or omitted by it in good faith or for any mistake in act
or law, or for anything which it may do or refrain from doing in connection
herewith, except its own bad faith, gross negligence, fraud or intentional
misconduct.
(f) Escrow Agent may seek the advice of legal counsel who is independent of
each of the other parties to this Agreement in the event of any dispute or
question as to the construction of any of the provisions of this Agreement or
its duties hereunder, and it shall incur no liability and shall be fully
protected in respect of any action taken, omitted or suffered by it in good
faith in accordance with the opinion of such counsel.
(g) The Escrow Agent may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or through agents, attorneys,
custodians or nominees appointed with due care, and shall not be responsible for
any willful misconduct or gross negligence on the part of any agent, attorney,
custodian or nominee so appointed.
(h) The parties hereto agree that should any dispute arise with respect to
the payment, ownership or right of possession of the Escrow Account or any
Purchase Escrowed Items, Escrow Agent is authorized and directed to proceed in
accordance with Section 5(d) or retain in its possession, without liability to
anyone, except for its bad faith, willful misconduct or gross negligence, all of
the Escrow Account and the Purchase Escrowed Items until such dispute shall have
been settled either by mutual agreement by the parties concerned or by the final
order, decree or judgment of a court or other tribunal of competent jurisdiction
in the United States, and a notice executed by the parties to the dispute or
their authorized representatives shall have been
8
delivered to Escrow Agent setting forth the resolution of the dispute. Escrow
Agent shall be under no duty whatsoever to institute, defend or partake in such
proceedings.
(i) The agreements set forth in this Section 7 shall survive the
termination of this Agreement and the payment of all amounts hereunder.
Section 8. Resignation of Escrow Agent. Escrow Agent shall have the right
to resign upon 30 days written notice to the other parties hereto. In the event
of such resignation, with the consent of the parties hereto, which consent shall
not unreasonably be withheld, the parties hereto shall mutually agree to a
successor escrow agent hereunder by delivering to Escrow Agent a written notice
of such appointment. Upon receipt of such notice, Escrow Agent shall deliver to
the designated successor escrow agent all money, other property and documents
held hereunder and shall thereupon be released and discharged from any and all
further responsibilities whatsoever under this Agreement.
Section 9. Notices. All claims, notices and other communications hereunder
to be effective shall be in writing and shall be deemed to have been duly given
when delivered by hand, or 5 days after being deposited in the mail or sent by
registered or certified first class mail postage prepaid, or, in the case of
facsimile transmission, when received and telephonically confirmed, in each case
addressed to the parties at the addresses set forth below (or to such other
person or address as the parties shall have notified each other and Escrow Agent
in writing; provided that notices of a change of address shall be effective only
upon receipt thereof):
if to the Sellers:
Pitt-Des Moines, Inc.
Town Center One
0000 Xxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
9
with a copy sent contemporaneously to:
Xxxxxxxx Xxxxxxxxx Professional Corporation
One Oxford Centre
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx Xxxxx, Esq.
if to Buyer:
Steel Bridges, LLC
0000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxxxxxxx 00000
Attention: President
with a copy sent contemporaneously to:
Xxxxx & Xxxxxx LLP
1100 Huntington Building
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
if to Xxxxxx:
Xxxxxx Financial, Inc.,
as Agent
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Account Manager and Legal Services
Telecopier: (000) 000-0000
if to Escrow Agent:
Rabobank Nederland, New York Branch
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
10
Section 10. Binding Effect; Assignment. This Agreement shall inure to the
benefit of and be binding upon the parties hereto but neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned by any
of the parties hereto without the prior written consent of the other parties;
provided that, notwithstanding the foregoing, any party may assign all or part
of its rights or obligations under this Agreement by way of collateral
assignment to any bank or financing institution providing financing in
connection with any of the transactions contemplated by this Agreement or the
Asset Purchase Agreement.
Section 11. Amendments. This Agreement may only be amended, modified or
supplemented at any time or from time to time by a writing executed by each of
the parties to this Agreement.
Section 12. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York
applicable to contracts to be performed entirely within the State of New York,
without reference to or application of rules or principles of conflicts of law.
Section 13. Interpretation. The headings of the sections contained in this
Agreement are solely for convenience or reference and shall not affect the
meaning or interpretation of this Agreement.
Section 14. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 15. Consent to Jurisdiction. Each of the parties hereto hereby
irrevocably agrees that any action, suit or proceedings against any of them by
any of the other aforementioned parties with respect to this Agreement shall be
brought before the exclusive jurisdiction of the federal or state courts located
in the County of New York, State of New York, unless all the parties hereto
agree in writing to any other jurisdiction. Each of the parties hereto hereby
submits to such exclusive jurisdiction.
11
Section 16. Severability. If any provisions of this Agreement shall be
declared by any court of competent jurisdiction illegal, void or unenforceable,
the other provisions shall not be affected, but shall remain in full force and
effect.
Section 17. Concerning Xxxxxx. The parties hereto acknowledge and agree
that the execution and delivery of this Agreement by Xxxxxx shall not be
construed as a commitment or obligation by Xxxxxx or any other financial
institution to enter into the Xxxxxx Credit Facility or to make the loans
contemplated thereby. At any time prior to the Escrow Closing Date, Xxxxxx shall
be permitted to deliver a written notice to Escrow Agent of Xxxxxx'x election to
cease to be a party to this Agreement. The parties hereto agree that from and
following the date of receipt by Escrow Agent of any written notice described in
the preceding sentence, Xxxxxx shall cease for all purposes to be a party to
this Agreement, and any provisions hereof pertaining to Xxxxxx shall be deemed
to be of no legal effect. Any wire transfers to be made to Xxxxxx in accordance
with the provisions of this Agreement shall be sent in accordance with the
following instructions:
ABA No. 0000-0000-0
Account Number 55-00540
Bank One, N.A.
0 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Reference: PDM Bridge
or in accordance with such other written instructions as may be delivered from
time to time by Xxxxxx to Escrow Agent.
[Signature Page Follows]
12
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
SELLERS:
PITT-DES MOINES, INC.
By:
-------------------------------
Name:
Title:
PDM BRIDGE CORP.
By:
-------------------------------
Name:
Title:
BUYER:
STEEL BRIDGES, LLC
By:
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chairman and President
XXXXXX:
XXXXXX FINANCIAL, INC.,
as Agent
By:
-------------------------------
Name:
Title:
13
ESCROW AGENT:
COOPERATIEVE CENTRALE RAFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
14
Schedule I
---------- ------------------------------------------------ ---------------------- --------------------------------------
No. Purchase Escrowed Item Deposited by: Upon Consummation to be released to:
========== ================================================ ====================== ======================================
1. Purchase Price Buyer Surviving Corporation of the Merger
---------- ------------------------------------------------ ---------------------- --------------------------------------
2. Reimbursement Amount Buyer Surviving Corporation of the Merger
---------- ------------------------------------------------ ---------------------- --------------------------------------
3. Asset Purchase Agreement Buyer/Company Buyer/Company
---------- ------------------------------------------------ ---------------------- --------------------------------------
4. Xxxx of Sale Company Buyer
---------- ------------------------------------------------ ---------------------- --------------------------------------
5. Assignment and Assumption Agreement Buyer/Company Buyer/Company
---------- ------------------------------------------------ ---------------------- --------------------------------------
6. Powers of Attorney to Transfer Motor Vehicle Company Buyer
Titles
---------- ------------------------------------------------ ---------------------- --------------------------------------
7. Deed for Company's Real Property in Eau Company Buyer
Claire, WI
---------- ------------------------------------------------ ---------------------- --------------------------------------
8. Deed for Company's Real Property in Wausau, WI Company Buyer
---------- ------------------------------------------------ ---------------------- --------------------------------------
9. Deed for Company's Real Property in Palatka, FL Company Buyer
---------- ------------------------------------------------ ---------------------- --------------------------------------
10. Gap Indemnity for the Company's Real Property Company Buyer
in Eau Claire, WI
---------- ------------------------------------------------ ---------------------- --------------------------------------
11. Gap Indemnity for the Company's Real Property Company Buyer
in Wausau, WI
---------- ------------------------------------------------ ---------------------- --------------------------------------
12. Gap Indemnity for the Company's Real Property Company Buyer
in Palatka, FL
---------- ------------------------------------------------ ---------------------- --------------------------------------
13. Certificate of Title for the Company's Real Company Buyer
Property in Eau Claire, WI
---------- ------------------------------------------------ ---------------------- --------------------------------------
14. Certificate of Title for the Company's Real Company Buyer
Property in Wausau, WI
---------- ------------------------------------------------ ---------------------- --------------------------------------
15. Certificate of Title for the Company's Real Company Buyer
Property in Palatka, FL
---------- ------------------------------------------------ ---------------------- --------------------------------------
16. Trademark Assignment Buyer/Company Buyer/Company
---------- ------------------------------------------------ ---------------------- --------------------------------------
17. Company's Certificate of the Secretary Company Buyer
---------- ------------------------------------------------ ---------------------- --------------------------------------
---------- ------------------------------------------------ ---------------------- --------------------------------------
No. Purchase Escrowed Item Deposited by: Upon Consummation to be released to:
========== ================================================ ====================== ======================================
---------- ------------------------------------------------ ---------------------- --------------------------------------
18. PDM Bridge Corp.'s Certificate of the Secretary Company Buyer
---------- ------------------------------------------------ ---------------------- --------------------------------------
19. Buyer's Certificate of the Secretary Buyer Company
---------- ------------------------------------------------ ---------------------- --------------------------------------
20. Legal Opinion of Xxxxxxxx Xxxxxxxxx Company Buyer
Professional Corporation, counsel to the
Sellers
---------- ------------------------------------------------ ---------------------- --------------------------------------
21. Legal Opinion of counsel to the Buyer Buyer Company
---------- ------------------------------------------------ ---------------------- --------------------------------------
22. Sellers' Certificate Company Buyer
---------- ------------------------------------------------ ---------------------- --------------------------------------
23. Buyer's Certificate Buyer Company
---------- ------------------------------------------------ ---------------------- --------------------------------------
24. Bringdown Certificate Company Buyer
---------- ------------------------------------------------ ---------------------- --------------------------------------
25. Assignment of Membership Rights (re Chippewa Buyer/Company Buyer/Company
Valley Track LLC)
---------- ------------------------------------------------ ---------------------- --------------------------------------
26. Written Consent, effective as of the Effective Company Buyer/Company
Time of the Merger, of the Sole Shareholder of
the Company authorizing the transactions
contemplated by the Asset Purchase Agreement
---------- ------------------------------------------------ ---------------------- --------------------------------------
Exhibit A
STATE BAR OF WISCONSIN FORM 6 - 2000
SPECIAL WARRANTY DEED
Document Number
-------------------------------- --------------------------------------------
This Deed, made between Pitt-Des Moines, Inc., a Pennsylvania corporation
("Grantor"), and Steel Bridges LLC, a Delaware limited liability company
("Grantee").
Grantor, for a valuable consideration, conveys to Grantee the following
described real estate in Chippewa County, State of Wisconsin (the "Property"):
SEE ATTACHED EXHIBIT "A" for Property Description
-----------
Grantor warrants that the title to the Property is good, indefeasible in
fee simple and free and clear of encumbrances, arising by, through or under Recording Area
Grantor, except and subject to any and all municipal, use and zoning ordinances, ------------------------------------------------
rules and regulations, all taxes, assessments and governmental charges levied
but not yet due and payable, gas, oil, mineral and mining rights, rights of way Name and Return Address
and easements, covenants, conditions, reservations and restrictions heretofore Xxxxxxx X. Xxxxx, Esquire
granted, excepted, or reserved or recited in prior instruments of record (but Xxxxx & Xxxxxx, LLP
without intending to re-impose same) and to easements for sewers and utilities 000 Xxxxxx Xxxxxx, Xxxxx 0000
as the same now or may be hereafter installed and to all matters of record and Xxxxxxxxx, XX 00000
including, but not limited to the Permitted Exceptions set forth on Exhibit "B"
attached hereto and incorporated herein. ------------------------------------------------
22809-3341-03750000; 22809-3341-00020000;
22809-3342-03000000 and 22809-3342-07000000
Parcel Identification Number (PIN)
This is not homestead property.
Date ________ this day of __________, 2002.
GRANTOR:
Pitt-Des Moines, Inc., a Pennsylvania corporation
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
AUTHENTICATION ACKNOWLEDGMENT
State of )
-----------------------
Signature(s) _____authenticated this ___ day of January, 2002. )ss.
County of )
----------------------
* Personally came before me this
TITLE: MEMBER STATE BAR OF WISCONSIN _____ day of _______, 2002, the above-named
(If not, ___ authorized by (SS) 706.06, Wis. Stats.) ______________ known to me to be the
________________________ of Pitt-Des Moines,
THIS INSTRUMENT WAS DRAFTED BY: Inc., a Pennsylvania corporation, who
Xxxxxx X. Xxxxxx, Esquire executed on behalf of such corporation
Xxxxxxxx Ingersoll Professional Corporation the foregoing instrument and acknowledged
Xxx Xxxxxx Xxxxxx, 00xx Xxxxx the same.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000 Notary Public, State ________________________
My Commission Expires: _______________________
(Signatures may be authenticated or acknowledged. Both are
not necessary).
-------------------------------------------------------------------------------
*Names of persons signing in any capacity must be typed or printed below their
signature
SPECIAL WARRANTY DEED STATE BAR OF WISCONSIN FORM No. 6 - 2000
EXHIBIT "A"
PROPERTY DESCRIPTION
A PARCEL OF LAND LOCATED IN THE SOUTHEAST 1/4 OF SECTION 33, TOWNSHIP 28 NORTH,
RANGE 9 WEST, CITY OF EAU CLAIRE, CHIPPEWA COUNTY, WISCONSIN, BEING FURTHER
DESCRIBED AS FOLLOWS:
COMMENCING AT THE EAST 1/4 CORNER OF SAID SECTION 33; THENCE SOUTH 01(degree)
58' 08" EAST 1124.41 FEET; THENCE NORTH 89(degree) 53' 20" WEST 63.93 FEET TO
THE WEST LINE OF WHITE AVENUE AND THE POINT OF BEGINNING; THENCE CONTINUING
NORTH 89(degree) 53' 20" WEST 2236.14 FEET; THENCE NORTH 01(degree) 32' 23" WEST
115.95 FEET; THENCE NORTH 89(degree) 45' 09" WEST 27.72 FEET; THENCE NORTH
01(degree) 40' 21" WEST 195.98 FEET; THENCE NORTH 89(degree) 41' 50" WEST 264.86
FEET TO THE EAST LINE OF STARR AVENUE; THENCE NORTH 01(degree) 31' 00" WEST
ALONG SAID EAST LINE 607.29 FEET; THENCE ALONG THE ARC OF A 160.00 FOOT RADIUS
CURVE CONCAVE SOUTHEASTERLY, WHOSE CHORD BEARS NORTH 44(degree) 18' 00" EAST
229.48 FEET TO THE SOUTH LINE OF XXXXX STREET; THENCE SOUTH 89(degree) 53' 00"
EAST ALONG SAID LINE 2398.55 FEET TO THE WEST LINE OF WHITE AVENUE; THENCE SOUTH
00(degree) 16' 30" WEST ALONG SAID WEST LINE 1083.67 FEET TO THE POINT OF
BEGINNING. EXCEPTING ANY PORTIONS THEREOF USED FOR ROADWAY PURPOSES.
EXHIBIT "B"
PERMITTED EXCEPTIONS
1. Liens or deferred charges not shown on the tax roll for installations
and connections of water and sewer laterals, mains and
service pipes.
2. Rights or claims of parties in possession not shown by the public
records.
3. Easements or servitudes apparent from an inspection of the Property and
any variation in location or dimensions, conflict with lines of
adjoining property, encroachments, projections or other matters which
might be disclosed by an accurate survey of the Property.
4. Easements or claims of easements not shown by the public records.
5. Any lien, or right to a lien, for services, labor, or material
heretofore or hereafter furnished imposed by law and not shown by the
public records.
6. Taxes and assessments for the year 2002 and subsequent years.
7. Special taxes or assessments, if any, not yet due and payable.
8. Rights of the public in that portion of the Property which may be laid
out or used for roadway purposes.
9. Deed of Easement recorded on November 22, 1972, in Reel/Volume 383,
Image/Page 525, as Document No. 359474. (Public Utility Easement)
10. Covenants, conditions, reservations, restrictions and/or easements
contained in various Deeds the last being recorded on November 13, 1957
in Reel/Volume 219, Image/Page 610, as Document No. 287638.
11. Covenants, conditions, reservations, restrictions and/or easements
contained in instrument recorded on June 14, 1965 in Reel/Volume 294,
Image/Page 149, as Document No. 320718.
12. Covenants, conditions, reservations, restrictions and/or easements
contained in various Deeds the last being recorded on October 3, 1977,
in Reel/Volume 459, Image/Page 120, as Document No. 393305.
13. Easement contained in Quit Claim Deed recorded on December 28, 1973,
in Reel/Volume 399, Image/Page 411, as Document No.366445.
14. Covenants, conditions and easements contained in instrument recorded
on May 6, 1966, in Reel/Volume 304, Image/Page 98, as Document
No. 324818.
15. Deed of Easement recorded on July 24, 1975, in Reel/Volume 420,
Image/Page 299, as Document No. 376183.
16. Covenants, conditions, reservations, restrictions and/or easements
contained in Declaration of Restriction recorded on August 19, 1993
in Reel/Volume 754, Image/Page 621, as Document No. 520912.
17. Possible outstanding rights of Eau Claire Industrial Development
Corporation, if any.
18. Rights of PDM Bridge, if any.
19. Easement granted to Northern States Power Company by instrument
recorded in Volume 34 Miscellaneous, Page 355, as Document No. 245211.
20. Easement granted to Northern States Power Company by instrument
recorded on June 12, 1967, in Reel/Volume 316, Image/Page 341, as
Document No. 329988.
21. All rights of any Railroad to any tracks, ties, crossings, switches or
signals, if any located on the Property or accessing the Property and
other properties constituting railroad or in and to the use thereof.
Exhibit X-0
XXXXX XXX XX XXXXXXXXX XXXX 0 - 0000
SPECIAL WARRANTY DEED
Document Number
-----------------------------------------------------------------------------
This Deed, made between Pitt-Des Moines, Inc. a Pennsylvania corporation,
as to Parcel 1 and Pitt-Des Moines, Inc., a Pennsylvania corporation, as
successor by merger of Xxxxxxx Mfg. Corp. as to Parcels 2 and 3, a
Wisconsin corporation ("Grantor"), and Steel Bridges LLC, a Delaware
limited liability company ("Grantee").
Grantor, for a valuable consideration, conveys to Grantee the following
described real estate in Marathon County, State of Wisconsin (the "Property"):
SEE ATTACHED EXHIBIT "A" for Property Description
Grantor warrants that the title to the Property is good, indefeasible in
fee simple and free and clear of encumbrances, arising by, through or under
Grantor, except and subject to any and all municipal, use and zoning ordinances,
rules and regulations, all taxes, assessments and governmental charges levied
but not yet due and payable, gas, oil, mineral and mining rights, rights of way
and easements, covenants, conditions, reservations and restrictions heretofore
granted, excepted, or reserved or recited in prior instruments of record (but
without intending to re-impose same) and to easements for sewers and utilities
as the same now or may be hereafter installed and to all matters of record and
the Permitted Exceptions set forth on Exhibit "B" attached hereto and Recording Area
incorporated herein.
-----------------------------------------------
Name and Return Address
Xxxxxxx X. Xxxxx, Esquire
Xxxxx & Xxxxxx, LLP
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
-----------------------------------------------
37.076.4.2907.332.0990(as to Parcel 1);
37.076.4.2907.331.0998 (as to Parcels 2 and 3)
Parcel Identification Number (PIN)
This is not homestead property.
Date this ________ day of _______________, 2002.
GRANTOR:
Pitt Des Moines, Inc. a Pennsylvania corporation
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
AUTHENTICATION ACKNOWLEDGMENT
STATE OF_______________________)
Signature(s) _____authenticated this ___ day )ss.
of January, 2002.
County of______________________)
* Personally came before me this _____ day of
TITLE: MEMBER STATE BAR OF WISCONSIN _______, 2002, the above-named _______________
(If not, ___ authorized by (ss) 706.06, Wis. Stats.) known to me to be the ________________________
of Pitt-Des Moines, Inc., a Pennsylvania
THIS INSTRUMENT WAS DRAFTED BY: corporation, who executed on behalf of such
Xxxxxx X. Xxxxxx, Esquire corporation the foregoing instrument and
Xxxxxxxx Ingersoll Professional Corporation acknowledged the same.
Xxx Xxxxxx Xxxxxx, 00xx Xxxxx
000 Xxxxx Xxxxxx ___________________________________________
Xxxxxxxxxx, XX 00000-0000 Notary Public, State of ______________
My Commission Expires: ______________
(Signatures may be authenticated or acknowledged. Both are not necessary.)
------------------------------------------------------------------------------------------------------------------------------------
*Names of persons signing in any capacity must be typed or printed below their signature
SPECIAL WARRANTY DEED STATE BAR OF WISCONSIN FORM No. 6 - 2000
EXHIBIT "A"
PROPERTY DESCRIPTION
PARCEL 1:
THE SOUTHWEST 1/4 OF THE NORTHWEST 1/4 OF XXXXXXX 00, XXXXXXXX 00 XXXXX, XXXXX 0
XXXX, XX THE TOWN OF STETTIN, MARATHON COUNTY, WISCONSIN; EXCEPT ALL RAILROAD
RIGHT OF WAY; EXCEPT THE WEST 105 FEET THEREOF; EXCEPT ANY PART THEREOF LYING
NORTH OF HIGHWAY 29; EXCEPT THAT PART THEREOF DESCRIBED AS BEGINNING AT THE
XXXXXXXXX XXXXXX XX XXXX XX 0/0 XX XX 1/4, THENCE NORTH 587.57 FEET, THENCE
WESTERLY 961.91 FEET, THENCE SOUTHEASTERLY 1088.15 FEET, THENCE EASTERLY 69.9
FEET TO THE POINT OF BEGINNING.
PARCEL 2 :
PARCELS 1 AND 2, OF CERTIFIED SURVEY MAP RECORDED JUNE 25, 1976, IN VOLUME 4 OF
CERTIFIED SURVEY MAPS OF MARATHON COUNTY, WISCONSIN, PAGE 227, AS DOCUMENT
NUMBER 697787, BEING A PART OF THE SOUTHWEST 1/4 OF THE NORTHEAST 1/4, AND THE
SOUTHEAST 1/4 OF THE NORTHWEST 1/4 OF SECTION 33, TOWNSHIP 29 NORTH, RANGE 7
EAST, TOWN OF STETTIN, MARATHON COUNTY, WISCONSIN.
PARCEL 3:
THAT PART OF THE SOUTHWEST 1/4 OF THE NORTHWEST 1/4 OF XXXXXXX 00, XXXXXXXX 00
XXXXX, XXXXX 0 XXXX, XX THE TOWN OF STETTIN, MARATHON COUNTY, WISCONSIN,
DESCRIBED AS FOLLOWS:
COMMENCING AT THE CENTER OF SAID SECTION 33; RUNNING THENCE NORTH ALONG THE EAST
LINE OF SAID NW 1/4, 122.22 FEET TO THE NORTHERLY RIGHT OF WAY LINE OF THE
CHICAGO AND NORTHWESTERN TRANSPORTATION CO., THENCE SOUTH 85(degree)46' WEST, ON
SAID NORTHERLY RIGHT XX XXX XXXX, 0000.00 FEET, TO THE XXXX XXXX XX XXXX XX 0/0
XX XX 1/4 AND THE POINT OF BEGINNING; THENCE NORTH 0(degree)36'30" WEST 587.57
FEET TO THE SOUTHERLY RIGHT LINE OF NEW S.T.H. "29", THENCE NORTH 88(degree)43'
WEST ON SAID SOUTHERLY RIGHT XX XXX XXXX, 000.00 FEET, TO THE NORTHEASTERLY LINE
OF AN EASEMENT TO WISCONSIN PUBLIC SERVICE CO.; THENCE SOUTH 55(degree)38' EAST,
ON SAID NORTHEASTERLY EASEMENT LINE, 1088.15 FEET TO THE NORTHERLY RIGHT OF WAY
LINE OF THE CHICAGO AND NORTHWESTERN TRANSPORTATION CO.; THENCE NORTH
85(degree)46' EAST, ON SAID NORTHERLY RIGHT OF WAY LINE, 69.9 FEET TO THE POINT
OF BEGINNING; EXCEPTING ANY PART THEREOF USED FOR HIGHWAY PURPOSES.
EXHIBIT "B"
PERMITTED ENCUMBRANCES
1. Liens or deferred charges not shown on the tax roll for installations
and connections of water and sewer laterals, mains and service pipes.
2. Rights or claims of parties in possession not shown by the public
records.
3. Easements or servitudes apparent from an inspection of the Property and
any variation in location or dimensions, conflict with lines of
adjoining property, encroachments, projections or other matters which
might be disclosed by an accurate survey of the Property.
4. Easements or claims of easements not shown by the public records.
5. Any lien, or right to a lien, for services, labor, or materials
heretofore or hereafter furnished imposed by law and not shown by the
public records.
6. Taxes for the year 2002 and any subsequent years.
7. Special taxes or assessments, if any, not yet due and payable.
8. Utility Easement granted to Wisconsin Valley Electric Co. recorded on
November 10, 1931, in Reel/Volume 252, Image/Page 101, as Document
No. 2948142. (Affects Parcels 1 and 3)
9. Transmission Line Easement granted to Wisconsin Public Service
Corporation recorded on November 8, 1950, in Reel/Volume 366,
Image/Page 337, as Document No. 432474. (Affects Parcel 2)
10. Transmission Line Easement granted to Wisconsin Public Service
Corporation recorded on December 4, 1956, in Reel/Volume 422,
Image/Page 226, as Document No. 485193. (Affects Parcels 1 and 3)
11. Transmission Line Easement granted to Wisconsin Public Service
Corporation recorded on January 18, 1968, in Reel/Volume 31,
Image/Page 545, as Document No. 588019. (Affects Parcels 1 and 3)
12. Transmission Line Easement granted to Wisconsin Public Service
Corporation recorded on May 3, 1968, in Reel/Volume 38,
Image/Page 196, as Document No. 590877. (Affects Parcels 1 and 3)
13. Transmission Line Easement granted to Wisconsin Public Service
Corporation recorded in Reel/Volume 44, Image/Page 39, as
Document No. 593528. (Affects Parcel 2)
14. Right of Way contained in instrument recorded on October 3, 1968,
in Reel/Volume 40, Image/Page 99, as Document No. 596270.
(Affects Parcel 2)
15. Right of Way contained in instrument recorded on January 8, 1969, in
Reel/Volume 56, Image/Page 132, as Document No. 599001.
(Affects Parcel 2)
16. Right of Way contained in instrument recorded on March 17, 1969, in
Reel/Volume 59, Image/Page 425, as Document No. 600707.
(Affects Parcel 2)
17. Right of Way contained in instrument recorded on March 17, 1969, in
Reel/Volume 59, Image/Page 439, as Document No. 600715.
(Affects Parcel 2)
18. Right of Way contained in instrument recorded on March 17, 1969, in
Reel/Volume 59, Image/Page 441, as Document No. 600716.
(Affects Parcel 2)
19. Right of Way contained in instrument recorded on March 25, 1969, in
Reel/Volume 60, Image/Page 229, as Document No. 601019.
(Affects Parcel 2)
20. Transmission Line Easement granted to Wisconsin Public Service
Corporation recorded on January 14, 1971, in Reel/Volume 105,
Image/Page 535, as Document No. 622250. (Affects Parcels 1 and 3)
21. Transmission Line Easement granted to Wisconsin Public Service
Corporation recorded on February 18, 1971, in Reel/Volume 107,
Image/Page 448, as Document No. 623119. (Affects Parcel 2)
22. Storm Sewer Easement recorded on May 12, 1983, in Reel/Volume 362,
Image/Page 1135, as Document No. 802663. (Affects
Parcels 1 and 3)
23. Covenants, conditions, reservations, restrictions and/or easements
contained in instrument recorded on March 12, 1992 in
Reel/Volume 582, Image/Page 1059, as Document No. 962329.
(Affects Parcels 2 and 3)
24. Easement Assignment from Wisconsin Public Service Corporation to
American Transmission Company LLC recorded on January 2, 2001 as
Document No. 1222944. (Affects Parcel 2)
25. Title to any equipment, fixtures, appliances, tanks, machinery or
installations, except such as is finally determined to be part of the
Property, determination of which shall not be part of the obligation of
the company.
26. Rights of tenants under unrecorded leases.
27. Rights of the railroad company servicing the railroad siding, if any,
located on Property in and to the ties, rails and other properties
constituting said railroad siding or in and to the use thereof.
28. Rights of the State of Wisconsin, Division of Highways, pursuant to
that Deed dated April 16, 1969 and recorded on April 18, 1969, in
Reel/Volume 62, Image/Page 00 xxxxxxx, "Xx rights of access shall
accrue between the right of way of the highway, currently designated as
Xxxxxxx 00, and all of the abutting remaining property of the owner."
29. All matters relating to Parcel 1 and Parcel 2 as set forth in the
survey map recorded June 25, 1976 in Volume 4 of certified survey maps
of Marathon County, Wisconsin as Document No. 697787, Page 227.
30. Any portions of Parcel 3 used for highway purposes.
31. Limitation of access to Highway 29 as to Parcel 1. NOTE: No License
or easement to cross the railroad right-of-way abutting Parcel 1
was found.
32. All rights of any Railroad to any tracks, ties, crossings, switches or
signals, if any located on the Property or accessing the Property and
other properties constituting railroad or in and to the use thereof.
Exhibit B
---------
This instrument prepared by:
Xxxxxx X. Xxxxxx, Esquire
Xxxxxxxx Ingersoll Professional Corporation
One Oxford Centre, 20th Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Mail to Address: Xxxxxxx X. Xxxxx, Esquire
Xxxxx & Xxxxxx, LLP
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Property appraisers parcel identification (Folio) number(s):
37-09-26-0000-0012-0010; 37-09-26-0000-0010-0030; 37-09-26-0000-0010-0050 AND
37-09-26-0000-00010-0000
Grantee Federal EIN #: ____________________
____________________Space above this line for processing data _________________
THIS SPECIAL WARRANTY DEED, made this ___ day of ___________, 2002,
between PDM Bridge Corp., a Delaware corporation, whose address is
________________ _____________________________ ("Grantor"), and Steel Bridges
LLC, a Delaware limited liability company, whose address is
____________________________________________ ("Grantee").
WITNESSETH, that, the said Grantor, for and in consideration of the sum
of Ten and 00/100 Dollars ($10.00), lawful money of the United States of
America, in hand paid by the said Grantee, at or before the ensealing and
delivery of these presents, the receipt whereof is hereby acknowledged, granted,
bargained and sold, and by these presents does grant, bargain and sell unto the
said Grantee, and its successors and assigns forever, the following tracts of
land, situate, lying and being in the County of Xxxxxx, State of Florida (the
"Property"), and being more particularly described as follows:
SEE EXHIBIT "A" FOR PROPERTY DESCRIPTION
TOGETHER with all and singular the tenements, hereditaments and
appurtenances thereunto.
UNDER AND SUBJECT to any and all municipal, use and zoning ordinances,
rules and regulations, all taxes, assessments and governmental charges levied
but not yet due and payable, gas, oil, mineral and mining rights, rights of way
and easements, navigable rights or waterways, covenants, conditions,
reservations and restrictions heretofore granted, excepted, or reserved or
recited in prior instruments of record (but without intending to re-impose same)
and to easements for sewers and utilities as the same now or may be hereafter
installed and to all matters of record, including, but not limited to the
Permitted Exceptions set forth on Exhibit "B" attached hereto and incorporated
herein.
TO HAVE AND TO HOLD the above granted, bargained and described Property
with the appurtenances, unto the said Grantee, it successors and assigns, to its
own proper use, benefit and behoof forever.
SAID GRANTOR does hereby fully warrant title to said land and will
defend the same against the lawful claims of all persons whomsoever, claiming
by, through or under the Grantor herein.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the said Grantor has hereunto set its hand and seal
on the day and year first above written.
Signed, sealed and delivered in the presence of:
PDM BRIDGE CORP., a Delaware corporation
By:
---------------------------- --------------------------------------
Attest Signature Name:
------------------------------------
Title:
---------------------------- -----------------------------------
Print Name Address:
----------------------------
Title
----------------------------
Attest Signature
----------------------------
Print Name
----------------------------
Title
ACKNOWLEDGEMENT
---------------
State of _________________________
County of ________________________
The foregoing instrument was acknowledged before me this ___ day of
__________, 2002 by ______________________, ________________________ of PDM
Bridge Corp., a Delaware Corporation and on behalf of the corporation. He is
personally known to me or has produced ______________________ as identification.
(SEAL)
--------------------------
Notary Public
My commission expires:
EXHIBIT "A"
PROPERTY DESCRIPTION
PARCEL 1:
---------
TOWNSHIP 9 SOUTH - RANGE 26 EAST
Section 37:
A tract of land situated in the X.X. Xxxxxxxx Xxxxx, Xxxxxxx 00, Xxxxxxxx 0
Xxxxx, Xxxxx 26 East, being a part of lands described in O.R. Book 404, page
1014 of the public records of Xxxxxx County, Florida, and being more
particularly described as follows:
Commencing at a concrete monument on the Easterly right-of-way of the Seaboard
Coast Line Railroad at the Northwesterly corner of lands described in O.R. Book
222, page 65 of said public records, and run thence N 88(degree)50'30" E, along
call #2 of said lands, a distance of 1141.87 feet to a point being N
88(degree)50'30" E, 265.0 feet from the Southeast corner of lands described in
O.R. Book 387, page 1231 of said public records and the Point of Beginning of
this description. From point of beginning (1) continue N 88(degree)50'30" E,
along call #2, a distance of 20.20 feet to a concrete monument at a corner of
lands described in O.R. Book 222, page 65. (2) Thence run S 1(degree)09'30" E,
along call #3 of said lands, a distance of 30.0 feet to a point being N
1(degree)09' 30(degree) W, 30.0 feet from a concrete monument at a corner of
lands described in O.R. Book 222, page 65. (3) Thence run N 88(degree)50'30" E,
parallel with call #4 of said lands and at a distance of 30.0 feet Northerly, as
measured at right angles therefrom, a distance of 880.0 feet. (4) Thence run N
1(degree)09'30" W, perpendicular to preceding call, a distance of 370.0 feet.
(5) Thence run N 88(degree)50'30" E, parallel with call #4 of lands described in
O.R. parallel with call #4 of lands described in O.R. Book 222, page 55, a
distance of 550.0 feet, more or less, to the waters of the St. Xxxxx River.
Return to the Point of Beginning and (6) run thence N 0(degree)34'15" W,
parallel with the East line of lands described in O.R. Book 387, page 1231, a
distance of 720.0 feet. (7) Thence run N 88(degree)50'30" E, parallel with the
North line of lands described in O.R. Book 222, page 65, a distance of 1755.0
feet more or less to the waters of the St. Xxxxx River. (8) Thence
Southwesterly, meandering said waters, a distance of 487.0 feet, more or less,
to the Easterly and of call (5) and to close.
PARCEL 2:
---------
A tract of land situated in the X.X. Xxxxxxxx Xxxxx, Xxxxxxx 00, Xxxxxxxx 0
Xxxxx Xxxxx 76 East, being a part of lands described in O.R. Book 404, page 1014
of the public records of Xxxxxx County, Florida and being more particularly
described as follows:
Commencing at a concrete monument on the Easterly right-of-way of the Seaboard
Coast Line Railroad at the Northwesterly corner of lands described in O.R. Book
222, page 65 of said public records and run thence N 88(degree)50'30" L, a
distance of 1141.87 feet to a point being N 88(degree)50'30" E 265.0 feet from
the Southeast corner of lands described in O.R. Book 387, page 1231 of said
public records. From said point continue N 88(degree)50'30" E. a distance of
20.20 feet to a concrete monument at a corner of lands described in O.R. Book
222, page 65. Thence run S 1(degree)09'30" E, a distance of 60.0 feet to a
concrete monument at a corner of lands described in O.R. Book 222, page 65 and
the point of beginning of this description. Thence run N 88(degree)50'30" E, to
the westerly shore of
the St. Xxxxx River Run thence Northerly meandering along the westerly shore of
the St. Xxxxx River to the Southerly boundary of the lands described in O.R.
Book 417, page 1064, public records of Xxxxxx County, Florida. Run thence S
88(degree)50'30" W, 140.0 feet, more or less, to a concrete monument. Thence
continue S 88(degree)50'30" W, 421.61 feet to an iron pipe located at a corner
of the lands described in O.R. Book 417, page 1064. Run thence S 1(degree)09'30"
E 370.0 feet to a concrete monument located at a corner of the lands described
in O.R. Book 417, page 1064. Run thence S 88(degree)50'30" W, 880.0 feet to a
concrete monument located at a corner of the lands described in O.R. Book 417,
page 1064. Run thence S 1(degree)09'30" E, 30.0 feet to the point of beginning.
PARCEL 3:
---------
Part of the X.X. Xxxxxxxx Xxxxx, Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 26 East,
West of the St. Xxxxx River, described as follows:
TRACT #1: From a concrete monument set on the Easterly right of way line of the
Seaboard Coast Line Railroad at a distance of 698.4 feet North 8(degree)02'30"
West from the North boundary of Lot 69 of Stinwill Suburban Farms Subdivision as
per plat thereof recorded in Map Book 2, page 39, public records of Xxxxxx
County, Florida. Thence run North 8(degree)02'30" West along the Easterly right
of way line of the Seaboard Coast Line Railroad a distance of 100.73 feet to a
Permanent Reference Marker, run thence North 88(degree)50'30" East a distance of
1162.07 feet to a Permanent Reference Marker, run thence South 1(degree)09'30"
East a distance of 60.00 feet to a Permanent Reference Marker, the point of
beginning of this description. (1) thence run North 88(degree)50'30" East for a
distance of 1370 feet, more or less, to the waters of the St. Xxxxx River;
return to the point of beginning. (2) thence run South 8(degree)02'30" East for
a distance of 1094.11 feet to a Permanent Reference Marker. (3) thence run North
81(degree)57'30" East for a distance of 715.27 feet to an iron pipe (said iron
pipe being 77 feet Northerly from the Existing Barge Port Bulkhead) and continue
in the same course for an additional distance of 245 feet more or less to the
waters of the St. Xxxxx' River. (4) thence run Northerly along the waters of the
St. Xxxxx River to the Easterly end of Call (1) above to close.
TRACT #2: Begin at the Southwest corner of Tract #1, above, run thence South
8(degree)02'30" East for a distance of 50 feet, run thence North
81(degree)57'30" East for a distance of 350 feet, run thence North
8(degree)02'30" West for a distance of 50 feet, to the South line of Tract #1
above, run thence south 81(degree)57'30" West, along the South line of Tract #1
above for a distance of 350 feet to the point of beginning, to close.
TRACT #3: Begin at the Xxxxxxxxx xxxxxx xx Xxxxx #0 as described in Official
Records Book 270, Page 292 in the Public Records of Xxxxxx county, Florida, (1)
Run thence North 81(degree)57'30" East along the South line of Tract #1, as
described in said Official Records Book 270, Page 292, for a distance of 365.27
feet to an iron pipe (said iron pipe being 77 feet Northerly from the existing
barge port bulkhead) and continue in the same course for an additional distance
of 245 feet more or less to the waters of the St. Xxxxx
River; return to the point of beginning. (2) Thence run, South 8(degree)02'30"
East along the East line of Tract #2 as described in said Official Records Book
270, Page 292 for a distance of 50 feet to the Southeast corner of said Tract
#2. (3) Thence run North 81(degree)57"30" East for a distance of 375 feet more
or less to the waters of the St. Xxxxx River. (4) Thence run Northeasterly along
the waters of the St. Xxxxx River to the Easterly end of call (1) above, to
close.
PARCEL 4:
---------
Lands described in Official Records Book 553, page 15, being part of the X.X.
Xxxxxxxx Xxxxx, Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 26 East, EXCEPT those lands
described in Official Records Book 387, page 1231, Official Records Book 387,
page 1633, Official Records Book 416, page 97, Official Records Book 420, page
369 and Official Records Book 432, page 105, all of the public records of Xxxxxx
County, Florida.
PARCEL 5:
---------
A tract of land situated in the X.X. Xxxxxxxx Xxxxx, Xxxxxxx 00, Xxxxxxxx 0
Xxxxx, Xxxxx 26 East, being a part of Revised Map of Stinwell Suburban Farms as
per plat thereof recorded in Map Book 2 page 39 of the public records of Xxxxxx
County, Florida and being a part of those lands described in Official Records
Book 230 page 580 of the public records of said Xxxxxx County, being more
particularly described as follows: Commencing at a concrete monument at the
intersection of the Easterly right of way of the Seaboard Coast Line Railroad
with the North line of Lot 69 of Revised Map of Stinwell Suburban Farms and run
thence South 08 degrees 02 minutes 30 seconds East, along said Easterly right of
way, being 50 feet Easterly as measured at right angles from the centerline of
said Seaboard Coast Line Railroad, a distance of 150.00 feet to a concrete
monument; Thence run North 88 degrees 50 minutes 30 seconds East, along the
North line of those lands described in Official Records Book 295 page 1480 of
said public records and on an Easterly projection thereof, a distance of 1050.36
feet to a railroad spike in center of pavement of Comfort Road; Thence run South
08 degrees 02 minutes 30 seconds East along said center of pavement, being
parallel with the Easterly line of lands described in Official Records Book 295
page 1480 and at a distance of 50.00 feet Easterly as measured perpendicular
therefrom, a distance of 266.85 feet to a nail and cap; Thence North 81 degrees
57 minutes 30 seconds East perpendicular to said center line, a distance of
103.72 feet to the Point of Beginning; Thence North 08 degrees 02 minutes 30
seconds West, along the Westerly line of said lands described in Official
Records Book 270 page 292, a distance of 1183.02 feet to the Northwesterly
corner of said lands; Thence North 01 degrees 09 minutes 30 seconds West, along
call #3 of lands described in Official Records Book 222 page 65, a distance of
60.00 feet to a 4x4 concrete monument; Thence South 88 degrees 50 minutes 30
seconds West, along call #2 of said lands in Official Records Book 222 page 65,
a distance of 59.35 feet; Thence South 08 degrees 02 minutes 30 seconds East,
parallel with the center line of Comfort Road and at a distance of 52.00 feet
Easterly as measured perpendicular therefrom, a distance of 1191.66 feet to a
5/8" rebar with ID cap scribed P.C.P.W.; Thence South 53 degrees 02 minutes 30
seconds, a distance of 76.14 feet to a 5/8" rebar with ID cap scribed P.C.P.W.;
Thence North 08 degrees 02 minutes 30 seconds West, a distance of 40.00 feet to
the Point of Beginning and to close.
A tract of land situated in the X.X. Xxxxxxxx Xxxxx, Xxxxxxx 00, Xxxxxxxx 0
Xxxxx, Xxxxx 26 East, being a part of Revised Map of Stinwell Suburban Farms as
per plat thereof recorded in Map Book 2 page 39 of the public records of Xxxxxx
County, Florida and being a part of those lands described in Official Records
Book 230 page 580 of the public records of said Xxxxxx County,
being more particularly described as follows: Commencing at a concrete monument
at the intersection of the Easterly right of way of the Seaboard Coast Line
Railroad with the North line of Lot 69 of Revised Map of Stinwell Suburban Farms
and run thence South 08 degrees 02 minutes 30 seconds East, along said Easterly
right of way, being 50 feet Easterly as measured at right angles from the
centerline of said Seaboard Coast Line Railroad, a distance of 150.00 feet to a
concrete monument; Thence run North 88 degrees 50 minutes 30 seconds East along
the North line of those lands described in Official Records Book 295 page 1480
of said public records and on an Easterly projection thereof, a distance of
1050.36 feet to a railroad spike in center of pavement of Comfort Road; Thence
run South 08 degrees 02 minutes 30 seconds East along said center of pavement,
being parallel with the Easterly line of lands described in Official Records
Book 295 page 1480 and at a distance of 50.00 feet Easterly as measured
perpendicular therefrom, a distance of 266.85 feet to a nail and cap; Thence
North 81 degrees 57 minutes 30 seconds East perpendicular to said center line, a
distance of 103.72 feet to the Point of Beginning; Thence continue North 81
degrees 57 minutes 30 seconds East, along the Southerly boundary line of those
lands described in official records book 270 page 292, a distance of 329.00 feet
to a 5/8" rebar with I.D. cap scribed P.C.P.W.; Thence South 08 degrees 02
minutes 30 seconds East, a distance of 40.00 feet to a 5/8" rebar with I.D. cap
scribed P.C.P.W.; said point being 10.00 feet more or less Northerly of the
existing asphalt pavement for Port Road; Thence South 81 degrees 57 minutes 30
seconds West, a distance of 329 feet to a 5/8" rebar with I.D. cap scribed
P.C.P.W.; Thence North 08 degrees 02 minutes 30 second West, a distance of 40.00
feet to the Point of beginning and to close.
EXHIBIT "B"
PERMITTED ENCUMBRANCES
1. Rights or claims of parties in possession not shown by the public
records.
2. Easements or claims of easements not shown by the public records.
3. Easements or servitudes apparent from an inspection of the Property and
any variation in location or dimensions, conflict with lines of
adjoining property, encroachments, projections or other matters which
might be disclosed by an accurate survey of the Property.
4. Encroachments, overlaps, boundary line disputes, and any other matters
which would be disclosed by an accurate survey or inspection of the
Property.
5. Any lien, or right to a lien, for services, labor, or material
heretofore or hereafter furnished, imposed by law and not shown by the
public records.
6. Taxes for the year 2002 and taxes or assessments which are not shown as
existing liens by the public records or which may be levied or assessed
subsequent to the date hereof. Said taxes become a lien as of January 1
of each year, but are not due and payable until November 1 of that same
year, pursuant to Section 197.333 F.S.
7. Restrictions, covenants and conditions as contained in the instrument
recorded in Official Records Book 415, page 1406, of the Public Records
of Xxxxxx County, Florida.
8. Easement as set out and reserved in instrument recorded in Official
Records Book 420, page 461, of the Public Records of Xxxxxx County,
Florida. (as to Parcel 1)
9. Any claim that any part of said land is owned by the State of Florida
by right of sovereignty and riparian rights, if any. (as to all
parcels)
10. Any and all rights of the United States of America over any lands now
or formerly lying under navigable waters, arising by reason of the
authority of the United States of America to control navigable waters
in the interest of navigation and commerce, and any conditions
contained in any permit authorizing the filling in of such areas. (as
to all parcels)
11. Easement as set out and reserved in instrument recorded in Deed Book
172, page 294, of the Public Records of Xxxxxx County, Florida. (as to
all parcels)
12. Easement as set out and reserved in instrument recorded in Official
Records Book 413, page 1784, of the Public Records of Xxxxxx County,
Florida.
13. Agreement by and between Seaboard Coast Line Railroad Company and
Sheffield Steel Products, Inc., a Florida corporation, as contained in
instrument dated March 26, 1973
and recorded October 3, 1973 in Official Records Book 299, page 466, of
the Public Records of Xxxxxx County, Florida. (as to all parcels)
14. Easement as set out and reserved in instrument recorded in Official
Records Book 450, page 203, of the Public Records of Xxxxxx County,
Florida. (as to Parcel 2)
15. Agreement as recorded in Official Records Book 292, page 860, of the
public records of Xxxxxx County, Florida.
16. Easement as recorded in Official Records Book 844, page 475, of the
public records of Xxxxxx County, Florida. (as to Parcel 3, Tracts 1, 2
& 3)
17. All rights of any Railroad to any tracks, ties, crossings, switches or
signals, if any located on the Property or accessing the Property and
other properties constituting railroad or in and to the use thereof.
18. Easement to Xxxxxx County Port Authority as recorded in Official
Records Book 222, page 65, of the public records of Xxxxxx County,
Florida. (as to Parcel 3, Tracts 1, 2 & 3)
19. Any portion of subject property lying within the right of way of any
street or roadway, private or public. (as to Parcel 4)
20. Florida Power & Light Company Easement as contained in the instruments
recorded in Official Records Book 468, page 1534 and Official Records
Book 477, page 679, both of the public records of Xxxxxx County,
Florida. (as to Parcel 4)
21. Title to any part of the property lying below the mean high water line
of the St. Xxxxx River. (as to Parcel 4)
22. Any claim that any portion of said lands are sovereign lands of the
State of Florida, including submerged, filled or artificially exposed
lands and lands accreted to such lands. (as to Parcel 4)
23. Reverter Rights to Xxxxxx County Port Authority reserved in Deed
recorded in Official Records Book 422, page 1578, of the public records
of Xxxxxx County, Florida. (as to Parcel 5)
24. Rights of the public, if any, to use Parcel 5 as a roadway.
25. Taxes for the year 2000 and subsequent years. (as to Parcel 5)
Exhibit C
---------
CERTIFICATE OF TITLE
(Fee)
(Wausau, WI and Eau Claire, WI)
The undersigned ____________________________________________, being duly sworn
according to law, deposes and says as follows:
1. That Deponent is the _____________________________________________ of
PITT-DES MOINES, INC., a Pennsylvania corporation (the "Company"), and
is fully authorized and qualified to make this affidavit and all of
Deponent's statements contained herein are to the best of his knowledge
and except as set forth on to the surveys provided to Lawyers Title
Insurance Corporation (if any), the Commitment(s) listed on Exhibit A
and any documents of record.
2. That Company is the owner of the premises described in the
Commitment(s) listed on Exhibit A ("Property").
3. That the Articles of Incorporation of the Company are in full force and
effect. All licenses and franchise taxes due and payable by said
Company have been paid in full.
4. That there are no unpaid bills incurred by the Company for work
performed upon or materials delivered to the Property for the
construction or improvement of said Property during the past 6 months,
except as set forth in the Commitment.
6. That there are no unrecorded tenancies, leases or other occupancies on
the Property except as listed below, and that if any such unrecorded
leases, tenancies or other occupancies are listed below, they contain
no options to purchase, rights of renewal or other unusual provisions
except as noted below:
7. That no other person has possession or any right to possession of the
Property.
8. That there are no financing statements, chattel mortgages, conditional
bills of sale or retention of title agreements affecting any fixtures
located on the Property that are not addressed in the Asset Purchase
Agreement among the Company, PDM Bridge Corp. and Steel Bridges LLC, a
Delaware limited liability company.
9. That there are no unrecorded easements or claims of easement; no
disputes, discrepancies or encroachments affecting a setback or
boundary line; and no contracts, options or rights to purchase other
than in the transaction for which this affidavit is given.
10. That there are no unrecorded judgments, liens, mortgages or other
claims against the Property.
11. That no proceeding in bankruptcy has ever been instituted by or against
the Company, nor has the Company ever made an assignment for the
benefit of creditors.
12. That there is no action or proceeding relating to the Property in any
state or federal court in the United States or any state or federal
judgment or any federal lien of any kind or nature whatever which now
constitutes a lien or charge upon the Property.
[SIGNATURE ON FOLLOWING PAGE]
This Affidavit is given and executed on ______________, 2002.
PITT-DES MOINES, INC.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
STATE OF ________________
COUNTY OF ___________________
Subscribed to and Sworn to
before me this _____ day of
______________, 2002
---------------------------------------
Notary Public
My commission expires:
---------------------
EXHIBIT A
---------
PROPERTY DESCRIPTION
WAUSAU, WI
PARCEL 1:
THE SOUTHWEST 1/4 OF THE NORTHWEST 1/4 OF XXXXXXX 00, XXXXXXXX 00 XXXXX, XXXXX 0
XXXX, XX THE TOWN OF STETTIN, MARATHON COUNTY, WISCONSIN; EXCEPT ALL RAILROAD
RIGHT OF WAY; EXCEPT THE WEST 105 FEET THEREOF; EXCEPT ANY PART THEREOF LYING
NORTH OF HIGHWAY 29; EXCEPT THAT PART THEREOF DESCRIBED AS BEGINNING AT THE
XXXXXXXXX XXXXXX XX XXXX XX 0/0 XX XX 1/4, THENCE NORTH 587.57 FEET, THENCE
WESTERLY 961.91 FEET, THENCE SOUTHEASTERLY 1088.15 FEET, THENCE EASTERLY 69.9
FEET TO THE POINT OF BEGINNING.
PARCEL 2 :
PARCELS 1 AND 2, OF CERTIFIED SURVEY MAP RECORDED JUNE 25, 1976, IN VOLUME 4 OF
CERTIFIED SURVEY MAPS OF MARATHON COUNTY, WISCONSIN, PAGE 227, AS DOCUMENT
NUMBER 697787, BEING A PART OF THE SOUTHWEST 1/4 OF THE NORTHEAST 1/4, AND THE
SOUTHEAST 1/4 OF THE NORTHWEST 1/4 OF SECTION 33, TOWNSHIP 29 NORTH, RANGE 7
EAST, TOWN OF STETTIN, MARATHON COUNTY, WISCONSIN.
PARCEL 3:
THAT PART OF THE SOUTHWEST 1/4 OF THE NORTHWEST 1/4 OF XXXXXXX 00, XXXXXXXX 00
XXXXX, XXXXX 0 XXXX, XX THE TOWN OF STETTIN, MARATHON COUNTY, WISCONSIN,
DESCRIBED AS FOLLOWS:
COMMENCING AT THE CENTER OF SAID SECTION 33; RUNNING THENCE NORTH ALONG THE EAST
LINE OF SAID NW 1/4, 122.22 FEET TO THE NORTHERLY RIGHT OF WAY LINE OF THE
CHICAGO AND NORTHWESTERN TRANSPORTATION CO., THENCE SOUTH 85(degree)46' WEST, ON
SAID NORTHERLY RIGHT XX XXX XXXX, 0000.00 FEET, TO THE XXXX XXXX XX XXXX XX 0/0
XX XX 1/4 AND THE POINT OF BEGINNING; THENCE NORTH 0(degree)36'30" WEST 587.57
FEET TO THE SOUTHERLY RIGHT LINE OF NEW S.T.H. "29", THENCE NORTH 88(degree)43'
WEST ON SAID SOUTHERLY RIGHT XX XXX XXXX, 000.00 FEET, TO THE NORTHEASTERLY LINE
OF AN EASEMENT TO WISCONSIN PUBLIC SERVICE CO.; THENCE SOUTH 55(degree)38' EAST,
ON SAID NORTHEASTERLY EASEMENT LINE, 1088.15 FEET TO THE NORTHERLY RIGHT OF WAY
LINE OF THE CHICAGO AND NORTHWESTERN TRANSPORTATION CO.; THENCE NORTH
85(degree)46' EAST, ON SAID NORTHERLY RIGHT OF WAY LINE, 69.9 FEET TO THE POINT
OF BEGINNING; EXCEPTING ANY PART THEREOF USED FOR HIGHWAY PURPOSES.
PROPERTY DESCRIPTION
EAU CLAIRE, WI
A PARCEL OF LAND LOCATED IN THE SOUTHEAST 1/4 OF SECTION 33, TOWNSHIP 28 NORTH,
RANGE 9 WEST, CITY OF EAU CLAIRE, CHIPPEWA COUNTY, WISCONSIN, BEING FURTHER
DESCRIBED AS FOLLOWS:
COMMENCING AT THE EAST 1/4 CORNER OF SAID SECTION 33; THENCE SOUTH 01(degree)
58' 08" EAST 1124.41 FEET; THENCE NORTH 89(degree) 53' 20" WEST 63.93 FEET TO
THE WEST LINE OF WHITE AVENUE AND THE POINT OF BEGINNING; THENCE CONTINUING
NORTH 89(degree) 53' 20" WEST 2236.14 FEET; THENCE NORTH 01(degree) 32' 23" WEST
115.95 FEET; THENCE NORTH 89(degree) 45' 09" WEST 27.72 FEET; THENCE NORTH
01(degree) 40' 21" WEST 195.98 FEET; THENCE NORTH 89(degree) 41' 50" WEST 264.86
FEET TO THE EAST LINE OF STARR AVENUE; THENCE NORTH 01(degree) 31' 00" WEST
ALONG SAID EAST LINE 607.29 FEET; THENCE ALONG THE ARC OF A 160.00 FOOT RADIUS
CURVE CONCAVE SOUTHEASTERLY, WHOSE CHORD BEARS NORTH 44(degree) 18' 00" EAST
229.48 FEET TO THE SOUTH LINE OF XXXXX STREET; THENCE SOUTH 89(degree) 53' 00"
EAST ALONG SAID LINE 2398.55 FEET TO THE WEST LINE OF WHITE AVENUE; THENCE SOUTH
00(degree) 16' 30" WEST ALONG SAID WEST LINE 1083.67 FEET TO THE POINT OF
BEGINNING. EXCEPTING ANY PORTIONS THEREOF USED FOR ROADWAY PURPOSES.
Exhibit C-1
-----------
CERTIFICATE OF TITLE
(Fee)
(Palatka, FL)
The undersigned _____________________________, being duly sworn according to
law, deposes and says as follows:
1. That Deponent is the __________________________________ of PDM Bridge
Corp., a Delaware corporation, (the "Company"), and is fully authorized
and qualified to make this affidavit and all of Deponent's statements
contained herein are to the best of his knowledge and except as set
forth on to the surveys provided to Commonwealth Land Title Insurance
Company (if any), the Commitment(s) listed on Exhibit A and any
documents of record.
2. That Company is the owner of the premises described in the
Commitment(s) listed on Exhibit A ("Property").
3. That the Articles of Incorporation of the Company are in full force and
effect. All licenses and franchise taxes due and payable by said
Company have been paid in full.
4. That there are no unpaid bills incurred by the Company for work
performed upon or materials delivered to the Property for the
construction or improvement of said Property during the past 6 months,
except as set forth in the Commitment.
6. That there are no unrecorded tenancies, leases or other occupancies on
the Property except as listed below, and that if any such unrecorded
leases, tenancies or other occupancies are listed below, they contain
no options to purchase, rights of renewal or other unusual provisions
except as noted below:
7. That no other person has possession or any right to possession of the
Property.
8. That there are no financing statements, chattel mortgages, conditional
bills of sale or retention of title agreements affecting any fixtures
located on the Property that are not addressed in the Asset Purchase
Agreement among the Company, Pitt-Des Moines, Inc., and Steel Bridges
LLC, a Delaware limited liability company.
9. That there are no unrecorded easements or claims of easement; no
disputes, discrepancies or encroachments affecting a setback or
boundary line; and no contracts, options or rights to purchase other
than in the transaction for which this affidavit is given.
10. That there are no unrecorded judgments, liens, mortgages or other
claims against the Property.
11. That no proceeding in bankruptcy has ever been instituted by or against
the Company, nor has the Company ever made an assignment for the
benefit of creditors.
12. That there is no action or proceeding relating to the Property in any
state or federal court in the United States or any state or federal
judgment or any federal lien of any kind or nature whatever which now
constitutes a lien or charge upon the Property.
[SIGNATURE ON FOLLOWING PAGE]
This Affidavit is given and executed on ______________, 2002.
PDM BRIDGE CORP., A DELAWARE CORPORATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
---------------------------------
STATE OF ________________
COUNTY OF ___________________
Subscribed to and Sworn to
before me this _____ day of
______________, 2002
---------------------------------------
Notary Public
My commission expires:
---------------------
EXHIBIT "A"
PROPERTY DESCRIPTION
PARCEL 1:
---------
TOWNSHIP 9 SOUTH - RANGE 26 EAST
Section 37:
A tract of land situated in the X.X. Xxxxxxxx Xxxxx, Xxxxxxx 00, Xxxxxxxx 0
Xxxxx, Xxxxx 26 East, being a part of lands described in O.R. Book 404, page
1014 of the public records of Xxxxxx County, Florida, and being more
particularly described as follows:
Commencing at a concrete monument on the Easterly right-of-way of the Seaboard
Coast Line Railroad at the Northwesterly corner of lands described in O.R. Book
222, page 65 of said public records, and run thence N 88(degree)50'30" E, along
call #2 of said lands, a distance of 1141.87 feet to a point being N
88(degree)50'30" E, 265.0 feet from the Southeast corner of lands described in
O.R. Book 387, page 1231 of said public records and the Point of Beginning of
this description. From point of beginning (1) continue N 88(degree)50'30" E,
along call #2, a distance of 20.20 feet to a concrete monument at a corner of
lands described in O.R. Book 222, page 65. (2) Thence run S 1(degree)09'30" E,
along call #3 of said lands, a distance of 30.0 feet to a point being N
1(degree)09' 30(degree) W, 30.0 feet from a concrete monument at a corner of
lands described in O.R. Book 222, page 65. (3) Thence run N 88(degree)50'30" E,
parallel with call #4 of said lands and at a distance of 30.0 feet Northerly, as
measured at right angles therefrom, a distance of 880.0 feet. (4) Thence run N
1(degree)09'30" W, perpendicular to preceding call, a distance of 370.0 feet.
(5) Thence run N 88(degree)50'30" E, parallel with call #4 of lands described in
O.R. parallel with call #4 of lands described in O.R. Book 222, page 55, a
distance of 550.0 feet, more or less, to the waters of the St. Xxxxx River.
Return to the Point of Beginning and (6) run thence N 0(degree)34'15" W,
parallel with the East line of lands described in O.R. Book 387, page 1231, a
distance of 720.0 feet. (7) Thence run N 88(degree)50'30" E, parallel with the
North line of lands described in O.R. Book 222, page 65, a distance of 1755.0
feet more or less to the waters of the St. Xxxxx River. (8) Thence
Southwesterly, meandering said waters, a distance of 487.0 feet, more or less,
to the Easterly and of call (5) and to close.
PARCEL 2:
---------
A tract of land situated in the X.X. Xxxxxxxx Xxxxx, Xxxxxxx 00, Xxxxxxxx 0
Xxxxx Xxxxx 76 East, being a part of lands described in O.R. Book 404, page 1014
of the public records of Xxxxxx County, Florida and being more particularly
described as follows:
Commencing at a concrete monument on the Easterly right-of-way of the Seaboard
Coast Line Railroad at the Northwesterly corner of lands described in O.R. Book
222, page 65 of said public records and run thence N 88(degree)50'30" L, a
distance of 1141.87 feet to a point being N 88(degree)50'30" E 265.0 feet from
the Southeast corner of lands described in O.R. Book 387, page 1231 of said
public records. From said point continue N 88(degree)50'30" E. a distance of
20.20 feet to a concrete monument at a corner of lands described in O.R. Book
222, page 65. Thence run S 1(degree)09'30" E, a distance of 60.0 feet to a
concrete monument at a corner of lands described in O.R. Book 222, page 65 and
the point of beginning of this description. Thence run N 88(degree)50'30" E, to
the westerly
shore of the St. Xxxxx River Run thence Northerly meandering along the westerly
shore of the St. Xxxxx River to the Southerly boundary of the lands described in
O.R. Book 417, page 1064, public records of Xxxxxx County, Florida. Run thence S
88(degree)50'30" W, 140.0 feet, more or less, to a concrete monument. Thence
continue S 88(degree)50'30" W, 421.61 feet to an iron pipe located at a corner
of the lands described in O.R. Book 417, page 1064. Run thence S 1(degree)09'30"
E 370.0 feet to a concrete monument located at a corner of the lands described
in O.R. Book 417, page 1064. Run thence S 88(degree)50'30" W, 880.0 feet to a
concrete monument located at a corner of the lands described in O.R. Book 417,
page 1064. Run thence S 1(degree)09'30" E, 30.0 feet to the point of beginning.
PARCEL 3:
---------
Part of the X.X. Xxxxxxxx Xxxxx, Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 26 East,
West of the St. Xxxxx River, described as follows:
TRACT #1: From a concrete monument set on the Easterly right of way line of the
Seaboard Coast Line Railroad at a distance of 698.4 feet North 8(degree)02'30"
West from the North boundary of Lot 69 of Stinwill Suburban Farms Subdivision as
per plat thereof recorded in Map Book 2, page 39, public records of Xxxxxx
County, Florida. Thence run North 8(degree)02'30" West along the Easterly right
of way line of the Seaboard Coast Line Railroad a distance of 100.73 feet to a
Permanent Reference Marker, run thence North 88(degree)50'30" East a distance of
1162.07 feet to a Permanent Reference Marker, run thence South 1(degree)09'30"
East a distance of 60.00 feet to a Permanent Reference Marker, the point of
beginning of this description. (1) thence run North 88(degree)50'30" East for a
distance of 1370 feet, more or less, to the waters of the St. Xxxxx River;
return to the point of beginning. (2) thence run South 8(degree)02'30" East for
a distance of 1094.11 feet to a Permanent Reference Marker. (3) thence run North
81(degree)57'30" East for a distance of 715.27 feet to an iron pipe (said iron
pipe being 77 feet Northerly from the Existing Barge Port Bulkhead) and continue
in the same course for an additional distance of 245 feet more or less to the
waters of the St. Xxxxx' River. (4) thence run Northerly along the waters of the
St. Xxxxx River to the Easterly end of Call (1) above to close.
TRACT #2: Begin at the Southwest corner of Tract #1, above, run thence South
8(degree)02'30" East for a distance of 50 feet, run thence North
81(degree)57'30" East for a distance of 350 feet, run thence North
8(degree)02'30" West for a distance of 50 feet, to the South line of Tract #1
above, run thence south 81(degree)57'30" West, along the South line of Tract #1
above for a distance of 350 feet to the point of beginning, to close.
TRACT #3: Begin at the Xxxxxxxxx xxxxxx xx Xxxxx #0 as described in Official
Records Book 270, Page 292 in the Public Records of Xxxxxx county, Florida, (1)
Run thence North 81(degree)57'30" East along the South line of Tract #1, as
described in said Official Records Book 270, Page 292, for a distance of 365.27
feet to an iron pipe (said iron pipe being 77 feet Northerly from the existing
barge port bulkhead) and continue in the same course for an additional distance
of 245 feet more or less to the waters of the St. Xxxxx
River; return to the point of beginning. (2) Thence run, South 8(degree)02'30"
East along the East line of Tract #2 as described in said Official Records Book
270, Page 292 for a distance of 50 feet to the Southeast corner of said Tract
#2. (3) Thence run North 81(degree)57"30" East for a distance of 375 feet more
or less to the waters of the St. Xxxxx River. (4) Thence run Northeasterly along
the waters of the St. Xxxxx River to the Easterly end of call (1) above, to
close.
PARCEL 4:
---------
Lands described in Official Records Book 553, page 15, being part of the X.X.
Xxxxxxxx Xxxxx, Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 26 East, EXCEPT those lands
described in Official Records Book 387, page 1231, Official Records Book 387,
page 1633, Official Records Book 416, page 97, Official Records Book 420, page
369 and Official Records Book 432, page 105, all of the public records of Xxxxxx
County, Florida.
PARCEL 5:
---------
A tract of land situated in the X.X. Xxxxxxxx Xxxxx, Xxxxxxx 00, Xxxxxxxx 0
Xxxxx, Xxxxx 26 East, being a part of Revised Map of Stinwell Suburban Farms as
per plat thereof recorded in Map Book 2 page 39 of the public records of Xxxxxx
County, Florida and being a part of those lands described in Official Records
Book 230 page 580 of the public records of said Xxxxxx County, being more
particularly described as follows: Commencing at a concrete monument at the
intersection of the Easterly right of way of the Seaboard Coast Line Railroad
with the North line of Lot 69 of Revised Map of Stinwell Suburban Farms and run
thence South 08 degrees 02 minutes 30 seconds East, along said Easterly right of
way, being 50 feet Easterly as measured at right angles from the centerline of
said Seaboard Coast Line Railroad, a distance of 150.00 feet to a concrete
monument; Thence run North 88 degrees 50 minutes 30 seconds East, along the
North line of those lands described in Official Records Book 295 page 1480 of
said public records and on an Easterly projection thereof, a distance of 1050.36
feet to a railroad spike in center of pavement of Comfort Road; Thence run South
08 degrees 02 minutes 30 seconds East along said center of pavement, being
parallel with the Easterly line of lands described in Official Records Book 295
page 1480 and at a distance of 50.00 feet Easterly as measured perpendicular
therefrom, a distance of 266.85 feet to a nail and cap; Thence North 81 degrees
57 minutes 30 seconds East perpendicular to said center line, a distance of
103.72 feet to the Point of Beginning; Thence North 08 degrees 02 minutes 30
seconds West, along the Westerly line of said lands described in Official
Records Book 270 page 292, a distance of 1183.02 feet to the Northwesterly
corner of said lands; Thence North 01 degrees 09 minutes 30 seconds West, along
call #3 of lands described in Official Records Book 222 page 65, a distance of
60.00 feet to a 4x4 concrete monument; Thence South 88 degrees 50 minutes 30
seconds West, along call #2 of said lands in Official Records Book 222 page 65,
a distance of 59.35 feet; Thence South 08 degrees 02 minutes 30 seconds East,
parallel with the center line of Comfort Road and at a distance of 52.00 feet
Easterly as measured perpendicular therefrom, a distance of 1191.66 feet to a
5/8" rebar with ID cap scribed P.C.P.W.; Thence South 53 degrees 02 minutes 30
seconds, a distance of 76.14 feet to a 5/8" rebar with ID cap scribed P.C.P.W.;
Thence North 08 degrees 02 minutes 30 seconds West, a distance of 40.00 feet to
the Point of Beginning and to close.
A tract of land situated in the X.X. Xxxxxxxx Xxxxx, Xxxxxxx 00, Xxxxxxxx 0
Xxxxx, Xxxxx 26 East, being a part of Revised Map of Stinwell Suburban Farms as
per plat thereof recorded in Map Book 2 page 39 of the public records of Xxxxxx
County, Florida and being a part of those lands described in Official Records
Book 230 page 580 of the public records of said Xxxxxx County,
being more particularly described as follows: Commencing at a concrete monument
at the intersection of the Easterly right of way of the Seaboard Coast Line
Railroad with the North line of Lot 69 of Revised Map of Stinwell Suburban Farms
and run thence South 08 degrees 02 minutes 30 seconds East, along said Easterly
right of way, being 50 feet Easterly as measured at right angles from the
centerline of said Seaboard Coast Line Railroad, a distance of 150.00 feet to a
concrete monument; Thence run North 88 degrees 50 minutes 30 seconds East along
the North line of those lands described in Official Records Book 295 page 1480
of said public records and on an Easterly projection thereof, a distance of
1050.36 feet to a railroad spike in center of pavement of Comfort Road; Thence
run South 08 degrees 02 minutes 30 seconds East along said center of pavement,
being parallel with the Easterly line of lands described in Official Records
Book 295 page 1480 and at a distance of 50.00 feet Easterly as measured
perpendicular therefrom, a distance of 266.85 feet to a nail and cap; Thence
North 81 degrees 57 minutes 30 seconds East perpendicular to said center line, a
distance of 103.72 feet to the Point of Beginning; Thence continue North 81
degrees 57 minutes 30 seconds East, along the Southerly boundary line of those
lands described in official records book 270 page 292, a distance of 329.00 feet
to a 5/8" rebar with I.D. cap scribed P.C.P.W.; Thence South 08 degrees 02
minutes 30 seconds East, a distance of 40.00 feet to a 5/8" rebar with I.D. cap
scribed P.C.P.W.; said point being 10.00 feet more or less Northerly of the
existing asphalt pavement for Port Road; Thence South 81 degrees 57 minutes 30
seconds West, a distance of 329 feet to a 5/8" rebar with I.D. cap scribed
P.C.P.W.; Thence North 08 degrees 02 minutes 30 second West, a distance of 40.00
feet to the Point of beginning and to close.
Exhibit C-2
-----------
COMMONWEALTH LAND TITLE COMPANY
00000 Xxxx Xxxx Xxxx Xxxx., Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
PHONE (000) 000-0000
FAX (000) 000-0000
GAP COVERAGE INDEMNITY
(Palatka, Florida)
Case No. 163372 For Commitment Dated: January 16, 2002
This Idemnity given by PDM Bridge Corp., a Delaware corporation and (hereinafter
referred to as "Indemnitor") to Commonwealth Land Title Company (hereinafter
referred to as "Commonwealth").
WHEREAS, Commonwealth has issued its Title Insurance Commitment Case No. 163372
bearing an effective date of 1/16/02 for the property described in said
Commitment; and
WHEREAS, Indemnitor has requested that Commonwealth provide extended Gap
Coverage of said Title Insurance Commitment from the effective date thereof
through the date of the recording of the conveyance documents to the purchasers
of the property;
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Indemnitor hereby states that since the effective date of the
Commitment, the status of the title to the real estate set forth
therein has not changed. It further states that no defects, liens,
encumberances, adverse claims or other matters have occurred or have
been created since the effective date of the Commitment which would
give rise to a claim under the policy to be issued to the purchasers or
mortgagees of said property.
2. Indemnitor hereby agrees to defend, hold harmless and indemnify
Commonwealth from all losses, damages, cost or expenses, including
court costs and attorneys fees, which Commonwealth may sustain in the
event the assurances set forth in paragraph 1 above prove to be false
or incorrect.
3. Commonwealth agrees to issue its policy/policies of title insurance to
the purchasers/mortgagees of the property without exception to any
matters arising after the effective date of the Commitment and before
the recording of the conveyance documents.
4. The obligations set forth herein are binding upon the Indemnitor, its
successors and assigns.
Dated: ____________, 2002
Indemnitor
PDM Bridge Corp.,
a Delaware corporation
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Address:
--------------------------
Phone No.
-------------------------
LAWYERS TITLE INSURANCE CORP.
00000 Xxxxxxx Xx., Xxxxx 000
X.X. Xxx 000
Xxxxxxxx, XX 00000-0000
PHONE (000) 000-0000
FAX (000) 000-0000
GAP COVERAGE INDEMNITY
(Eau Claire, WI)
Case No. 191105 For Commitment Dated: 1/8/02
This Idemnity given by Pitt-Des Moines, Inc., a Pennsylvania corporation
(hereinafter referred to as "Indemnitor") to Lawyers Title Insurance Corporation
(hereinafter referred to as "Lawyers").
WHEREAS, Lawyers has issued its Title Insurance Commitment Case No. 191105
bearing an effective date of 1/8/02 for the property described in said
Commitment; and
WHEREAS, Indemnitor has requested that Lawyers provide extended Gap Coverage of
said Title Insurance Commitment from the effective date thereof through the date
of the recording of the conveyance documents to the purchasers of the property;
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Indemnitor hereby states that since the effective date of the
Commitment, the status of the title to the real estate set forth
therein has not changed. It further states that no defects, liens,
encumberances, adverse claims or other matters have occurred or have
been created since the effective date of the Commitment which would
give rise to a claim under the policy to be issued to the purchasers or
mortgagees of said property.
2. Indemnitor hereby agrees to defend, hold harmless and indemnify Lawyers
from all losses, damages, cost or expenses, including court costs and
attorneys fees, which Lawyers may sustain in the event the assurances
set forth in paragraph 1 above prove to be false or incorrect.
3. Lawyers agree to issue its policy/policies of title insurance to the
purchasers/mortgagees of the property without exception to any matters
arising after the effective date of the Commitment and before the
recording of the conveyance documents.
4. The obligations set forth herein are binding upon the Indemnitor, its
successors and assigns.
Dated: _____________, 2002
Indemnitor
Pitt-Des Moines, Inc.,
a Pennsylvania corporation
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
Address:
-------------------------
Phone No.
------------------------
LAWYERS TITLE INSURANCE CORP.
00000 Xxxxxxx Xx., Xxxxx 000
X.X. Xxx 000
Xxxxxxxx, XX 00000-0000
PHONE (000) 000-0000
FAX (000) 000-0000
GAP COVERAGE INDEMNITY
(Wausau, WI)
Case No. 191106 For Commitment Dated: 1/28/02
This Idemnity given by Pitt-Des Moines, Inc., a Pennsylvania corporation and
(hereinafter referred to as "Indemnitor") to Lawyers Title Insurance Corporation
(hereinafter referred to as "Lawyers").
WHEREAS, Lawyers has issued its Title Insurance Commitment Case No. 191106
bearing an effective date of 1/28/02 for the property described in said
Commitment; and
WHEREAS, Indemnitor has requested that Lawyers provide extended Gap Coverage of
said Title Insurance Commitment from the effective date thereof through the date
of the recording of the conveyance documents to the purchasers of the property;
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Indemnitor hereby states that since the effective date of the
Commitment, the status of the title to the real estate set forth
therein has not changed. It further states that no defects, liens,
encumberances, adverse claims or other matters have occurred or have
been created since the effective date of the Commitment which would
give rise to a claim under the policy to be issued to the purchasers or
mortgagees of said property.
2. Indemnitor hereby agrees to defend, hold harmless and indemnify Lawyers
from all losses, damages, cost or expenses, including court costs and
attorneys fees, which Lawyers may sustain in the event the assurances
set forth in paragraph 1 above prove to be false or incorrect.
3. Lawyers agree to issue its policy/policies of title insurance to the
purchasers/mortgagees of the property without exception to any matters
arising after the effective date of the Commitment and before the
recording of the conveyance documents.
4. The obligations set forth herein are binding upon the Indemnitor, its
successors and assigns.
Dated: ___________
Indemnitor
Pitt-Des Moines, Inc.,
a Pennsylvania corporation
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Address:
------------------------------
Phone No.
-----------------------------
Exhibit D
---------
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is entered
into as of ______________, 2002, by and among PITT-DES MOINES, INC., a
Pennsylvania corporation (the "Company"), PDM BRIDGE CORP., a Delaware
corporation and wholly-owned subsidiary of the Company ("PDM Florida" and,
together with the Company, "Assignors"), and STEEL BRIDGES, LLC ("Assignee").
W I T N E S S E T H
WHEREAS, Assignors are engaged, among other things, in the business of
the engineering and design, procurement and fabrication of steel bridges (the
"Business");
WHEREAS, Assignee desires to purchase substantially all of the assets
of the Business and to assume substantially all of the liabilities associated
with the Business, and Assignors desire to sell and transfer to Assignee the
Business and such assets and liabilities;
WHEREAS, Assignors and Assignee have entered into that certain Asset
Purchase Agreement dated as of ______________ __, 2002 (the "Purchase
Agreement") providing, subject to the terms and conditions set forth therein,
for the sale, transfer, assignment and delivery by Assignors to Assignee of the
Acquired Assets and the Assumed Obligations (both as defined in the Purchase
Agreement); and
WHEREAS, the parties hereto desire to execute and deliver this
Agreement for the purpose of effecting the transfer, assignment and assumption
of the Assumed Obligations;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants contained herein and in the Purchase Agreement, and for
other good and valuable consideration (including without limitation the payment
of the Purchase Price as defined in the Purchase Agreement) the receipt and
sufficiency of which are hereby acknowledged, Assignee and Assignors, intending
to be legally bound, hereby agree as follows:
1. Assignors hereby transfer and assign to Assignee, and Assignee hereby accepts
such transfer and assignment and assumes and undertakes to pay, perform and
discharge, as and when due, each of the Assumed Obligations (as defined in the
Purchase Agreement).
2. This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which when taken together shall
constitute one and the same instrument.
3. This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. This Agreement shall not be
construed to confer any right or benefit upon any Person (as defined in the
Purchase Agreement) other than the Assignors, Assignee and their respective
successors and assigns.
IN WITNESS WHEREOF, this Assignment and Assumption Agreement has been
duly executed as of the date first above written.
PDM BRIDGE CORP. STEEL BRIDGES, LLC
By:_____________________________ By:______________________________
Authorized Officer Authorized Officer
PITT-DES MOINES, INC.
By:____________________________
Authorized Officer
Exhibit E
---------
XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS, that PITT-DES MOINES, INC., a
Pennsylvania corporation (the "Company"), and PDM BRIDGE CORP., a Delaware
corporation and wholly owned subsidiary of the Company (collectively, the
"Sellers"), for good and valuable consideration, the sufficiency and receipt of
which is hereby acknowledged, and intending to be legally bound, do hereby sell,
transfer, convey, set over and deliver to STEEL BRIDGES, LLC ("Buyer"), its
successors and assigns, all of Sellers' rights, title and interest in and to the
Acquired Assets (as defined in that certain Asset Purchase Agreement dated as of
______________ __, 2002 by and among Buyer and Sellers (the "Agreement")).
Sellers hereby constitute and appoint Buyer the true and lawful
attorney of Sellers, with full authority and power of substitution, in the name
and stead of Sellers, but on behalf and for the benefit of Buyer to demand and
receive any and all of the Acquired Assets, to give receipts and releases for
and in respect of the same, or any part thereof, and to execute on behalf of
Sellers additional instruments of transfer and assignment and do all acts and
things in relation to the Acquired Assets which Buyer shall deem necessary and
desirable in order to transfer and assign to and vest in Buyer, its legal
representatives, successors and assigns, full right and title to and in all of
the Acquired Assets.
Sellers hereby covenant that from time to time and at Buyer's request
and without further consideration, Sellers shall do, execute, acknowledge and
deliver or shall cause to be done, executed, acknowledged and delivered all and
every such further acts, transfers, conveyances, assignments, powers of attorney
and assurances as reasonably may be required for assuring, conveying,
transferring, confirming and vesting unto Buyer of any of the Acquired Assets.
Nothing in this instrument, express or implied, is intended or shall be
construed to confer upon, or give to, any person, firm or corporation other than
Buyer and its successors and assigns, any remedy or claim under or by reason of
this instrument or by any of its terms, covenants or conditions, and all the
terms, covenants and conditions, promises and agreements in this instrument
contained shall be for the sole and exclusive benefit of Buyer, its successors
and assigns.
BUYER ACKNOWLEDGES THAT, EXCEPT AS SPECIFICALLY SET FORTH IN THE
AGREEMENT, BUYER IS PURCHASING THE ACQUIRED ASSETS IN THEIR EXISTING CONDITION,
"AS IS," "WHERE IS" AND WITHOUT ANY REPRESENTATION OR WARRANTY OF SELLERS,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
IN WITNESS WHEREOF, the undersigned have executed this Xxxx of Sale on
this _____ day of ___________________, 2002.
PITT-DES MOINES, INC.
By:
--------------------------------------------
Authorized Officer
PDM BRIDGE CORP.
By:
--------------------------------------------
Authorized Officer
Exhibit F
---------
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS that the undersigned, PDM BRIDGE CORP.
("PDM Florida"), with the authority of the Board of Directors of the Company,
hereby constitutes and appoints ______________ of __________________ ("______"),
its true and lawful attorney for it and in its name, place and stead, to perform
any and all functions necessary to effectuate, and to execute, acknowledge or
negotiate any document pertaining to, the transfer of certain vehicles and
trailers owned by PDM Florida to be transferred in connection with that certain
Asset Purchase Agreement dated as of ______________ ___, 2002, by and among PDM
Bridge Corp. and Pitt-Des Moines, Inc., as Sellers, and Steel Bridges, LLC as
Buyer, to Buyer, and to do any and all things as may be necessary or proper to
effectuate the above-referenced transfer. The undersigned hereby ratifies and
confirms all that said attorney, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this ___ day of the month of ____________, 2002.
WITNESS: PDM BRIDGE CORP.
______________________________ By:_____________________________
AFFIDAVIT
On this the ____ day of ___________, A.D. 2002, before me a notary
public the undersigned officer, personally appeared ____________________, to me
personally known to me (or satisfactorily proven) to be the person whose name is
subscribed to the within instrument, who first being by me duly sworn, declared
that he is the ________________ of PDM Bridge Corp. and that he signed the
foregoing Power of Attorney in his capacity as such officer for the purposes
therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
--------------------------------------
Notary Public
My commission expires:
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS that the undersigned, PITT-DES MOINES,
INC. ("PDM"), with the authority of the Board of Directors of the Company,
hereby constitutes and appoints ________________ of ________________
("________"), its true and lawful attorney for it and in its name, place and
stead, to perform any and all functions necessary to effectuate, and to execute,
acknowledge or negotiate any document pertaining to, the transfer of certain
vehicles and trailers owned by PDM to be transferred in connection with that
certain Asset Purchase Agreement dated as of ______________ ___, 2002, by and
among Pitt-Des Moines, Inc. and PDM Bridge Corp., together as Sellers, and Steel
Bridges, LLC, as Buyer, to Buyer, and to do any and all things as may be
necessary or proper to effectuate the above-referenced transfer. The undersigned
hereby ratifies and confirms all that said attorney, may lawfully do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this ___ day of the month of ______________, 2002.
WITNESS: PITT-DES MOINES, INC.
______________________________ By:_______________________________
AFFIDAVIT
On this the ____ day of __________, A.D. 2002, before me a notary
public the undersigned officer, personally appeared __________________, to me
personally known to me (or satisfactorily proven) to be the person whose name is
subscribed to the within instrument, who first being by me duly sworn, declared
that he is the __________________ of Pitt-Des Moines, Inc. and that he signed
the foregoing Power of Attorney in his capacity as such officer for the purposes
therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
----------------------------------
Notary Public
My commission expires:
Exhibit G
---------
TRADEMARK ASSIGNMENT AGREEMENT
THIS TRADEMARK ASSIGNMENT AGREEMENT is entered into as of
_____________, 2002 (this "Assignment"), by PITT-DES MOINES, INC., a
Pennsylvania corporation ("PDM"), and PDM BRIDGE CORP. ("PDM Florida"), a
Delaware corporation (together with their successors and permitted assigns,
collectively, "Assignors").
RECITALS:
WHEREAS, Assignors are engaged, among other things, in the business of
the engineering and design, procurement and fabrication of steel bridges (the
"Business");
WHEREAS, STEEL BRIDGES, LLC ("Assignee") desires to purchase
substantially all of the related tangible and intangible assets used in the
conduct of the Business (including, to the extent assignable, all licenses and
permits) and to assume certain liabilities associated with the Business, and
Assignors desire to sell and transfer to Assignee the Business and such assets
and liabilities; and
WHEREAS, Assignors and Assignee have entered into that certain Asset
Purchase Agreement dated as of __________________, 2001 (as amended, restated,
supplemented or otherwise modified, the "Asset Purchase Agreement") providing,
subject to the terms and conditions set forth therein, for the sale, transfer,
assignment and delivery by Assignors to Assignee of the Acquired Assets; and
WHEREAS, the Assignors desire to execute and deliver this Assignment
for the purpose of effecting the transfer, assignment and assumption of certain
rights and liabilities.
NOW, THEREFORE, in consideration of the foregoing Recitals and the
mutual agreements and covenants contained in the Asset Purchase Agreement, and
for other good and valuable consideration (including without limitation the
payment of the Purchase Price), the receipt and sufficiency of which are hereby
acknowledged, Assignors hereby agree as follows:
1. Trademark Assignment. Assignors hereby assign and set over unto
Assignee the following:
A. Assignors' entire right, title and interest in and to its
trademarks used in the Business held in the United States and
in all foreign countries, whether or not such trademarks have
been registered prior to, on or after the date of this
Assignment, including the trademarks set forth on Schedule A
attached hereto (the "Trademarks"), and any and all renewals
and extensions thereof, together with the goodwill of the
Business carried on in connection with such Trademarks; and
B. All claims, demands and rights of action, both statutory and
based upon common law, that Assignors have or might have by
reason of any infringement of any Trademark prior to, on or
after the date of this Assignment, together with the right to
prosecute such claims, demands and rights of action in
Assignee's own name.
2. Further Assurance. Assignors agree that they shall do, execute, acknowledge
and deliver, at Assignee's expense, all acts, agreements, instruments, notices
and assurances as may be reasonably requested by Assignee to further effect,
evidence and record the transactions contemplated hereby.
3. Enforceability. If any provision of this Assignment shall be invalid or
unenforceable, in whole or in part, or as applied to any circumstance, under the
laws of any jurisdiction which may govern for such purpose, then such provision
shall be deemed to be modified or restricted to the extent and in the manner
necessary to render the same valid and enforceable, either generally or as
applied to such circumstance, or shall be deemed excised from this Assignment,
as the case may require, and this Assignment shall be construed and enforced to
the maximum extent permitted by law as if such provision had been originally
incorporated herein as so modified or restricted, or as if such provision had
not been originally incorporated herein, as the case may be.
4. Amendment. This Assignment may not be changed orally, but only by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification, extension or discharge is sought.
5. No Third-Party Beneficiaries. Nothing expressed or implied in this Assignment
is intended to confer upon any Person, other than the Assignors and Assignee and
their respective successors or permitted assigns, any rights, remedies,
obligations or liabilities under or by reason of this Assignment.
6. GOVERNING LAW. THIS ASSIGNMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA
(WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF) AND, TO
THE EXTENT APPLICABLE, THOSE UNITED STATES LAWS, OR THE NATIONAL LAWS OF ANOTHER
COUNTRY IN WHICH ANY OF THE TRADEMARKS IS USED, WHETHER OR NOT REGISTERED OR
APPLIED FOR, AND THE APPROPRIATE RULES AND REGULATIONS GOVERNING TRADEMARKS IN
THE RESPECTIVE COUNTRIES.
7. Definition. Defined terms with initial capital letters that are used herein
but not defined herein shall have the respective meanings, if any, set forth in
the Asset Purchase Agreement.
8. Successors and Assigns. This Assignment shall be binding upon the Assignors
and its successors and assigns and shall inure to the benefit of the Assignee
and its successors and assigns. This Assignment shall not be construed to confer
any right or benefit upon any Person, other than the Assignors, the Assignee and
their respective successors and assigns.
IN WITNESS WHEREOF, Assignors have caused this Trademark Assignment to
be executed as of the date first written above.
ASSIGNORS:
PITT-DES MOINES, INC.
By:
-------------------------------
Authorized Officer
PDM BRIDGE CORP.
By:
-------------------------------
Authorized Officer
SCHEDULE A
Registered Trademarks:
Reg. No. Description
-------- -----------
1,461,339 "PDM" as a stylized word xxxx - construction of sewage
treatment plants for others.
1,832,911 "PDM" - Class 37 - Construction of Bridges, buildings, tanks
and vessels.
Unregistered Trademarks:
PDM Bridge
PDM Bridge Corp.
Exhibit H
---------
PITT-DES MOINES, INC.
CERTIFICATE
OF
THE SECRETARY
Reference is made to that certain Asset Purchase Agreement dated as of
______________ __, 2002 (the "Agreement") by and among Pitt-Des Moines, Inc.
(the "Corporation"), PDM Bridge Corp. (together with the Corporation, the
"Sellers"), and Steel Bridges, LLC (the "Buyer").
I, __________________, hereby certify that I am the duly elected,
qualified and acting Secretary of the Corporation. I further certify that:
1. Attached hereto as Exhibit A is a true, complete and correct copy of
the Amended and Restated Articles of Incorporation of the Corporation as
certified by the Secretary of State of the Commonwealth of Pennsylvania, which
are in full force and effect as of the date hereof and have been in full force
and effect at all times since January 1, 2001 (the "Articles of Incorporation");
and
2. Attached hereto as Exhibit B is a true, complete and correct copy of
the Amended and Restated Bylaws of the Corporation, which are in full force and
effect as of the date hereof and have been in full force and effect at all times
since January 1, 2001; and
3. The persons named below are, as of the date hereof and have been in
full force and effect at all times since January 1, 2001, duly elected,
qualified and acting officers of the Corporation holding the offices below
indicated and the signature opposite the name of each such person is a genuine
signature of such person.
Name: Position: Signature:
----- --------- ----------
----------------- Chief Executive Officer
and President
------------------------
----------------- Vice President, Finance
and Treasurer
------------------------
----------------- Secretary
------------------------
4. Attached hereto as Exhibit C is a true, complete and correct copy of
Resolutions duly adopted by the Corporation's Board of Directors, which approve
the execution, delivery and performance of the Agreement and the consummation of
the transactions contemplated thereby. All of such Resolutions are in full force
and effect on and as of the date hereof and have been in full force and effect
at all times since _________________, having not been in any way amended,
altered or repealed.
xxxxxx
IN WITNESS WHEREOF, I have executed this Certificate on this _____ day
of _______________________, 2002.
-----------------------------------------
Secretary
I, _____________, as Vice President, Finance and Treasurer of the
Corporation, do hereby certify that ________________ was validly elected to the
office of and is the Secretary of the Corporation, and that the signature set
forth immediately above is his genuine signature.
IN WITNESS WHEREOF, I have executed this Certificate on this _____ day
of __________ , 2002.
---------------------------------------
Vice President, Finance and Treasurer
Secretary's Certificate
-----------------------
Exhibit A
---------
Articles of Incorporation
Secretary's Certificate
-----------------------
Exhibit B
---------
Bylaws
Secretary's Certificate
-----------------------
Exhibit C
---------
Resolutions
Exhibit I
---------
PDM BRIDGE CORP.
CERTIFICATE
OF
THE SECRETARY
Reference is made to that certain Asset Purchase Agreement dated as of
______________ __, 2002 (the "Agreement") among PDM Bridge Corp. (the
"Corporation"), Pitt-Des Moines, Inc. (together with the Corporation, the
"Sellers"), and Steel Bridges, LLC (the "Buyer").
I, ______________, hereby certify that I am the duly elected, qualified
and acting Secretary of the Corporation. I further certify that:
1. Attached hereto as Exhibit A is a true, complete and correct copy of
the Certificate of Incorporation of the Corporation as certified by the
Secretary of State of the State of Delaware, which is in full force and effect
as of the date hereof and has been in full force and effect at all times since
January 1, 2001 (the "Certificate of Incorporation"); and
2. Attached hereto as Exhibit B is a true, complete and correct copy of
the Bylaws of the Corporation, which are in full force and effect as of the date
hereof and have been in full force and effect at all times since January 1,
2001; and
3. The persons named below are, as of the date hereof and have been in
full force and effect since January 1, 2001, duly elected, qualified and acting
officers of the Corporation holding the offices below indicated and the
signature opposite the name of each such person is a genuine signature of such
person.
Name: Position: Signature:
----- --------- ----------
____________ President
-----------------------------------
____________ Vice President
-----------------------------------
____________ Secretary
-----------------------------------
4. Attached hereto as Exhibit C is a true, complete and correct copy of
Resolutions duly adopted by the Corporation's sole stockholder and board of
directors, which approve the execution, delivery and performance of the
Agreement and the consummation of the transactions contemplated thereby. All of
such Resolutions are in full force and effect on and as of the date hereof and
have been in full force and effect since ____________________, having not been
in any way amended, altered or repealed.
IN WITNESS WHEREOF, I have executed this Certificate on this _____ day
of ______________________, 2002.
-------------------------
Secretary
I, ______________, as Vice President of the Corporation, do hereby
certify that __________________was validly elected to the office of and is the
Secretary of the Corporation, and that the signature set forth immediately above
is his genuine signature.
IN WITNESS WHEREOF, I have executed this Certificate on this _____ day
of _______________________, 2002.
-------------------------
Vice President
Secretary's Certificate
-----------------------
Exhibit A
---------
Certificate of Incorporation
Secretary's Certificate
-----------------------
Exhibit B
---------
Bylaws
Secretary's Certificate
-----------------------
Exhibit C
---------
Resolutions
Exhibit J
---------
SELLERS' CERTIFICATE
Reference is made to that certain Asset Purchase Agreement dated as of
______________ __, 2002 (the "Agreement") by and among Pitt-Des Moines, Inc., a
Pennsylvania corporation, (the "Company"), PDM Bridge Corp., a Delaware
corporation and wholly owned subsidiary of the Company ("PDM Florida"), and
Steel Bridges, LLC (the "Buyer").
I, ____________, hereby certify that I am the duly elected, qualified
and acting ___________________of the Company and the _____________ of PDM
Florida. In such capacities, I further certify in connection with the
transactions contemplated by the Agreement, as follows (capitalized terms used
but not otherwise defined herein have the meanings ascribed to them in the
Agreement):
1. Each Seller has performed and complied with all of its
obligations under the Agreement to be performed or complied
with under the Agreement in all material respects by it on or
prior to the Closing Date.
2. There has not been, nor is there a reasonable threat of the
occurrence of, a Material Adverse Effect.
IN WITNESS WHEREOF, I have executed this Seller's Certificate on this
_____ day of ______________________, 2002.
---------------------------------
[Name and Title]
Exhibit K
---------
STEEL BRIDGES, LLC
CERTIFICATE
OF
THE SECRETARY
Reference is made to that certain Asset Purchase Agreement dated as of
______________ __, 2002 (the "Agreement") among PDM Bridge Corp. (the
"Corporation"), Pitt-Des Moines, Inc. (together with the Corporation, the
"Sellers"), and Steel Bridges, LLC (the "Buyer").
I, __________________, hereby certify that I am the duly elected,
qualified and acting Secretary of the Buyer. I further certify that:
1. Attached hereto as Exhibit A is a true, complete and correct copy of
the Certificate of Organization of the Buyer as certified by the Secretary of
State of the State of Delaware, which is in full force and effect as of the date
hereof and has been in full force and effect at all times since January 22, 2002
(the "Certificate of Organization"); and
2. Attached hereto as Exhibit B is a true, complete and correct copy of
the Operating Agreement of the Buyer, which is in full force and effect as of
the date hereof and has been in full force and effect at all times since
___________________, 2002, and
3. The persons named below are, as of the date hereof and have been in
full force and effect since ________________, 2002, duly elected, qualified and
acting officers of the Buyer holding the offices below indicated and the
signature opposite the name of each such person is a genuine signature of such
person.
Name: Position: Signature:
----- --------- ----------
President
---------------------- ------------------------------
Vice President
---------------------- ------------------------------
Secretary
---------------------- ------------------------------
4. Attached hereto as Exhibit C are true, complete and correct copy of
Resolutions duly adopted by the Buyer's sole member and Board of Directors,
which approve the execution, delivery and performance of the Agreement and the
consummation of the transactions contemplated thereby. All of such Resolutions
are in full force and effect on and as of the date hereof and have been in full
force and effect since _______________, 2002, having not been in any way
amended, altered or repealed.
IN WITNESS WHEREOF, I have executed this Certificate on this _____ day
of _____________________, 2002.
--------------------------------
I, ______________, as _______________of the Corporation, do hereby
certify that _________________ was validly elected to the office of and is the
Secretary of the Corporation, and that the signature set forth immediately above
is his genuine signature.
IN WITNESS WHEREOF, I have executed this Certificate on this _____ day
of ___________________, 2002.
--------------------------------
Secretary's Certificate
-----------------------
Exhibit A
---------
Certificate of Organization
Secretary's Certificate
-----------------------
Exhibit B
---------
Operating Agreement
Secretary's Certificate
-----------------------
Exhibit C
---------
Resolutions
Exhibit L
---------
BUYER'S CERTIFICATE
Reference is made to that certain Asset Purchase Agreement dated as of
______________ __, 2002 (the "Agreement") by and among Pitt-Des Moines, Inc., a
Pennsylvania corporation, (the "Company"), PDM Bridge Corp., a Delaware
corporation and wholly owned subsidiary of the Company ("PDM Florida"), and
Steel Bridges, LLC (the "Buyer").
I, ____________________, hereby certify that I am the duly elected,
qualified and acting ____________________of the Buyer. In such capacities, I
further certify in connection with the transactions contemplated by the
Agreement, as follows (capitalized terms used but not otherwise defined herein
have the meanings ascribed to them in the Agreement):
1. The representations and warranties made by the Buyer in the Agreement
are true and correct in all material respects as of the date hereof
with the same effect as if made on the date hereof.
2. Buyer has performed and complied with all of its obligations under the
Agreement to be performed or complied with by it on or prior to the
Closing Date.
IN WITNESS WHEREOF, I have executed this Buyer's Certificate on this
_____ day of ___________, 2002.
-----------------------------
[insert name and title]
Exhibit M
---------
[Insert Closing Date]
Steel Bridges LLC
0000 Xxxxx Xxxxxx
Xxx Xxxxxx, XX 00000
Rabobank Nederland, New York Branch, as Agent
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Financial, Inc., as Agent
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Account Manager and Legal Services
RE: Asset Purchase Agreement (the "Agreement"), dated as of
February 1, 2002, by and among Steel Bridges LLC, a Delaware
limited liability company (the "Buyer"), Pitt-Des Moines,
Inc., a Pennsylvania corporation (the "Company"), and PDM
Bridge Corp., a Delaware corporation ("PDM Florida")
Ladies and Gentlemen:
We have acted as counsel to the Company and PDM Florida (together, the
"Sellers" and each individually a "Seller") in connection with Buyer's
acquisition (the "Acquisition") of the Business pursuant to the Agreement and in
connection with the transactions contemplated thereby. All capitalized terms
used and not otherwise defined in this opinion shall have the respective
meanings ascribed to them in the Agreement. This opinion is furnished to you
pursuant to Section 8.3 of the Agreement.
In so acting as counsel, we have examined originals, photocopies of
originals or certified copies of:
1. The Amended and Restated Articles of Incorporation and the
Amended and Restated Bylaws of the Company, as in effect on
the date hereof and at all times since May 7, 1999;
2. The Certificate of Incorporation and the Bylaws of PDM
Florida, as in effect on the date hereof and at all times
since May 7, 1999;
3. The Material Contracts (as defined below);
Steel Bridges LLC
Rabobank Nederland, New York Branch, as Agent
________, 2002
Page 2
4. The Agreement;
5. The Escrow Agreement (as defined in the Agreement);
6. The Merger Agreement (as defined in the Agreement);
7. Certain resolutions adopted by the Board of Directors of the
Company by written consent or at a one or more meetings held
on or prior to the date hereof; and
8. Certain resolutions adopted by the Board of Directors and sole
shareholder of PDM Florida by written consent or at a one or
more meetings held on or prior to the date hereof.
We have also reviewed such matters of law as we have considered
relevant for the purposes of this opinion. We have also examined to our
satisfaction such officers' certificates, with respect to the accuracy of
material factual matters contained therein and not independently established,
documents, records and statements of officers and other representatives of the
Sellers and made such inquiries of law as we have deemed appropriate or
necessary as the basis for the opinions set forth below. "Material Contracts"
means any contract to which either Seller is a party and which is listed as an
exhibit in the Company's annual report on Form 10-K for the fiscal year ended
December 31, 2000 filed with the Securities and Exchange Commission ("SEC") on
April 2, 2001, or in any other report or document filed with the SEC since
January 1, 2001.
In the examination of such documents, we have assumed the genuineness
of all signatures and the authenticity of all documents submitted to us as
originals and the conformity to the original documents of all documents
submitted to us as certified or photostatic copies, and we have relied upon the
aforesaid documents with respect to the accuracy of material factual matters
contained therein. As to any facts relevant to our opinion which were not
independently established, we have relied, with your consent, upon information
given to us by officers of the Sellers. We have made no independent examination
of factual matters set forth in the aforesaid documents or representations for
the purpose of rendering this opinion. We know of no facts, however, which lead
us to believe that such factual matters are untrue or inaccurate in any material
respect.
We have also assumed, without verification, for purposes of this
opinion, the due authorization, execution and delivery of the Agreement by the
Buyer and the Escrow Agreement by the Buyer, the Escrow Agent and the other
parties thereto and that each of such documents constitutes or will constitute
legal, valid and binding obligations of the Buyer, the Escrow Agent and the
other parties thereto enforceable against them in accordance with their
respective terms.
Steel Bridges LLC
Rabobank Nederland, New York Branch, as Agent
________, 2002
Page 3
Based upon and subject to the foregoing and the qualifications set
forth below, we are of the opinion that:
1. The Company is a corporation duly incorporated, validly existing and
in good standing under the laws of the Commonwealth of Pennsylvania. The Company
has all requisite corporate power to execute and deliver the Agreement, the
Merger Agreement and the Escrow Agreement and to consummate the transactions
contemplated thereby and to comply with their terms, conditions and provisions.
2. PDM Florida is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware. PDM Florida has all
requisite corporate power to execute and deliver the Agreement and the Escrow
Agreement and to consummate the transactions contemplated thereby and to comply
with their terms, conditions and provisions.
3. The execution and delivery of the Agreement, the consummation of the
transactions contemplated for the Sellers by the Agreement and the performance
by the Sellers of all of their respective obligations to be performed under the
Agreement has been authorized by all necessary corporate action.
4. The execution and delivery of the Escrow Agreement, the consummation
of the transactions contemplated for the Sellers by the Escrow Agreement and the
performance by the Sellers of all of their respective obligations to be
performed under the Escrow Agreement has been authorized by all necessary
corporate action.
5. The Agreement has been duly executed and delivered by each such
Seller, and is a legal, valid and binding obligation of each Seller, enforceable
against such Seller in accordance with its terms.
6. The Escrow Agreement has been duly executed and delivered by each
such Seller, and is a legal, valid and binding obligation of each Seller,
enforceable against such Seller in accordance with its terms.
7. The execution and delivery of the Agreement and the consummation of
the transactions contemplated thereby and compliance by the Sellers with their
respective obligations thereunder: (a) is not inconsistent with and does not
contravene the Amended and Restated Articles of Incorporation or the Amended and
Restated Bylaws of the Seller or the Certificate of Incorporation or Bylaws of
PDM Florida, (b) to our knowledge, does not violate any provision of any
statute, law, ordinance, rule regulation, judgment, decree, order, injunction,
writ, permit or license of any court or governmental authority applicable to
either Seller or any of their respective properties or assets, and (c) is not
inconsistent with and does not contravene the Merger Agreement or the Material
Contracts.
Steel Bridges LLC
Rabobank Nederland, New York Branch, as Agent
________, 2002
Page 4
8. The execution and delivery of the Escrow Agreement does not violate,
conflict with or result in a breach of any provision of, or constitute a default
(or an event which, with notice or lapse of time or both, would constitute a
default) under, or result in the termination of or accelerate the performance
required by, or result in a right of termination or acceleration under, or
result in the creation of any lien, security interest, charge or encumbrance
upon any of the properties or assets of either Seller under any of the terms,
conditions or provisions of: (a) the Amended and Restated Articles of
Incorporation or the Amended and Restated Bylaws of the Seller or the
Certificate of Incorporation or Bylaws of PDM Florida, (b) to our knowledge, any
statute, law, ordinance, rule, regulation, judgment, decree, order, injunction,
writ, permit or license of any court or governmental authority applicable to
either Seller or any of their respective properties or assets, or (c) the Merger
Agreement and, to our knowledge, any note, bond, mortgage, indenture, deed of
trust, license, franchise, permit, concession, contract, lease or other
instrument, obligation or agreement of any kind to which either Seller is a
party or by which either Seller or any of their respective properties or assets
may be bound or affected.
This opinion is limited to and covers only the laws of the Commonwealth
of Pennsylvania, the State of New York, the General Corporation Law of the State
of Delaware and the federal laws of the United States of America. In giving this
opinion, we are not passing on any matters of the laws of any jurisdiction other
than the federal laws of the United States of America, the General Corporation
Law of the State of Delaware and the laws of the Commonwealth of Pennsylvania
and the State of New York as they currently exist.
In addition to the qualifications set forth above, the foregoing
opinions are subject to the following qualifications:
(a) The enforceability of rights and remedies provided in the
Agreement and the Escrow Agreement is subject to and may be
limited by any applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyancing or similar
laws or equitable principles affecting generally the
enforcement of creditors' rights from time to time in effect;
(b) Our opinion as to the enforceability of the Agreement and the
Escrow Agreement is subject to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law) and assumes that the Buyer,
the Escrow Agent and the other parties thereto will act with
commercial reasonableness in exercising their rights and
remedies thereunder;
(c) We express no opinion on the validity, binding effect or
enforceability under certain circumstances of provisions of
the Agreement or the Escrow Agreement (i) which waive any
rights afforded to any party thereto under
Steel Bridges LLC
Rabobank Nederland, New York Branch, as Agent
________, 2002
Page 5
any statute or constitutional provision, (ii) which waive
broadly or vaguely stated rights or future rights, or waive
certain rights or defenses to obligations where such waivers
are against statutes, laws or public policy, (iii) that
provide that rights or remedies are not exclusive, that every
right or remedy is cumulative and may be exercised in addition
to or with any other right or remedy, or that the election of
some remedy or remedies does not preclude recourse to one or
more other remedies, (iv) that provide that injunctive relief
or specific performance may be available as a remedy for
breach, (v) that purport to prevent oral modification or
waivers or (vi) the breach of which a court concludes is not
material or does not adversely affect the Buyer;
(d) Insofar as the indemnity provisions of the Agreement or the
Escrow Agreement may encompass indemnification with respect to
violation of laws, enforcement thereof may be limited by
public policies underlying such laws;
(e) We express no opinion on the enforceability of any provisions
in the Agreement or the Escrow Agreement relating to conflicts
of law or choice of law;
(f) We express no opinion on the effect on the Agreement or the
Escrow Agreement or any of the opinions set forth above on any
documents which we have not reviewed;
(g) We express no opinion regarding matters relating to federal
government contracting requirements;
(h) We express no opinion on compliance with fiduciary duty
requirements;
(i) We express no opinion on federal and state tax laws and
regulations; and
(j) When used herein, the term "knowledge" shall mean, the actual
knowledge of the attorneys in our firm who have devoted
substantial time to our representation of the Sellers in
connection with the Acquisition.
Steel Bridges LLC
Rabobank Nederland, New York Branch, as Agent
________, 2002
Page 6
This opinion is issued as of the date hereof and is necessarily limited
to the laws now in effect and the facts and circumstances known to the
undersigned on the date hereof. We are not assuming any obligation to review or
update this opinion should applicable law or the existing facts or circumstances
change. Our advice is provided herein solely for your information and benefit
solely in connection with the transactions referred to in the first paragraph of
this letter. This opinion does not extend to and may not be quoted in whole or
in part or otherwise referred to or relied upon by the named addressees of this
opinion for any other purpose or by any other party other than the named
addressees of this opinion for any purpose without our express written consent.
Very truly yours,
XXXXXXXX XXXXXXXXX
PROFESSIONAL CORPORATION
By:
--------------------------------
EXHIBIT N
---------
[Insert Closing Date]
Pitt-Des Moines, Inc.
Town Center One, Suite 500
0000 Xxxx Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Rabobank Nederland, New York Branch
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Financial, Inc., as Agent
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Account Manager and Legal Services
RE: Asset Purchase Agreement (the "Agreement"), dated as of
January ___, 2002, by and among ______________________________
(the "Buyer"), Pitt-Des Moines, Inc., a Pennsylvania
corporation (the "Company"), and PDM Bridge Corp., a Delaware
corporation ("PDM Florida")
Ladies and Gentlemen:
We have acted as counsel to the Buyer in connection with Buyer's
acquisition (the "Acquisition") of the Business pursuant to the Agreement and in
connection with the transactions contemplated thereby. All capitalized terms
used and not otherwise defined in this opinion shall have the respective
meanings ascribed to them in the Agreement. This opinion is furnished to you
pursuant to Section 9.4 of the Agreement.
In so acting as counsel, we have examined originals, photocopies of
originals or certified copies of:
1. The Organization Documents as in effect on the date hereof and
at all times since ________;
2. The Agreement;
Pitt-Des Moines, Inc.
Rabobank Nederland, New York Branch
___________, 2002
Page 2
3. The Escrow Agreement; and
4. Certain resolutions adopted by the Board of Directors of the
Buyer on or prior to the date hereof.
We have also reviewed such matters of law as we have considered
relevant for the purposes of this opinion. We have also examined to our
satisfaction such officers' certificates, with respect to the accuracy of
material factual matters contained therein and not independently established,
documents, records and statements of officers and other representatives of the
Buyer and made such inquiries of law as we have deemed appropriate or necessary
as the basis for the opinions set forth below.
In the examination of such documents, we have assumed the genuineness
of all signatures and the authenticity of all documents submitted to us as
originals and the conformity to the original documents of all documents
submitted to us as certified or photostatic copies, and we have relied upon the
aforesaid documents with respect to the accuracy of material factual matters
contained therein. As to any facts relevant to our opinion which were not
independently established, we have relied, with your consent, upon information
given to us by officers of the Buyer. We have made no independent examination of
factual matters set forth in the aforesaid documents or representations for the
purpose of rendering this opinion. We know of no facts, however, which lead us
to believe that such factual matters are untrue or inaccurate in any material
respect.
For purposes of this opinion, we have also assumed, without
verification the due authorization, execution and delivery of the Agreement by
the Sellers and of the Escrow Agreement by each of the Sellers and the Escrow
Agent and that each of such agreements constitutes or will constitute legal,
valid and binding obligations of the Seller and the Escrow Agent enforceable
against them in accordance with their respective terms.
Based upon and subject to the foregoing and the qualifications set
forth below, we are of the opinion that:
1. The Buyer is a [_________________] duly incorporated, validly
existing and in good standing under the laws of the State of Delaware. The Buyer
has all requisite corporate power to execute and deliver the Agreement and the
Escrow Agreement and to consummate the transactions contemplated thereby and to
comply with their terms, conditions and provisions.
2. The execution and delivery of the Agreement, the consummation of the
transactions described therein for the Buyer and the performance by the Buyer of
all of its
Pitt-Des Moines, Inc.
Rabobank Nederland, New York Branch
___________, 2002
Page 3
obligations to be performed under the Agreement have been authorized
by all necessary corporate action.
3. The execution and delivery of the Escrow Agreement, the consummation
of the transactions described therein for the Buyer and the performance by the
Buyer of all of its obligations to be performed under the Escrow Agreement have
been authorized by all necessary corporate action.
4. The Agreement has been duly executed and delivered by the Buyer, and
is a legal, valid and binding obligation of the Buyer, enforceable against the
Buyer in accordance with its terms.
5. The Escrow Agreement has been duly executed and delivered by the
Buyer, and is a legal, valid and binding obligation of the Buyer, enforceable
against the Buyer in accordance with its terms.
6. The execution and delivery of the Agreement and the consummation of
the transactions described therein and compliance by the Buyer with its
obligations thereunder: (a) to our knowledge, do not violate any provision of
statutory laws or regulations applicable to the Buyer, (b) are not inconsistent
with and do not contravene the [organization documents] of the Buyer.
7. The execution and delivery of the Escrow Agreement does not violate,
conflict with or result in a breach of any provision of, or constitute a default
(or an event which, with notice or lapse of time or both, would constitute a
default) under, or result in the termination of or accelerate the performance
required by, or result in a right of termination or acceleration under, or
result in the creation of any lien, security interest, charge or encumbrance
upon any of the properties or assets of the Buyer under any of the terms,
conditions or provisions of: (a) the [organization documents] of the Buyer, (b)
to our knowledge, any statute, law, ordinance, rule, regulation, judgment,
decree, order, injunction, writ, permit or license of any court or governmental
authority applicable to the Buyer or any of its properties or assets, or (c) to
our knowledge, any note, bond, mortgage, indenture, deed of trust, license,
franchise, permit, concession, contract, lease or other instrument, obligations
or agreement of any kind to which the Buyer is a party or by which the Buyer or
any of its properties or assets may be bound or affected.
This opinion is limited to and covers only the General Corporation Law
of the State of Delaware, the federal laws of the United States of America and
the laws of the State of Ohio. In giving this opinion, we are not passing on any
matters of the laws of any jurisdiction other than the federal laws of the
United States of America, the General Corporation Law of the State of Delaware
and the laws of the State of Ohio as they currently exist. We note that the
Pitt-Des Moines, Inc.
Rabobank Nederland, New York Branch
___________, 2002
Page 4
Agreement provides that it is governed by the laws of the [Commonwealth of
Pennsylvania] and the Escrow Agreement provides that it is governed by the laws
of the State of New York. Solely for the purpose of rendering this opinion, we
have assumed, with your permission, that the Agreement and the Escrow Agreement
are to be governed by, and construed in accordance with, the substantive laws of
the State of Ohio without giving effect to the conflict of laws principles
thereof.
In addition to the assumptions and qualifications set forth above, the
foregoing opinions are subject to the following qualifications:
(a) The enforceability of rights and remedies provided in the
Agreement and the Escrow Agreement is subject to and may be
limited by any applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or similar laws
or equitable principles affecting generally the enforcement of
creditors' rights from time to time in effect;
(b) Our opinion as to the enforceability of the Agreement and the
Escrow Agreement is subject to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law) and assumes that the Buyer and
the Escrow Agent will act with commercial reasonableness in
exercising their rights and remedies thereunder;
(c) We express no opinion on the validity, binding effect or
enforceability under certain circumstances of provisions of
the Agreement or the Escrow Agreement (i) which waive any
rights afforded to any party thereto under any statute or
constitutional provision, (ii) which waive broadly or vaguely
stated rights or future rights, or waive certain rights or
defenses to obligations where such waivers are against
statutes, laws or public policy, (iii) that provide that
rights or remedies are not exclusive, that every right or
remedy is cumulative and may be exercised in addition to or
with any other right or remedy, or that the election of some
remedy or remedies does not preclude recourse to one or more
other remedies, (iv) that provide that injunctive relief or
specific performance may be available as a remedy for breach,
(v) that purport to prevent oral modification or waivers, (vi)
the breach of which a court concludes is not material or does
not adversely affect the Buyer or (vii) that require payment
or reimbursement of attorneys' fees;
(d) Insofar as the indemnity provisions of the Agreement or the
Escrow Agreement may encompass indemnification with respect to
violation of
Pitt-Des Moines, Inc.
Rabobank Nederland, New York Branch
___________, 2002
Page 5
laws, enforcement thereof may be limited by public policies
underlying such laws;
(e) We express no opinion on the enforceability of any provisions
in the Agreement or the Escrow Agreement relating to conflicts
of law or choice of law;
(f) We express no opinion on the effect on the Agreement or the
Escrow Agreement or any of the opinions set forth above of any
documents which we have not reviewed;
(g) We express no opinion regarding matters relating to federal
government contracting requirements;
(h) We express no opinion on compliance with fiduciary duty
requirements;
(i) We express no opinion on federal, state, local or foreign tax
laws or regulations; and
(j) When used herein, the term "knowledge" shall mean, the actual
knowledge of the attorneys in our firm who have devoted
substantial time to our representation of the Buyer in
connection with the Acquisition.
Pitt-Des Moines, Inc.
Rabobank Nederland, New York Branch
___________, 2002
Page 6
This letter, and the legal opinions herein, are intended for the
information solely of the addressee hereof and solely for the purposes of the
transactions contemplated by the Agreement and are not to be relied upon by any
other person or entity, or for any other purpose, or quoted in whole or in part,
or otherwise referred to, in any documents, or to be filed with any governmental
or other administrative agency or other person or entity for any purpose without
the prior written consent of this firm.
We bring to your attention the fact that our legal opinions are an
expression of professional judgment and are not a guarantee or a result.
We do not undertake to advise you of matters which may come to our
attention subsequent to the date hereof which may affect our legal opinions
expressed herein.
Very truly yours,
XXXXX & XXXXXX LLP
Exhibit O
---------
ASSIGNMENT OF MEMBERSHIP INTEREST
---------------------------------
Pursuant to the terms and provisions of the Asset Purchase Agreement
dated ______________ _____, 2002 (as amended, restated, supplemented or
otherwise modified, the "Agreement"), among STEEL BRIDGES, LLC, a Delaware
limited liability company ("Buyer"), PITT-DES MOINES, INC., a Pennsylvania
corporation (the "Company") and PDM BRIDGE, CORP., a Florida corporation, the
Company does hereby convey, transfer, assign, set over and deliver unto Buyer
all right, title and interest in and to the Company's membership interest (the
"Membership Interest") in Chippewa Valley Track, LLC, a Wisconsin limited
liability company ("Chippewa"), together with any and all rights, privileges,
benefits, obligations and liabilities appertaining thereto, including, but not
limited to, all of the Company's right, title and interest as a member of
Chippewa in and to the profits, surplus, losses, capital, cash flow, rentals,
contract rights, cash, accounts, receivables, escrows, claims, choses in action
and other assets of Chippewa.
Buyer hereby (i) takes and accepts the foregoing assignment, (ii)
assumes and agrees to observe, perform, pay, conform to, comply with and
discharge all of the obligations of the Company, in its capacity as a member of
Chippewa, and (iii) agrees to be a member of the Company for all purposes, all
from and after the date of this Assignment, but not before, in the place and
stead of the Company.
Each and all of the warranties of the Company as to the Company's title
to the Membership Interest, or the status or condition of Chippewa and the
Membership Interest, are as set forth in the Agreement and the same are hereby
reaffirmed and restated in their entirety as of the date hereof.
The parties hereto agree that they shall cooperate with each other and
shall make, execute, acknowledge, deliver, record and file, or cause to be made,
executed, acknowledged, delivered, recorded and filed, at such times and places
as the other may reasonably deem necessary, all other and further documents and
instruments, and will take all other and further actions, as the other may
reasonably request from time to time in order to (a) create, perfect, preserve
and/or confirm the interest in and title to the Membership Interest and (b)
otherwise effectuate the purposes and provisions of this Assignment.
This Assignment shall be governed by, and shall be construed and
enforced in accordance with, the laws of the State of Wisconsin, and shall be
binding upon, and shall inure to the benefit of, the parties hereto and their
respective heirs, legal representatives, successors and assigns.
This Assignment may be executed by the parties hereto manually or by
facsimile signature in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts together constitute
one and the same instrument. Each counterpart may consist of a number of copies
hereof each signed by less than all, but together signed by all of the parties
hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment as
of February _____, 2002.
"Buyer" "Company"
STEEL BRIDGES, LLC PITT-DES MOINES, INC.
By: By:
---------------------------------- -----------------------------------
Name: Name:
-------------------------------- ---------------------------------
Title: Title:
------------------------------- --------------------------------
Exhibit P
---------
WRITTEN CONSENT OF THE
SOLE SHAREHOLDER
OF
PITT-DES MOINES, INC.
The undersigned, being the Sole Shareholder of Pitt-Des Moines, Inc., a
Pennsylvania corporation (the "Corporation"), acting pursuant to Section 1766(b)
of the Pennsylvania Business Corporation Law of 1988, as amended, authorizing
actions to be taken upon written consent in lieu of a meeting, hereby consents
by this writing to the adoption of, and does hereby adopt the following
resolutions as though adopted at a duly called and held meeting of the
Shareholders:
WHEREAS, Articles of Merger providing for the merger of PDM
Acquisition Corp. with and into the Corporation have been filed with
the Department of State of the Commonwealth of Pennsylvania;
NOW THEREFORE BE IT RESOLVED, that the transactions
contemplated by that certain Asset Purchase Agreement dated as of
_______________, 2002 by and among the Corporation, PDM Bridge Corp., a
Delaware corporation, and Steel Bridges, LLC, a Delaware limited
liability company (the "Asset Purchase Agreement"), a copy of which is
attached hereto as EXHIBIT A, and that the form, terms and provisions
of the Asset Purchase Agreement providing for the sale of the
Corporation's Bridge Division, be, and the same hereby are, consented
to, approved and ratified in all respects; and it is further
RESOLVED, that any and all actions taken by the Corporation
with respect to the negotiation of the foregoing agreement and the
transactions contemplated therein are hereby approved, ratified and
confirmed in all respects.
IN WITNESS WHEREOF, the undersigned has executed this Written Consent
of the Sole Shareholder as of the ___ day of ________________, 2002.
IRONBRIDGE HOLDING LLC
By: Ironbridge Holding Corp., as Manager
By:
-----------------------------------
Name: Xxxxx Xxxxx
Title: President
2
EXHIBIT A
---------
ASSET PURCHASE AGREEMENT
(See Exhibit (d)(3) to the Schedule TO)
Exhibit Q
---------
JOINT UNANIMOUS WRITTEN CONSENT
OF
THE SOLE STOCKHOLDER
AND
THE BOARD OF DIRECTORS
OF
PDM BRIDGE CORP.
The undersigned, being the sole stockholder and all of the directors of
PDM Bridge Corp., a Delaware corporation (the "Company"), acting pursuant to
Sections 141 and 228 of the General Corporation Law of the State of Delaware, as
amended, hereby waive any notice requirement and consent to the adoption of the
following resolutions as though adopted at duly noticed and called meetings of
the stockholders and the board of directors of the Company (the "Board of
Directors").
RESOLVED, that the Company sell substantially all of its assets to
Kirtland Capital Partners or one of its affiliates ("Kirtland") in connection
with the sale by Pitt-Des Moines, Inc., the sole stockholder of the Company
("PDM"), of all of the operating assets constituting PDM's Bridge Division to
Kirtland (the "Sale"); and
RESOLVED FURTHER, the Company is hereby authorized to enter into an
asset purchase agreement (the "Agreement") with respect to the Sale, as well as
any other documents, agreements, instruments and certificates in connection with
the Sale and the other transactions contemplated by the Agreement; and
RESOLVED FURTHER, that X.X. XxXxx and X.X. Xxxxx (the "Authorized
Officers") be, and each of them hereby is, authorized, empowered and directed to
execute, in the name and on behalf of the Company, the Agreement and all
documents related thereto which the Authorized Officers deem to be necessary,
convenient or appropriate to effect the Sale and the transactions provided for
in the Agreement, in the name of and on behalf of the Company, with such changes
and additions thereto as the Authorized Officer executing the same shall
approve, such approval to be conclusively evidenced by such execution thereof;
and
RESOLVED FURTHER, that the Authorized Officers are authorized to grant
any waiver, consent or extension of time to Kirtland in connection and in
accordance with the Agreement, and to approve and execute any amendment to the
Agreement, except for amendments with respect to the consideration to be paid to
the Company in the Sale, which they from time to time deem necessary, convenient
or appropriate; and
RESOLVED FURTHER, that the Agreement and the transactions contemplated
thereby may be terminated by the Authorized Officers at any time prior to the
consummation of the sale if, in the sole discretion of such officer, such action
shall be determined to be necessary or appropriate; and
RESOLVED FURTHER, that the Board of Directors finds it advisable and in
the best interests of the Company that, in order to facilitate the foregoing
resolutions, the Authorized Officers be, and each of them hereby is, authorized,
empowered and directed in the name and on behalf of the Company to prepare or
cause to be prepared and to execute and, where required,
cause to be filed with the appropriate party any and all agreements, documents,
instruments, deeds, letters, amendments, supplements to any existing agreements
or arrangements regarding the Company or as may otherwise be necessary or
advisable, in such forms as the Authorized Officers executing or directing the
filing of the same shall approve, as conclusively evidenced by his execution or
the filing thereof; and
RESOLVED FURTHER, that the Authorized Officers be, and each of them
hereby is, authorized, empowered and directed, in the name and on behalf of the
Company, to prepare, execute and deliver, or cause to be prepared, executed and
delivered, where necessary or appropriate to fully carry out the intent of the
Agreement and the transactions contemplated thereby, such amendments to the
Agreement and the other agreements referenced in these resolutions in such form
and on such terms as the Authorized Officers executing the same shall approve,
the signature of such Authorized Officers thereon to be conclusive evidence of
the approval of such amendments; and
RESOLVED FURTHER, that all actions heretofore taken by the Authorized
Officers in connection with any matter referred to or contemplated by any of the
foregoing resolutions be, and each of them hereby is, approved, ratified and
confirmed in all respects.
The remainder of this page is intentionally left blank. The signature
page follows.
2
IN WITNESS WHEREOF, the undersigned directors and sole stockholder of
PDM Bridge Corp. have executed this joint unanimous written consent as of
January 30, 2002.
STOCKHOLDER
PITT-DES MOINES, INC.
By:
-----------------------------------------------
X.X. Xxxxx, Vice President, Finance
DIRECTORS
----------------------------------------------
X.X. XxXxx
----------------------------------------------
X.X. Xxxxx
----------------------------------------------
J.R. Xxxxxxxxxx
