Exhibit 10.49
AMENDMENT AND SETTLEMENT AGREEMENT
This Amendment and Settlement Agreement (this "Amendment") with respect to
that certain Asset Purchase Agreement (the "Purchase Agreement") dated November
30, 2005 by and between MedSolutions, Inc., a Texas corporation (the "Company"),
and Positive Impact Waste Solutions, LLC, a Delaware limited liability company
("PIWS," and collectively with the Company, the "Parties," and each individually
a "Party"), is entered into by the Company and PIWS on June 30, 2006. All
capitalized terms used but not defined herein shall have the respective meanings
assigned to them by the Purchase Agreement.
WHEREAS, the Parties agree that it would be in each of their best interests
to amend Section 5.07 of the Purchase Agreement, in accordance with Section 9.10
thereof, relating to certain of PIWS' service and upgrade obligations with
respect to the Purchased Units;
WHEREAS, PIWS was required to assign and deliver certain customer contracts
pursuant to Section 5.09 of the Purchase Agreement; and
WHEREAS, the Parties desire to settle certain disputes relating to
adjustments to the Purchase Price pursuant to Section 5.09 of the Purchase
Agreement.
NOW, THEREFORE, in consideration of the mutual provisions of this
Amendment, and other legal consideration, the receipt and sufficiency of which
the Parties hereby acknowledge, the Parties hereby agree as follows:
1. Amendment to Section 5.07 of the Purchase Agreement. Section 5.07 of the
Purchase Agreement is hereby amended by deleting the entire text thereof and by
substituting in its place the following language:
Units and Equipment. The Seller hereby grants the Buyer a full 90-day
warranty from the Closing Date for all non-consumable equipment and parts
contained within the Purchased Units with serial numbers 4, 5, 6 and 7. The
Seller further agrees to service and upgrade the Purchased Units, at no
charge to the Buyer except as otherwise set forth on Schedule 5.07, in
accordance with the schedule set forth on Schedule 5.07 attached to this
Amendment. The Seller shall upgrade, at no charge to the Buyer, the
Purchased Units with serial numbers 4, 5 and 6 with breakaway assemblies,
and the Purchased Units with serial numbers 5 and 6 with floor mounted
hoppers. The Seller shall provide the Buyer, at no charge to the Buyer,
with the first set of replacement teeth (both shaft and tube) for any of
the Purchased Units with teeth that were installed before October 1, 2005.
All service and upgrades set forth in this Section 5.07 and on Schedule
5.07 will be completed by PIWS no later than September 30, 2006 assuming
such units are made available by the Buyer when requested by PIWS;
provided, however, that PIWS shall give the Buyer at least seven days'
prior written notice of the date on which it desires to perform any such
service and upgrades; provided further, however, that in the event that
PIWS is required to replace rather than repair the pre-grind tubes for the
Purchased Units with serial numbers 4 and 5, the Buyer shall grant PIWS a
reasonable period of time beyond September 30, 2006 to perform such
services.
2. Agreement Regarding Assignment of Customer Contracts. Each of the
Company and PIWS hereby agree that the Company shall, effective immediately,
deduct an aggregate amount of $195,000.00 from the Purchase Price pursuant to
Section 5.09 of the Purchase Agreement as follows: $65,000.00 of such amount
shall be deducted from the principal amount of the $300,000 Note; $65,000.00 of
such amount shall be deducted from the principal amount of the $550,000 Note;
and $65,000.00 of such amount shall be deducted from the Shares by redemption
and cancellation of 52,000 Shares at the Share Value for no consideration. Each
of the Company and PIWS hereby agree that PIWS shall have no further obligations
or liabilities pursuant to Section 5.09 of the Purchase Agreement except as set
forth in the immediately preceding sentence. Any amounts which the Company has
previously taken as deductions against the Purchase Price that are not in
compliance with the final deduction noted above shall be immediately adjusted.
Any excess funds owed related to these previously taken deductions will be paid
upon execution of this agreement.
3. No Further Amendments. All other representations, warranties, covenants,
terms, and conditions of the Purchase Agreement shall remain in full force and
effect.
4. No Other Non-Compliance. The Company and PIWS agree that, except for the
items set forth in 1. and 2. above, to the actual knowledge of the Company,
there are no other areas of non-compliance with the terms of the Purchase
Agreement; provided, however that the Company makes no such agreement with
respect to the representations and warranties set forth in Section 3.17(b)
regarding the ability of the Purchased Units to process not less than 1,500
pounds of waste per hour, which ability the Company hereby reserves the right to
continue to evaluate. Except as set forth in the immediately preceding sentence,
the Company and PIWS agree that compliance with this Amendment cures any alleged
non-compliance with the original Purchase Agreement dated November 30, 2005.
IN WITNESS WHEREOF, the Parties have executed this Amendment to be
effective as of the date first written above.
THE COMPANY:
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MEDSOLUTIONS, INC.
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxx, President & CEO
PIWS:
----
POSITIVE IMPACT WASTE SOLUTIONS, LLC
/s/ Xxx Xxxxxxx
------------------------------------
Xxx Xxxxxxx, President
Schedule 5.07
Service and Upgrade Obligations
Unit #4
Repair floor
Fix Pre-Grind Tube
Inspect Hydralic Lines
Replace Teeth
Replace 2 side doors
Remove back door
Install Breakaway Hub Assembly
Blown left seal
Xxxxxx door repair
Xxxxxx seal J box replacement
Radiation detector inspection and repair
Auger top plate repair
Repair loose sides on trailer
Repair crack on xxxxxx
Paint interior
Repair exterior damage and replace damaged parts and exterior panels
Remove exterior decals and clean
Install new decals at MedSolutions' expense (artwork to be provided by
MedSolutions)
Replace pre-grind tubes (repair only if approved by MedSolutions)
Unit #5
Floor inspection
Repair crack on xxxxxx
Install Breakaway Hub Assembly
Install Floor-mounted Cold-Ster Xxxxxx
Inspect trailer
Radiation detector inspection and repair
Paint interior
Repair exterior damage and replace damaged parts and exterior panels
Remove exterior decals and clean Install new decals at MedSolutions'
expense (artwork to be provided by MedSolutions)
Replace pre-grind tubes (repair only if approved by MedSolutions)
Unit #6
Teeth replacement
Install Breakaway Hub Assembly
Install Floor-mounted Cold-Ster Xxxxxx
Radiation detector inspection and repair
Inspect trailer
Paint interior
Repair exterior damage and replace damaged parts and exterior panels
Remove exterior decals and clean Install new decals at MedSolutions'
expense (artwork to be provided by MedSolutions)
Replace flighting
Unit #7
Radiation detector inspection and repair
Short in control box repair
Repair exterior damage and replace damaged parts and exterior panels
Remove exterior decals and clean Install new decals at MedSolutions'
expense (artwork to be provided by MedSolutions)
