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EXHIBIT 10.13
MANAGEMENT AGREEMENT
THIS AGREEMENT, entered into the 31st day of March, 2000 between Liberty Waste,
Inc., a Florida corporation ("Liberty") and EarthCare Company, a Delaware
corporation ("EarthCare").
In consideration of the following mutual covenants, the parties agree
as follows:
1. RECITATIONS. Liberty and EarthCare desire to enter into an
agreement for EarthCare to furnish various management services
in exchange for a management fee. EarthCare has hired
executive personnel and invested in data processing assets in
anticipation of entering into this Agreement. EarthCare has
familiarized itself with the business of Liberty and has
consulted with various professionals and investment bankers
regarding the business of Liberty.
2. MANAGEMENT SERVICES. During the term of this Agreement,
EarthCare shall provide the following services for Liberty:
(a) Accounting services;
(b) Investment banking advisory services;
(c) Information and data processing services;
(d) Bid and bond advice;
(e) Municipal contract assistance; and
(f) Commercial banking services.
3. MANAGEMENT FEES. In exchange for the management services to be
furnished hereunder, Liberty shall pay EarthCare management
fees as follows:
(a) $500,000 upon the execution of this Agreement; and
(b) $75,000 per month, commencing April 15, 2000, for the
term of this Agreement.
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4. TERM. This Agreement shall be for a term commencing March 31,
2000 and ending on March 31, 2001, and shall be renewed
automatically for additional one - year terms unless
terminated by either party by giving not less than 60 days
written notice prior to the end of a term to the other party.
5. REPRESENTATIONS AND WARRANTIES OF LIBERTY.
(a) Liberty is a corporation duly organized and legally
existing in good standing under the laws of the State
of Florida, and has all the requisite corporate power
and authority to carry on its business as now
conducted.
(b) The execution, delivery and performance of this
Agreement by Liberty has been duly approved by its
Board of Directors, and no further corporate action
is necessary on the part of Liberty to consummate the
transactions contemplated by this Agreement, assuming
due execution of this Agreement by the Parties.
(c) Liberty maintains in effect insurance covering its
assets and businesses and any liabilities relating
thereto in an amount believed adequate by Liberty,
and such insurance coverage shall be maintained by
Liberty.
(d) Liberty possesses all licenses and other required
governmental or official approvals, permits or
authorizations, if any, the failure to possess which
would have a material adverse effect on the business,
financial condition or results of operations of
Liberty including, without limitation, all common
carrier rights, certificates of public need, waste
material transportation permits, trademarks and trade
names necessary to carry on its business as now being
conducted, without known conflict with valid
licenses, permits, trademarks and trade names of
others. All such licenses and permits are in full
force and effect, and no violations are or have been
recorded in respect to any thereof, and no proceeding
is pending, or to the knowledge of Liberty
threatened, to revoke, suspend or otherwise limit
such licenses or permits. All licenses and permits
will survive the closing of the transactions
contemplated by this Agreement.
(e) No agent, broker, finder, representative or other
person or entity acting pursuant to authority of
Liberty will be entitled to any commission or
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finder's fee in connection with the origination,
negotiation, execution or performance of the
transactions contemplated under this Agreement.
(f) This Agreement and all other agreements of Liberty
contemplated hereunder constitute valid and binding
obligations of Liberty, enforceable in accordance
with their respective terms. Neither the execution
and delivery of this Agreement (or any agreement
contemplated hereunder) nor the consummation of the
transactions contemplated hereby will: (i) conflict
with or violate any provision of the Articles of
Incorporation or By-Laws of Liberty; (ii) conflict
with or violate any decree, writ, injunction or order
of any court or administrative or other governmental
body which is applicable to, binding upon or
enforceable against Liberty; or (iii) result in any
breach of or default (or give rise to any right of
termination, cancellation or acceleration) under any
mortgage, contract, agreement, indenture, will, trust
or other instrument which is either binding upon or
enforceable against Liberty or its assets.
(g) Liberty has the full power, right and authority to
enter into and perform this Agreement without the
consent of any person, entity, or governmental
agency, and the consummation of the transactions
contemplated by this Agreement will not result in the
breach or termination of any provision of or
constitute a default under any lease, indenture,
mortgage, deed of trust or other agreement or
instrument or any order, decree, statute or
restriction to which Liberty is a party or by which
Liberty is bound or to which the outstanding shares
of stock of Liberty or any of the properties of
Liberty is subject.
(h) No representation, statement or information made or
furnished by Liberty to EarthCare, including those
contained in this Agreement and the other information
and statements referred to herein, contains or shall
contain any untrue statement of any material fact.
6. REPRESENTATIONS AND WARRANTIES OF EARTHCARE.
(a) EarthCare is a corporation duly organized, validly
existing and in good standing under the laws of the
State of Delaware and has all the requisite corporate
power and authority to carry on its business as now
conducted and to consummate the transactions
contemplated by this
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Agreement.
(b) The execution, delivery and performance of this
Agreement by EarthCare has been duly approved by its
Board of Directors, and no further corporate action
is necessary on the part of EarthCare to consummate
the transactions contemplated by this Agreement,
assuming due execution of this Agreement by the
Parties.
(c) No agent, broker, finder, representative or other
person or entity acting pursuant to the authority of
EarthCare will be entitled to any commission or
finder's fee in connection with the origination,
negotiation, execution or performance of the
transactions contemplated under this Agreement.
(d) This Agreement and all other agreements of EarthCare
contemplated hereunder constitute valid and binding
obligations of EarthCare, enforceable in accordance
with their respective terms. Neither the execution
and delivery of this Agreement (or any agreement
contemplated hereunder) nor the consummation of the
transactions contemplated hereby will: (i) conflict
with or violate any provision of the Articles of
Incorporation or By-Laws of EarthCare; (ii) conflict
with or violate any decree, writ, injunction or order
of any court or administrative or other governmental
body which is applicable to, binding upon or
enforceable against EarthCare; or (iii) result in any
breach of or default (or give rise to any right of
termination, cancellation or acceleration) under any
mortgage, contract, agreement, indenture, will, trust
or other instrument which is either binding upon or
enforceable against EarthCare or its assets.
(e) EarthCare has the full power, right and authority to
enter into and perform this Agreement without the
consent of any person, entity, or governmental
agency, and the consummation of the transactions
contemplated by this Agreement will not result in the
breach or termination of any provision of or
constitute a default under any lease, indenture,
mortgage, deed of trust or other agreement or
instrument or any order, decree, statute or
restriction to which EarthCare is a party or by which
EarthCare is bound or to which the outstanding shares
of stock of EarthCare or any of the properties of
EarthCare is subject.
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(f) No representation, statement or information made or
furnished by EarthCare to Liberty in this Agreement,
or in connection with the transactions contemplated
hereby contains, or shall contain any untrue
statement of any material fact or omits or shall omit
any material fact necessary to make the information
contained herein true.
7. MATERIAL CONTRACTS, ETC. In anticipation of the acquisition by
EarthCare of a significant minority interest in Liberty,
Liberty shall not, without the written consent of EarthCare,
issue or enter into any subscriptions, options, agreements or
other commitments in respect of the issuance, transfer, sale
or encumbrance of any shares of Liberty common stock, or enter
into any material transactions outside the ordinary course of
business.
8. INDEMNIFICATION BY LIBERTY.
(a) Liberty shall indemnify and hold EarthCare harmless
from and against any and all damages, loss, cost,
deficiency, assessment, liability or other expense
(including reasonable attorney's fees, costs of court
and costs of litigation, if any) suffered, incurred
or paid by EarthCare as a result of:
(i) The untruth, inaccuracy, breach or violation
of any representation, warranty covenant or
other obligation of Liberty set forth in or
made in connection with this Agreement.
(ii) The assertion against EarthCare of any
liabilities or obligations of Liberty or any
claim relating to the operations of
Liberty's business; or
(iii) The enforcement of EarthCare's right to
indemnification under this Agreement.
(b) EarthCare shall give written notice to Liberty of any
claim, action, suit or proceeding relating to the
indemnity herein provided by Liberty not later than
ten (10) days after EarthCare has received notice
thereof. Liberty shall have the right, at its option,
to compromise or defend, at its own expense and by
its own counsel (which counsel shall be reasonably
satisfactory to EarthCare), any such action, suit or
proceeding. EarthCare and Liberty agree to cooperate
in any such
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defense or settlement and to give each other full
access to all information relevant thereto.
(c) Except as herein expressly provided, the remedies
provided in Paragraph 8 hereof shall be cumulative
and shall not preclude assertion by EarthCare or the
seeking of any other remedies available against
Liberty at law or in equity.
(d) The indemnification shall not extend to damages or
costs caused by the willful or wrongful acts of
EarthCare, including, without limitation, violations
of federal, state or local laws.
9. INDEMNIFICATION BY EARTHCARE
(a) EarthCare shall indemnify and hold Liberty harmless
from and against any and all damages, loss, cost,
deficiency, assessment, liability or other expense
(including reasonable attorney's fees, costs of court
and costs of litigation, if any) suffered, incurred
or paid by Liberty as a result of:
(i) The untruth, inaccuracy, breach or violation
of any representation, warranty, covenant or
other obligation of EarthCare set forth in
or made in connection with this Agreement.
(ii) The assertion against Liberty of any
liabilities or obligations of EarthCare or
any claim relating to the operations of
EarthCare's business; or
(iii) The enforcement of Liberty's right to
indemnification under this Agreement.
(b) Liberty shall give written notice to EarthCare of any
claim, action, suit or proceeding relating to the
indemnity herein provided by EarthCare not later than
ten (10) days after Liberty has received notice
thereof. EarthCare shall have the right, at its
option, to compromise or defend, at its own expense
and by its own counsel (which counsel shall be
reasonably satisfactory to Liberty), any such action,
suit or proceeding. EarthCare and Liberty agree to
cooperate in any such defense or
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settlement and to give each other full access to all
information relevant thereto.
(c) Except as herein expressly provided, the remedies
provided in Paragraph 9 hereof shall be cumulative
and shall not preclude assertion by Liberty or the
seeking of any other remedies available against
EarthCare at law or in equity.
(d) The indemnification shall not extend to damages or
costs caused by the willful or wrongful acts of
Liberty, including, without limitation, violations of
federal, state or local laws.
10. WAIVER OR EXTENSION OF CONDITIONS. Liberty or EarthCare may
extend the time for or waive the performance of any of the
obligations of the other party, waive any inaccuracies in the
representations or warranties by the other party, or waive
compliance by the other party with any of the covenants or
conditions contained in this Agreement. Any such extension or
waiver shall be in writing and signed by the Liberty and
EarthCare. Any such extension or waiver shall not act as a
waiver or an extension of any other provisions of this
Agreement.
11. NOTICES. Any notice, request or other document shall be in
writing and sent by registered or certified mail, return
receipt requested, postage prepaid and addressed to the party
to be notified at the following addresses, or such other
address as such party may hereafter designate by written
notice to all parties, which notice shall be effective as of
the date of posting:
(a) If to EarthCare:
EarthCare Company
00000 Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Copy to:
Xxxxxx X. Xxxx, Esq.
00000 Xxxx Xxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000-0000
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(b) If to Liberty
Copy to:
12. GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Texas.
13. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their
respective heirs, representatives, successors and assigns.
14. HEADINGS. The subject headings of the Sections of this
Agreement are included for purposes of convenience only and
shall not affect the constructions or interpretation of any of
its provisions.
15. COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an
original and all of which together shall constitute but one
and the same instrument.
16. ARBITRATION. Any controversy or claim arising out of, in
connection with, or relating to this Agreement or a breach
thereof shall be settled by binding arbitration in
Dallas, Texas. The arbitration panel shall be comprised of
three arbitrators. Each party shall appoint one arbitrator for
the panel and the two so appointed shall appoint a third. The
panel shall resolve the dispute within sixty (60) days of the
appointment of the panel and shall notify the parties of its
findings in writing. Each party agrees to bear its own costs
of arbitrators and to split equally the cost of the third
arbitrator.
17. ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the
entire agreement and understanding between the parties, and
supersede any prior agreements and understandings relating to
the subject matter hereof. This Agreement may be modified or
amended only by a written instrument executed by all parties
hereto.
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IN WITNESS WHEREOF the parties have executed this Agreement on the date
first above written.
Liberty Waste, Inc.
By:
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EarthCare Company
By:
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