Exhibit 10.2
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AGREEMENT FOR THE SALE AND PURCHASE
OF STOCK OF
ATLANTIC OF NEW YORK, INC.
TABLE OF CONTENTS
Page
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ARTICLE I
ACQUISITION; CLOSING
Section 1.1 Incorporation of Recitals, Exhibits, and Schedules...................................... 2
Section 1.2 Time and Place for Closing.............................................................. 2
Section 1.3 Excluded Liabilities; Distribution of Atlantic New York Stock........................... 2
Section 1.4 Agreement to Sell Shares to Purchaser................................................... 2
Section 1.5 Consideration........................................................................... 2
Section 1.6 Deliveries by Purchaser................................................................. 4
Section 1.7 Deliveries by Seller.................................................................... 4
Section 1.8 Termination............................................................................. 5
Section 1.9 Tax Treatment........................................................................... 6
Section 1.10 Procedure for Termination; Effect of Termination........................................ 7
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
AND ATLANTIC NEW YORK
Section 2.1 Organization, Standing, and Ownership................................................... 8
Section 2.2 Contracts, Permits and Material Documents............................................... 9
Section 2.3 Personal Property....................................................................... 10
Section 2.4 Customers............................................................................... 10
Section 2.5 The Property............................................................................ 11
Section 2.6 Sufficiency of Assets; Title; Consents.................................................. 12
Section 2.7 Financial Statements.................................................................... 12
Section 2.8 Liabilities; Accounts Receivable and Working Capital.................................... 13
Section 2.9 Fiscal Condition........................................................................ 14
Section 2.10 Tax Returns............................................................................. 14
Section 2.11 Employees, Pensions and ERISA........................................................... 15
Section 2.12 Legality of Operation................................................................... 16
Section 2.13 Corrupt Practices....................................................................... 18
Section 2.14 Authority............................................................................... 18
Section 2.15 Transaction Intermediaries.............................................................. 19
Section 2.16 Intellectual Property................................................................... 19
Section 2.17 Litigation.............................................................................. 19
Section 2.18 Management of Atlantic Disposal and Subsidiaries........................................ 19
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Section 3.1 Structure................................................................................ 20
Section 3.2 Authorization to Proceed with this Agreement............................................. 20
Section 3.3 Binding Effect........................................................................... 20
Section 3.4 Legality of Operation.................................................................... 20
Section 3.5 Financing................................................................................ 21
Section 3.6 Absence of Intermediaries................................................................ 21
Section 3.7 Commission Filings....................................................................... 21
ARTICLE IV
ADDITIONAL AGREEMENTS OF SELLER, PURCHASER AND ATLANTIC NEW YORK
Section 4.1 Seller's Access to Records and the Property.............................................. 21
Section 4.2 Access to Records and the Property....................................................... 22
Section 4.3 Continuation of Businesses............................................................... 22
Section 4.4 Continuation of Insurance................................................................ 24
Section 4.5 No Solicitation.......................................................................... 24
Section 4.6 FIRPTA Certificate....................................................................... 24
Section 4.7 Financial Statements..................................................................... 24
Section 4.8 Consents and Approvals; Other............................................................ 24
Section 4.9 Discharge of Excluded Liabilities........................................................ 25
Section 4.10 SEC Filings.............................................................................. 25
Section 4.11 Updated Information...................................................................... 25
ARTICLE V
ADDITIONAL AGREEMENTS OF PURCHASER AND SELLER
Section 5.1 Payment of Expenses...................................................................... 26
Section 5.2 Filing of Tax Returns and Payment of Taxes............................................... 26
ARTICLE VI
CONDITIONS TO PURCHASER'S OBLIGATIONS
Section 6.1 Compliance by Seller and Atlantic New York............................................... 27
Section 6.2 Litigation Affecting This Transaction.................................................... 27
Section 6.3 Governmental or Regulatory Consents...................................................... 28
Section 6.4 Other Consents........................................................................... 28
Section 6.5 Closing of Atlantic Disposal Agreement................................................... 28
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ARTICLE VII
CONDITIONS TO SELLER'S OBLIGATIONS
Section 7.1 Compliance by Purchaser.................................................................. 28
Section 7.2 Litigation Affecting This Transaction.................................................... 28
Section 7.3 Governmental and Regulatory Consents..................................................... 29
Section 7.4 Other Consents........................................................................... 29
Section 7.5 Closing of Atlantic Disposal Agreement................................................... 29
ARTICLE VIII
INDEMNIFICATION
Section 8.1 Indemnification by Seller................................................................ 29
Section 8.2 Indemnification by Purchaser............................................................. 31
Section 8.3 Procedure for Indemnification with Respect to Third Party Claims......................... 31
Section 8.4 Procedure for Non-Third Party Claims..................................................... 32
Section 8.5 Survival of Claims....................................................................... 33
Section 8.6 Prompt Payment........................................................................... 33
Section 8.7 Insurance................................................................................ 34
ARTICLE IX
MISCELLANEOUS
Section 9.1 Nondisclosure by Seller.................................................................. 34
Section 9.2 Nondisclosure by Purchaser............................................................... 34
Section 9.3 Assignment; Binding Effect; Amendment.................................................... 35
Section 9.4 Entire Agreement......................................................................... 35
Section 9.5 Counterparts............................................................................. 35
Section 9.6 Notices.................................................................................. 36
Section 9.7 Governing Law............................................................................ 37
Section 9.8 No Waiver................................................................................ 37
Section 9.9 Time of the Essence...................................................................... 37
Section 9.10 Captions................................................................................. 37
Section 9.11 Severability............................................................................. 37
Section 9.12 Construction............................................................................. 37
Section 9.13 Extension or Waiver of Performance....................................................... 37
Section 9.14 Liabilities of Third Parties............................................................. 38
Section 9.15 Agreement Not Binding Until Fully Executed............................................... 38
Section 9.16 Publicity................................................................................ 38
Section 9.17 Arbitration.............................................................................. 38
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EXHIBITS AND SCHEDULES
Schedules
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1.9 Allocation of Assets
2.2 Material Documents
2.3(a)(i) Landfill Equipment
2.3(a)(ii) Rolling Stock
2.3(a)(iii) Containers
2.3(a)(iv) Boxcars
2.3(a)(v) Other Personal Property over $50,000
2.4 Customer List and Contracts
2.5(d) Wetlands
2.6(b) Permitted Encumbrances
2.6(c) Exceptions to Consents and Approvals
2.9 Fiscal Condition of Company
2.11(a) Employment Agreements
2.11(b) Employee Information
2.11(c) Employee Benefit Plans, Funds or Programs
2.11(e) Non-Qualified Plans
2.12(a) Exceptions to Company's operation in compliance with laws, etc.
2.12(b) Exceptions relating to environmental issues and liability
2.12(c) Other Interests in Landfills
2.12(d) Exceptions to Compliance with Environmental Laws
2.12(e) Notices of Violation
2.13(g) Exceptions to Approvals
2.14 Exceptions to right of Company to enter this
Agreement
2.17 List of Litigation and Summaries
3.4 Exceptions to Purchaser Compliance with Laws
6.4 Other Consents
Exhibits
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A Legal Description of Landfill
B Guaranty
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AGREEMENT FOR THE SALE AND PURCHASE OF
STOCK OF ATLANTIC OF NEW YORK, INC.
This Agreement ("Agreement") for the Sale and Purchase of Stock of
Atlantic of New York, Inc., a Delaware corporation ("Atlantic New York"), is
made as of March 25, 1998, by and among Atlantic Waste Disposal, Inc. ("Atlantic
Disposal"), Brambles Waste Services, Inc., a Delaware corporation (the
"Seller"), Atlantic New York and Eastern Environmental Services, Inc., a
Delaware corporation ("Purchaser").
RECITALS
WHEREAS, (i) Brambles USA, Inc. ("Brambles USA") is a wholly-owned
subsidiary of Brambles Industries Limited; (ii) the Seller is a wholly-owned
subsidiary of Brambles USA.; and (iii) Atlantic New York is a wholly-owned
subsidiary of Atlantic Disposal;
WHEREAS, Atlantic New York operates a municipal solid waste and
construction and demolition waste transfer station located at ▇▇▇-▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ (the "Transfer Station") (a legal description of
which is attached hereto as Exhibit A) pursuant to a lease by and between
Atlantic New York and D.C. Properties, Inc., dated March 28, 1989 (the "Transfer
Station Lease"). The business and operations of Atlantic New York are sometimes
referred to herein as the "Business" and all of the tangible and intangible
assets and properties owned by Atlantic New York are sometimes referred to
herein as the "Assets";
WHEREAS, on the date hereof, Brambles Waste Services, Inc., Atlantic
Disposal, certain subsidiaries of Atlantic Disposal (the "Subsidiaries") and
Purchaser have entered into on an Agreement for the Sale and Purchase of Stock
of Atlantic Waste Disposal, Inc. (the "Atlantic Disposal Agreement"), pursuant
to which Purchaser will acquire all of the outstanding capital stock of Atlantic
Disposal;
WHEREAS, Purchaser, Seller and Atlantic Disposal wish to enter into
this Agreement pursuant to which Purchaser will, subject to the terms and
conditions hereof, acquire ownership of all of the outstanding shares of the
Company's capital stock, par value $1 per share (the "Shares"), subject to the
terms and conditions of this Agreement; and
WHEREAS, Brambles USA has on the date hereof entered into a Guaranty
in the form attached hereto as Exhibit A.
NOW, THEREFORE, the parties hereto intending to be legally bound
hereby do hereby covenant and agree as follows:
ARTICLE I
ACQUISITION; CLOSING
Section 1.1 Incorporation of Recitals, Exhibits, and Schedules. The
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recitals set forth above and each Exhibit and Schedule hereto are incorporated
herein by reference and are a part of this Agreement. This Agreement contains a
number of references to Schedules. In each case, the referenced Schedule has
been included in a separate disclosure letter, delivered to Purchaser and
specifically identified as such, prior to the execution hereof. The Schedules
contained in that disclosure letter are specifically incorporated by reference
herein as and if set forth herein.
Section 1.2 Time and Place for Closing. The closing for the purchase and
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sale of the Shares by the Purchaser under this Agreement shall take place on or
before the fifteenth day after the conditions to Closing set forth in Articles
VI and VII are satisfied, time being of the essence, or such other date as the
parties mutually agree, at the offices of Purchaser's counsel, Drinker ▇▇▇▇▇▇ &
▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ or such other place as
the parties hereto may agree upon. The actual date of closing will be
established by the Purchaser and the Seller within ten days after the date on
which the conditions are satisfied. The date that closing occurs is referred to
hereinafter as the "Closing Date" and the act of closing as the "Closing."
Section 1.3 Excluded Liabilities; Distribution of Atlantic New York
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Stock. Prior to the Closing, Brambles Waste shall assume the Excluded
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Liabilities (as defined below) and Atlantic Disposal shall distribute all of the
outstanding capital stock of Atlantic New York to Brambles Waste (the
"Distribution"). The term "Excluded Liabilities" means (i) all intercompany
obligations between Atlantic New York, on the one hand, and any of Brambles
Industries Limited, Brambles USA, Brambles Waste, Atlantic Disposal and any of
their respective direct or indirect subsidiaries, on the other hand, and (ii)
any Tax Liability (as defined in Section 2.10).
Section 1.4 Agreement to Sell Shares to Purchaser. At the Closing, the
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Seller shall transfer to Purchaser (or, at the direction of Purchaser, its
assignee permitted under Section 9.3 of this Agreement) all of the Shares, free
and clear of any Encumbrance, in exchange for the Purchase Price (as defined
below).
Section 1.5 Consideration. (a) The aggregate purchase price (as
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adjusted, the "Purchase Price") for the Shares shall be $5,000,000. The Purchase
Price shall be paid by federal wire transfer at Closing to the Seller pursuant
to instructions furnished by the Seller to the Purchaser in writing not fewer
than three business days prior to Closing, and shall be subject to adjustment as
and when provided for in Section 1.5(b).
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(b) The Purchase Price shall be increased by the amount by which,
at Closing, the Net Working Capital (as defined below) is greater than zero, and
the Purchase Price shall be decreased by the amount by which, at Closing, the
Net Working Capital (as defined below) is less than zero. Any such increase or
decrease in Purchase Price shall be paid by the Purchaser or the Seller, as
applicable, within five (5) business days following the conclusive determination
of Net Working Capital (such fifth business day, the "Due Date"). The
determination of Net Working Capital shall be made as set forth in Section
1.5(c) below.
(c)(i) Within sixty (60) days after the Closing Date, the Purchaser
shall prepare and deliver to Seller the consolidated balance sheet for Atlantic
New York as of the close of business on the Closing Date (the "Closing Date
Balance Sheet"). The Closing Date Balance Sheet shall set forth the
consolidated Net Working Capital (as defined below) of Atlantic New York.
Seller shall have the right to review all of the Purchaser's work papers and all
relevant records of the Purchaser and Atlantic New York relating to the Closing
Date Balance Sheet. For purposes of this Agreement, Net Working Capital of
Atlantic New York shall mean the current assets of Atlantic New York, less all
current liabilities in each case as determined in accordance with generally
accepted accounting principles, applied consistently with the accounting methods
and principles used to prepare the financial statements referred to in Section
2.7.
(ii) The Closing Date Balance Sheet delivered by the Purchaser
to Seller shall be deemed to be and shall be final, binding and conclusive on
the parties hereto, unless Seller disputes the Closing Date Balance Sheet in
accordance with this Section 1.5(c)(ii). Seller may dispute any amounts
reflected on the Closing Date Balance Sheet (any such disputed amounts, the
"Disputed Matters") by giving written notice to the Purchaser of each Disputed
Matter within forty-five (45) days of receipt of the Closing Date Balance Sheet.
Any Disputed Matters shall be subject to good faith negotiations between the
parties for up to fifteen (15) days prior to being referred to the Independent
Accounting Firm (as defined below). Any Disputed Matters not resolved by such
good faith negotiations shall be decided by an independent accounting firm
acceptable to both Seller and Purchaser (the "Independent Accounting Firm"). The
costs and expenses of the Independent Accounting Firm shall be shared equally by
the Seller and the Purchaser. The Independent Accounting Firm so chosen shall
consider only the Disputed Matters and the Purchaser and the Seller shall use
reasonable efforts to cause the Independent Accounting Firm to render a final
decision on the Disputed Matters by delivering a written report to Purchaser and
Sellers no later than thirty (30) days after having received the assignment with
respect thereto. The decision of the Independent Accounting Firm with respect to
all Disputed Matters shall be based solely on whether the Closing Date Balance
Sheet was prepared in accordance with the requirements of this Agreement, shall
be final and binding upon the parties hereto and shall not be subject to
challenge in any court.
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Section 1.6 Deliveries by Purchaser. At the Closing, the Purchaser
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shall deliver to the Seller:
(a) The Purchase Price, as provided in Section 1.5 above;
(b) A certified copy of the resolutions of the Board of Directors of
Purchaser authorizing the execution and delivery of this Agreement and the other
agreements, documents and instruments referred to herein or required hereby (the
"Collateral Documents") and the consummation of the transactions contemplated
herein and therein;
(c) A certificate in form and substance reasonably satisfactory to
the Sellers executed by the Chief Executive and Chief of Financial Officers of
the Purchaser to the effect that the condition precedent to the obligation of
the Seller hereunder set forth in Section 7.1 is satisfied; provided that if
such condition is not satisfied and the Seller elects to close, the certificate
shall contain such exceptions as may be reasonably acceptable to Seller and
Purchaser;
(d) Such other certificates and writings as may be reasonably be
requested by the Seller to effectuate or evidence the completion of the
pertinent transactions contemplated hereby and the satisfaction by the Purchaser
of the pertinent terms and conditions hereof;
(e) A release from the Purchaser providing that the Purchaser is
releasing Atlantic New York from any and all claims, causes of action, debts,
and obligations whatsoever relating to events occurring at or prior to Closing,
except any and all obligations arising under this Agreement and the Collateral
Documents, in form and content satisfactory to Seller.
Section 1.7 Deliveries by Seller. At the Closing, the Seller shall
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deliver or cause to be delivered to the Purchaser:
(a) A certificate in form and substance reasonably satisfactory to
Purchaser executed by the Chief Executive and Chief Financial Officers of the
Seller and Atlantic New York and the Subsidiaries as Purchaser shall request to
the effect that the condition precedent to the obligations of Purchaser
hereunder set forth in Section 6.1 is satisfied; provided that if such condition
is not satisfied and the Purchaser elects to close, the certificate shall
contain such exceptions as may be reasonably acceptable to Purchaser and Seller.
(b) A release from the Seller in form and content satisfactory to
Purchaser, which provides that the Seller and its affiliates are releasing
Atlantic New York from any and all claims, causes of action, debts, and
obligations whatsoever, except any and all obligations arising under this
Agreement and the Collateral Documents, and from events occurring after the
Closing;
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(c) Current certificates of good standing for the Seller and Atlantic
New York from the Secretaries of State of their respective jurisdictions of
formation and each jurisdiction in which they are qualified as a foreign
corporation or other business entity;
(d) Such certified and authenticated copies of all documents,
agreements, and filings executed or made in connection with this Agreement and
the assumption of the Excluded Liabilities as the Purchaser may reasonably
request;
(e) Duly executed releases or terminations of financing statements,
or other evidence reasonably satisfactory to Purchaser and Purchaser's lenders
that all liens, mortgages on and security interests in the Assets and the Shares
(other than those comprising Permitted Encumbrances and Encumbrances which are
not, individually or in the aggregate, material) have been released and
terminated;
(f) At Purchaser's cost, a bring down endorsement of the title
insurance policy with respect to the real property subject to the Lease (the
"Property");
(g) Certificates representing all of the Shares, duly endorsed for
transfer or with stock powers affixed thereto executed in blank in proper form
for transfer, free and clear of any Encumbrance;
(h) Copies of the Certificates of Incorporation and Bylaws of
Atlantic New York, certified, as appropriate, by the Secretary of State of its
respective state of incorporation or the Secretary of the appropriate
corporation as appropriate;
(i) Such other assignments, certificates, bills of sale, deeds, title
policies, affidavits, indemnities, estoppels and other instruments of conveyance
and warranty (in proper recordable or fileable form, as appropriate) as may
reasonably be requested by Purchaser to effectuate or evidence the completion of
the pertinent transactions contemplated hereby and the satisfaction by the
Seller of the pertinent terms and conditions hereof; and
(j) Substantially all books and records of Atlantic New York.
Section 1.8 Termination. This Agreement may be terminated and the
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transactions contemplated herein may be abandoned at any time prior to the
Closing:
(a) by mutual consent of Purchaser and Seller (it being understood
that Purchaser and Seller shall, if a condition to Closing contained in Article
VI or VII becomes impossible of fulfillment using the efforts required by this
Agreement, promptly terminate this Agreement pursuant to this Section 1.8(a));
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(b) by Purchaser or Seller, if a material breach of any provision of
this Agreement has been committed by the other and such breach has not been
waived or cured within ten (10) days after notice or if a Closing shall not have
occurred by 165 days from the execution of this Agreement; provided, however,
that neither Purchaser nor Seller shall be entitled to terminate this Agreement
if the other is ready, willing and able to close and has brought, prior to the
termination of this Agreement by any party under this Section 1.8 a claim for
specific performance of this Agreement, in which case this Agreement may not be
terminated until a final determination of such claim for specific performance
pursuant to Section 1.10 of this Agreement; or
(c) by Purchaser or Seller, if the Atlantic Disposal Agreement has
been terminated pursuant to its terms.
Section 1.9 Tax Treatment.
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(a) Allocation of Purchase Price. The purchase price for the Shares
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(including assumed liabilities of Atlantic New York) shall be allocated among
the assets of Atlantic New York in accordance with Schedule 1.9 which shall be
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prepared by Seller and delivered to Purchaser within 60 days after the Closing
Date. Seller shall prepare for Purchaser's review a schedule setting forth (i)
the modified aggregate deemed sales price (the "MADSP") at which the Company is
deemed to have sold its assets for tax purposes as a result of the Section
338(h)(10 Election, (ii) the adjusted grossed-up basis (the "AGUB") at which the
Company is deemed to have purchased its assets for tax purposes as a result of
such election, and (iii) the allocations of MADSP and AGUB among the assets of
the Company (collectively, the "Proposed Initial Allocation"). The Proposed
Initial Allocation shall be determined in accordance with Section 338 of the
Code and the applicable regulations thereunder, in a manner consistent with the
allocation set forth on Schedule 1.9 hereto. Unless Purchaser shall have
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objected in writing to the Proposed Initial Allocation within 30 days of the
receipt thereof, Seller will be deemed to have agreed to the Proposed Initial
Allocation, which shall become the Initial Allocation. The Initial Allocation
shall be set forth on a statement (the "Initial Allocation Statement") signed by
the president or any vice president of Seller. If any increase or decrease in
MADSP and/or AGUB occurs, the amount of such increase or decrease and the
allocation thereof among the assets of Atlantic New York (collectively, the
"Adjustment Allocation") shall be set forth on a statement (the "Adjustment
Allocation Statement") prepared by Seller and delivered to Purchaser in
accordance with Treas. Reg. (S)_1.338(b)-3(d) or Treas. Reg. (S)_1.338(b)-3(e),
whichever is applicable. The Adjustment Allocation Statement shall be subject
to the consent of Purchaser. Purchaser and Seller will, to the maximum extent
permitted under applicable law, (i) file, or cause to be filed, all Tax Returns
in a manner consistent with the Initial Allocation and any Adjustment
Allocations and (ii) not take any action inconsistent therewith.
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(b) Any dispute regarding the Proposed Initial Allocation or any
Adjustment Allocation shall be subject to good faith negotiations between the
parties for up to sixty (60) days prior to being referred to the Tax Dispute
Accountants (as defined below). At the end of such sixty day period, any
remaining dispute regarding the Proposed Initial Allocation or any Adjustment
Allocation shall be submitted for resolution to independent accountants of
nationally recognized standing reasonably satisfactory to Purchaser and Seller
(the "Tax Dispute Accountants"). The decision of the Tax Dispute Accountants
shall be final, conclusive and binding on the parties. The fees and expenses of
the Tax Dispute Accountants in resolving a dispute will be borne equally by
Purchaser and Seller except that the Tax Dispute Accountants may, if justice
requires, allocate such expenses and fees in any other manner they may determine
between the Purchaser, one the one hand, and Seller on the other.
(c) Section 338(h)(10) Election. The parties intend the purchase of
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Shares to be a "qualified stock purchase" for purposes of Section 338(d)(3) of
the Code, Seller and Purchaser shall join in making an election under Section
338(h)(10) of the Code with respect to the purchase of the Shares (the
"338(h)(10) Election"). Seller shall deliver to Purchaser at the Closing (1)
Internal Revenue Service Form 8023 and any applicable similar forms required by
state or local law fully completed with respect to the purchase of the Shares
and executed by a duly authorized officer of Brambles USA, and (2) all
additional data and materials required to be attached to such Form 8023 and any
applicable similar forms required by state or local law pursuant to Treas. Reg.
(S)_1.338-1T or otherwise. Brambles USA shall attach a copy of such Form 8023
to the consolidated Federal income tax return for the affiliated group of
corporations of which it is the common parent for its taxable period which
includes the Closing Date and otherwise shall cooperate fully with Purchaser in
making the 338(h)(10) Election.
(d) Federal and State Tax Treatment. The parties hereto acknowledge
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that for Federal income tax purposes (and for state tax purposes for those
states that use a taxpayer's Federal income tax liability or Federal taxable
income as a base for computing such taxpayer's state tax liability, or whose
income tax provisions are otherwise similar to the Federal income tax in this
respect) the purchase of the Shares and the 338(h)(10) Election will be treated
in all respects as a sale of assets by Atlantic New York to a newly-formed
subsidiary of Purchaser followed by a complete liquidation of Atlantic New York
into Seller, and the parties agree to report the transaction in a manner
consistent with this treatment. The parties also agree that neither Purchaser
nor Atlantic New York shall be liable for any taxes, including income, transfer,
franchise, sales or use taxes resulting from the purchase of the Shares and the
338(h)(10) Election.
Section 1.10 Procedure for Termination; Effect of Termination. A party
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terminating this Agreement pursuant to Section 1.8 shall give written notice
thereof to each other party hereto, whereupon this Agreement shall terminate and
the transactions contemplated hereby shall be abandoned without further action
and all further obligations of the parties under this Agreement
7
will terminate; provided, however, that no termination shall limit or impair any
party's right to pursue all legal remedies or limit any party's responsibility
for any breach of or failure to perform under this Agreement by another party.
In addition to any other remedy that the Purchaser or the Seller may have under
this Agreement or at law or in equity, the Purchaser shall be entitled to
require the Seller to specifically perform its obligations under this Agreement,
and the Seller shall be entitled to require the Purchaser to specifically
perform its obligations under this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
AND ATLANTIC NEW YORK
With knowledge that Purchaser is relying upon the representations and
warranties herein contained, the Seller and Atlantic New York each individually,
severally and jointly represent and warrant to Purchaser, as of the date hereof,
and, as updated pursuant to Section 4.11, as of the Closing Date, as follows.
Certain of the following representations and warranties are made to the
knowledge of the Seller and Atlantic New York. When so used, "knowledge" shall
mean the actual knowledge of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, T. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇.
Section 2.1 Organization, Standing, and Ownership.
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(a) Each of the Seller and Atlantic New York is a corporation, duly
organized, validly existing, and in good standing under the laws of its
jurisdiction of formation and has all necessary corporate power and authority to
carry on its business as presently conducted, to own and lease the assets and
properties which it owns and leases and to perform all of its obligations under
each agreement and instrument by which it is bound. Each of the Seller and
Atlantic New York is duly qualified to do business as a foreign corporation and
is in good standing under the laws of each jurisdiction in which it is required
to qualify to do business, except where the failure to be so qualified and in
good standing would not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the condition (financial or
otherwise) or operations of Atlantic New York or the Business, or on the Assets
after taking into consideration the liabilities of Atlantic New York (a
"Material Adverse Effect").
(b) All of the capital stock of Seller is owned of record by Brambles
USA, free and clear of any Encumbrance. No individual, trust, corporation,
partnership, limited liability, joint venture, governmental body, tribunal,
agency, or instrumentality (individually a "Person" and collectively "Persons")
has any right (contractual, equitable, statutory or otherwise) option or warrant
to acquire any capital stock, indebtedness or obligation of
8
Atlantic New York and Atlantic New York does not hold beneficially or of record
any equity or other interest (or has any obligation, option, warrant, agreement
or right to acquire) any equity interest in any entity.
(c) All of the capital stock of Atlantic New York is owned of record
by Atlantic Disposal, and, prior to the Closing will be owned of record by the
Seller free and clear of any Encumbrance. No Person (other than Purchaser) has
any statutory, equitable, contractual or other right of any kind to acquire
additional securities, interests, capital stock, indebtedness or obligation of
any kind in or from Atlantic New York nor has any Person claimed any such
rights. The Shares constitute all of the authorized capital stock of Atlantic
New York. The Shares have been duly authorized and validly issued, and are free
and clear of any Encumbrance.
Section 2.2 Contracts, Permits and Material Documents.
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(a) The items listed in Schedule 2.2 are all of the following that
are used by, in or for the benefit of the Business, in each case as and at the
date hereof ("Material Documents"): (i) leases for real and personal property;
(ii) licenses; (iii) franchises; (iv) promissory notes, guarantees, bonds,
letters of credit, mortgages, liens, pledges, and security agreements; (v)
collective bargaining agreements; (vi) patents, trademarks, trade names,
copyrights, trade secrets, trademarks, proprietary rights, symbols, service
marks, logos and all other intellectual property; (vii) permits, licenses,
consents and other approvals from governments, governmental agencies (federal,
state and local) and/or third parties relating to, used in or required for the
operation of the Business ("Government Authorizations"); and (viii) all other
contracts, agreements (whether oral or written) and instruments not listed on
another Schedule attached to this Agreement (such as the customer contracts
listed on Schedule 2.4), in each such case, which are binding on Atlantic New
York and pursuant to which it derives any material benefit or has imposed upon
it any material detriment. The Material Documents listed on Schedule 2.2
represent all of the items listed in subclauses (i) through (viii) of the
preceding sentence of Atlantic New York, including, without limitation,
interests in leases for real property, agreements and permits and licenses,
except for documents under which the aggregate liability and obligations of
Atlantic New York does not and after the Closing will not exceed $100,000.
(b) Neither the Seller or Atlantic New York nor, to their knowledge,
any person or party to any of the Material Documents or bound thereby is in
material or knowing default under any of the Material Documents, and no act or
event has occurred which with notice or lapse of time, or both, would constitute
such a default, and the Transfer Station Lease is in full force and effect and
not in default in any respect. The Assets include all rights necessary to enable
Atlantic New York to conduct the Business as it is now being conducted. Except
as disclosed on Schedule 2.2 the Seller and Atlantic New York have
9
performed all of their obligations required to be performed by them under each
Material Document.
(c) Each Material Document is in full force and effect, and is valid,
binding and enforceable against the parties thereto in accordance with its
terms.
Section 2.3 Personal Property.
-----------------
(a) The Assets include all items of tangible personal property owned,
leased or otherwise held for use by or in the Business (the "Personal Property")
and include, without limitation, the following:
(i) Transfer station equipment, including, without limitation,
scales, compactors and extractors used in Atlantic New York's operations, all of
which are listed on Schedule 2.3(a)(i);
(ii) Rolling stock, including motor vehicles, trucks, front and
rear end loaders, and compactors and accessories and attachments to the rolling
stock together with information as to the make, description of body and chassis,
model number, serial number and year of each such vehicle all of which are
listed on Schedule 2.3(a)(ii);
(iii) Containers together with information as to container size
and year of manufacture, all of which are listed on Schedule 2.3(a)(iii);
(iv) Railroad boxcars, all of which are listed on Schedule
2.3(a)(iv);
(v) Inventory of parts, tires and accessories;
(vi) Shop tools;
(vii) Furniture and office or other equipment; and
(viii) Other tangible personal property having a book value or
original acquisition price in excess of $50,000, all of which are listed on
Schedule 2.3(a)(viii).
(b) At the Closing the Personal Property shall be in good operating
condition, normal wear and tear excepted.
Section 2.4 Customers. Schedule 2.4 attached hereto lists the name and
---------
address of each customer that provides or has provided within the past two years
prior to the date hereof more than 3% of the gross revenues of the Business for
any fiscal year, together with copies (or, in the
10
case of oral contracts, summaries), of all customer contracts with such
customers, and the information supplied thereon is true, correct and complete,
in all material aspects. As of the date hereof, neither the Seller or Atlantic
New York nor, to their knowledge, any Person or party to any of the customer
contracts with such customers is in material or knowing default under any of the
customer contracts, and no act or event has occurred which with notice or lapse
of time, or both, would constitute such a default. As of the date hereof,
neither the Seller nor Atlantic Disposal has received any notice that any such
customer intends not to renew any contract or otherwise cease or curtail doing
business with either of them and, no such customer is currently renegotiating
any material term of any contract or any material contract. Except as would not
reasonably be expected to have a Material Adverse Effect, each such customer
contract is in full force and effect, and valid, binding and enforceable against
the parties thereto in accordance with its terms. Except as disclosed on
Schedule 2.4, each such customer contract is assignable without the consent,
approval by or authorization of any Person.
Section 2.5 The Property. (a) Atlantic New York has never owned, leased
------------
or otherwise occupied, had an interest in or operated any real property other
than the Property. Atlantic New York has, and at the Closing will have, a good
and marketable leasehold interest in full force and effect in the Property, and
that interest is insurable at regular standard rates by a reputable title
company.
(b) Seller and Atlantic New York have made available to Purchaser all
engineering, geologic and other similar reports, documentation, surveys, title
reports and maps relating to the Property in the possession or control of Seller
or Atlantic Disposal or their consultants or employed professional firms.
(c) No person, other than Atlantic New York, has a present or future
right to possession of all or any part of the Property, except for any right
defined in, under or by any of the Permitted Encumbrances.
(d) No portion of the Property contains any areas that could be
characterized as disturbed, undisturbed or man-made wetlands or as "waters of
the United States" pursuant to any Applicable Laws or the procedural manuals of
the Environmental Protection Agency, U.S. Army Corps of Engineers or the New
York Department of Environmental Conservation ("DEC") whether such
characterization reflects current conditions or historic conditions which have
been altered without the necessary permits or approvals, except as listed on
Schedule 2.5(d).
(e) There are no levied or pending special assessments affecting all
or any part of the Property owed to any governmental entity and, to the
knowledge of Seller and Atlantic New York, none is threatened.
11
(f) There are no proceedings or amendments pending and brought by or,
to the knowledge of the Seller or Atlantic New York threatened by, any third
party which would result in a change in the allowable uses of the Property or
which would modify the right of Atlantic New York to use the Property for a
solid waste landfill after the Closing Date.
Section 2.6 Sufficiency of Assets; Title; Consents.
--------------------------------------
(a) The Assets will include all of the assets and properties used by
Atlantic New York in the conduct of the Business as of the date hereof together
with all assets and properties acquired by Atlantic New York from and after the
date hereof, except, in each case, for assets that have been disposed of not in
breach of this Agreement. Such assets are sufficient to carry on the Business
after the Closing as previously conducted by the Sellers, Atlantic Disposal and
Atlantic New York.
(b) Except as noted on Schedule 2.6(b), each Asset is presently owned
by Atlantic New York, free and clear of any security interests, liens,
mortgages, rights of third parties, title retention agreements, options,
equities and other restrictions on transfer or disposition (individually, an
"Encumbrance") and collectively "Encumbrances") other than (i) liens for taxes
that have not yet become delinquent and (ii) the Encumbrances listed on Schedule
2.6(b), (collectively, the "Permitted Encumbrances"). Upon the consummation of
the Closing all of the Assets will be owned by Atlantic New York free and clear
of any Encumbrance, except for Permitted Encumbrances. Atlantic New York has
upon the consummation of the Closing will have good and marketable title to all
of the Assets, except for assets held under lease or license. Schedule 2.6(b)
identifies or specifically references another Schedule identifying all liens and
leases by amount affecting any of Assets and the document, instrument or law
under which it arises.
(c) Except as set forth on Schedule 2.6(c), no consent, approval,
ratification, waiver or other authorization of any Person (including, without
limitation, Government Authorizations) is necessary or appropriate for the
consummation of the transactions contemplated hereby (including, without
limitation, for the continuation of the Businesses by Atlantic New York without
interruption as of the Closing).
Section 2.7 Financial Statements.
--------------------
(a) To the knowledge of the Seller and Atlantic New York, there is no
material inaccuracy in the audited, consolidated balance sheets for Brambles USA
as of June 30, 1996 and June 30, 1997, heretofore provided to Purchaser and
audited consolidated statements of income, cash flow, and retained earnings for
the twelve months then ended or the unaudited, consolidated balance sheet for
Brambles USA at December 31, 1997 and unaudited consolidated statements of
income, cash flow, and retained earnings for the six-months then ended.
12
(b) The Seller and Atlantic New York have heretofore provided to
Purchaser true and correct copies of unaudited consolidated balance sheets for
Atlantic New York as of June 30, 1996 and June 30, 1997, and unaudited
consolidated statements of income, cash flow and retained earnings for the
twelve months then ended, all prepared on an accrual basis.
(c) The Seller and Atlantic New York have heretofore provided to
Purchaser true and correct copies of an unaudited consolidated balance sheet for
Atlantic New York as of December 31, 1997 ("Most Recent Balance Sheet"), and
unaudited consolidated statements of income, cash flow and retained earnings for
the six months then ended ("Most Recent Income Statement"), both prepared on an
accrual basis and consistently with the unaudited financial statements referred
to in Section 2.7(b). The Most Recent Balance Sheet and Most Recent Income
Statement are hereafter referred to as the "Most Recent Financial Statements."
Together, the financial statements referred to in Sections 2.7(b) and (c) are
hereinafter referred to as the "Seller's Financial Statements."
The Seller's Financial Statements have been prepared in accordance with
Australian generally accepted accounting principles consistently applied as in
effect on the date hereof ("GAAP"), except in the case of the interim Seller's
Financial Statements, for the absence of footnotes. All notes and contingent
liabilities required to be stated and reflected under GAAP are stated and
reflected on the Seller's Financial Statements. Each of the Seller's Financial
Statements (including all footnotes thereto) is true, complete and correct in
all material respects. The consolidated balance sheets included in Seller's
Financial Statements present fairly and accurately in all material respects the
consolidated financial condition of Atlantic New York as of the dates indicated
thereon and the statements of income included in Seller's Financial Statements
present fairly and accurately in all material respects on an accrual basis the
results of the operations of such Atlantic New York for the periods indicated
thereon. Since the respective dates of the Seller's Financial Statements,
Atlantic New York has not (i) made any material change in accounting policies or
(ii) effected any prior period adjustment to, or other restatement of, any
Seller's Financial Statements for any period.
Section 2.8 Liabilities; Accounts Receivable and Working Capital.
----------------------------------------------------
(a) Atlantic New York, on a consolidated basis, has no liabilities
other than (i) liabilities fully reflected or reserved for in the Most Recent
Financial Statements, (ii) liabilities incurred in the ordinary course of the
Business since the date of the Most Recent Financial Statements, and (iii)
liabilities, the existence of which are reflected on any Schedule to this
Agreement.
(b) All accounts receivable have been generated in the ordinary
course of the Business and all services required to be rendered for such
accounts receivable to be due have
13
been rendered. To the knowledge of Seller and Atlantic New York, there are no
valid defenses or set-offs to any of the accounts receivable.
Section 2.9 Fiscal Condition. Since the date of the Most Recent Balance
----------------
Sheet, except as set forth on Schedule 2.9, there has not been and, at the
Closing, there shall not have been:
(a) Any material adverse change in the condition (financial or
otherwise) and operations of Atlantic New York, the Business or the Assets after
taking into consideration the liabilities of Atlantic New York (a "Material
Adverse Change"), or any event, condition or contingency that is reasonably
likely to result in such a Material Adverse Change;
(b) Any disposition by Atlantic New York of any of its capital stock
or any grant of any option or right to acquire any of its capital stock, or any
acquisition or retirement by Atlantic New York of any of its capital stock or
any declaration or payment of any dividend or other distribution of its capital
stock;
(c) Any sale or other disposition of any asset, property or right
owned by Atlantic New York at the close of business on the date of the Most
Recent Balance Sheet, or acquired by them since that date, other than in the
ordinary course of business and not exceeding $100,000 in value in the
aggregate;
(d) Any expenditure or commitment by or on behalf of Atlantic
Disposal or any Subsidiary for the acquisition of any asset having an
acquisition price of $100,000 or more or assets having aggregate acquisition
prices of $100,000 or more;
(e) Any increase in excess of ten percent (10%) in the compensation
payable or to become payable by Atlantic New York to any officer or key
employee.
(f) any event which would be prohibited or would require the consent
of Purchaser under Section 4.3.
Section 2.10 Tax Returns. Atlantic New York has filed or will file all
-----------
Federal and other tax returns, including without limitation, income tax,
franchise tax, corporate shell tax, sales tax, and use tax, for all periods
ending on or before the Closing Date, on or before the due date of such return
(as may have been extended by any valid extension of time) and have paid or will
pay all taxes owed by Atlantic New York for the periods covered by the said
returns, except for such failures to file or pay as could not result in a
liability of Atlantic New York (a "Tax Liability") for such taxes or give rise
to a lien on the Assets or the capital stock of Atlantic New York.
14
Section 2.11 Employees, Pensions and ERISA.
-----------------------------
(a) Atlantic New York does not have any contract of employment with
an officer or other employee that is not terminable without penalty or payment
other than accrued salary and benefits on notice of two weeks or less, except as
listed on Schedule 2.11(a).
(b) No employee of Atlantic New York is represented by any union and
there have been no organizing or other campaigns within the past three years
seeking such representation. The name, social security number and current rate
of compensation of each of the employees of the Business and the department in
which each person is employed is listed on Schedule 2.11(b) attached hereto.
There is no pending or threatened dispute between (i) the Seller and Atlantic
Disposal and (ii) any of these employees which might materially and adversely
affect the continuance of the Business.
(c) Schedule 2.11(c) lists all employee benefit plans (as defined in
Section 2(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")), funds or programs and any other employee benefit programs or
policies which are currently maintained by the Seller or Atlantic Disposal for
the benefit of any employee of Atlantic New York or to which either of them
currently contributes or has an obligation to contribute for the benefit of any
employee of Atlantic New York (collectively, the "Plans"), including, without
limitation, agreements containing "golden parachute" provisions, whether or not
the Plans are or are intended to be (i) covered or qualified under the Internal
Revenue Code of 1986, as amended (the "Code"), ERISA or any other applicable
law, (ii) written or oral, or (iii) funded or unfunded.
(d) The Seller and Atlantic New York have delivered to the Purchaser
(i) true and complete copies of all Plan documents and other instruments
relating thereto as currently in effect, (ii) accurate and complete detailed
summaries of all oral Plans, (iii) true and complete copies of the most recent
financial statements with respect to the Plans, (iv) true and complete copies of
all annual reports for any Plan prepared within the past three years, and (v)
all filings submitted to and any correspondence received from any government
agency relating to any Plan within the past three years.
(e) Each Plan which is intended to be qualified under Section 401(a)
and exempt from tax under Section 501(a) of the Code has received a favorable
determination letter from the IRS and no such letter relating to any Plan has
been revoked. To the knowledge of the Seller and Atlantic New York, nothing has
occurred since the date of any such determination letter which may adversely
affect such qualification or exemption, or result in the imposition of excise
taxes or tax on unrelated business income under the Code or ERISA except as set
forth on Schedule 2.11(e).
15
(f) No Plan is subject to Title IV of ERISA. All Plans have been
administered, operated and managed in substantial compliance with the governing
documents of the Plan and the applicable requirements of ERISA and the Code and
other applicable laws and regulations.
(g) There is no material matter, action, audit, suit or claim pending
(other than routine claims for benefits) or, to the knowledge of the Seller and
Atlantic New York, threatened relating to any Plan, fiduciary of any Plan or
assets of any Plan, before any court, tribunal or government agency.
(h) The transactions contemplated herein will not accelerate any
liability under any Plan because of an acceleration of any rights or benefits to
which any employee may be entitled thereunder.
(i) Each most recent Plan audit report, and annual report, certified
by the Plan's auditors, fairly presents the actuarial status and the financial
condition of the Plan as at the date thereof and the results of operations of
the Plan for the plan year reflected therein and, subject to changes in amounts
attributable to investment performance and normal employee turnover, there has
been no material adverse change in the condition of the Plan since the date of
the most recent Form 5500 or audited annual financial statement.
(j) The Seller and Atlantic New York have not had, at any time, any
obligations with respect to, and does not make and has not made at any time
contributions to, any multi-employer plan (as defined in Section 3(37) of
ERISA).
Section 2.12 Legality of Operation.
---------------------
(a) Except as disclosed in Schedule 2.12(a) the Seller and Atlantic
New York and the Property is and, upon the consummation of the Closing will be,
in compliance with all Federal, state and local laws, rules and regulations,
orders, decrees, directives, permits, franchises, and consents applicable to it,
the Business or the Assets including, without limitation, the following laws:
land use laws, zoning, payroll, employment, labor, or safety laws; or federal,
state or local "anti-trust" or "unfair competition" or "racketeering" laws such
as but not limited to the ▇▇▇▇▇▇▇ Act, ▇▇▇▇▇▇▇ Act, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Act, Federal
Trade Commission Act, or Racketeer Influenced and Corrupt Organization Act, but
excluding all Environmental Laws (as defined below) which are addressed in (b)
below, ("Law"). The Property at all times during the operation of the transfer
station and Business has been licensed, permitted, and authorized as a landfill
accepting municipal solid waste in accordance with all applicable Laws. Except
as disclosed in Schedule 2.12(a) the Seller Atlantic New York is, and upon
consummation of the Closing, will be, in compliance with all Government
Authorizations. Except as disclosed in Schedule 2.12(a), neither Seller nor
Atlantic New York has received notification of any past or
16
present failure by Atlantic Disposal to comply with any Law applicable to it or
its assets or to the Businesses or the Assets.
(b) Except as disclosed in Schedule 2.12(b) to this Agreement,
Atlantic New York is in compliance with all Federal, state and local laws, rules
and regulations relating to environmental issues of any kind and/or the receipt,
transport or disposal of any hazardous or non-hazardous waste materials from any
source ("Environmental Law"). Except as disclosed in Schedule 2.12(b), with
respect to any Environmental Law, Atlantic New York is in compliance with all
permits, licenses, and orders related thereto or issued thereunder with respect
to Environmental Laws, as are applicable to its property and operations,
including, without limitation, any order, decree or directive of any court or
federal, state, municipal, or other governmental department, commission, board,
bureau, agency or instrumentality wherever located. Except as set forth on
Schedule 2.12(b), Atlantic New York has not transported, stored, treated or
disposed, or allowed any third persons, on its behalf, to transport, store,
treat or dispose waste to or at (i) any location other than a site lawfully
permitted to receive such waste for such purpose or, (ii) any location currently
designated for remedial action pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA") or any similar federal or
state statute; nor has it performed, arranged for or allowed by any method or
procedure such transportation or disposal in contravention of state or federal
laws and regulations or in any other manner which may result in liability for
contamination of the environment; and it has not disposed, or knowingly allowed
third parties to dispose of waste upon property owned or leased by it other than
as permitted by, and in conformity with, applicable Environmental Laws. Without
limiting the generality of the foregoing, Atlantic New York has not received any
notification (including requests for information from any governmental agency
asserting that the Business is or may be a "potentially responsible person" for
a remedial action at a waste storage, treatment or disposal facility) pursuant
to the provisions of CERCLA, or any similar federal or state statute assigning
responsibility for the costs of investigating or remediating releases of
contaminants into the environment. Atlantic New York has not received hazardous
waste as defined in the Resource Conservation and Recovery Act, 42 USCA Section
6901 et seq., or in any similar federal or state statute in quantities which
-- ---
would require remediation.
(c) Except as listed in Schedule 2.12(c), Atlantic New York has not
ever owned, operated, had an interest in, and/or leased a waste transfer,
recycling, treatment, storage, landfill or other disposal facility, except for
the facility located at the Property. Atlantic New York and the Subsidiaries
have obtained and maintained, when required to do so under applicable Laws, trip
tickets, signed by the applicable waste generators demonstrating the nature of
all waste deposited and or transported by any of them. To the knowledge of the
Seller and Atlantic New York, no employee, contractor or agent of Atlantic New
York has, in the course and scope of employment therewith, been harmed by
exposure to hazardous materials, as defined under the Environmental Laws. No
liens with respect to environmental liability have been imposed against
17
Atlantic New York under CERCLA or any comparable state statute or other
applicable Law, and no facts or circumstances exist which would give rise to the
same.
(d) Except as disclosed in Schedule 2.12(d), Atlantic New York has
not received notification of any past or present failure by any of them to
comply with any Environmental Law applicable to it or its operations or its
assets.
(e) Schedule 2.12(e) is a list of all notices of violations of
Environmental Law issued to Atlantic New York pertaining to the Assets or the
Business by any federal, state or local regulatory agency. There are no notices
of violation of Environmental Law either from a federal, state or local
authority received by it or outstanding, except as listed in Schedule 2.12(e).
(f) To the knowledge of Seller and Atlantic New York, neither the
Seller nor Atlantic New York is under investigation by any District Attorney or
similar state or local official or agency or the Justice Department of the
United States of America for the violation of any Laws, including, without
limitation, racketeering, unfair competition or anti-trust. No facts or
circumstances exist which would cause any of them to be liable for the violation
of any Laws including, without limitation, racketeering, unfair competition, or
anti-trust Laws.
(g) Except as set forth in Schedule 2.12(g), all licenses, approvals,
permits, certificates and other Government Authorizations needed or required for
the operation of the Business are set forth on Schedule 2.3. All such
Government Authorizations are in full force and effect, each of the Atlantic New
York is in compliance with all such Government Authorizations, and all such
Government Authorizations have been validly and legally obtained.
Section 2.13 Corrupt Practices. To the knowledge of Seller and Atlantic
-----------------
New York, Atlantic New York has not made, offered or agreed to offer anything of
value to any employees of its customers for the purpose of attracting business
or any foreign or domestic governmental official, political party or candidate
for government office or any of its employees or representatives, nor has it
otherwise taken any action which would cause it to be in violation of the
Foreign Corrupt Practices Act of 1977, as amended, or any law applicable to
United States or foreign election campaign contributions.
Section 2.14 Authority. Except as listed in Schedule 2.14, each of the
---------
Seller and Atlantic New York has the right, power, legal capacity and authority
to enter into, and, if a signatory thereto, perform their respective obligations
in respect of the transactions under this Agreement, the Collateral Documents
and the Atlantic New York Agreement. The execution, delivery and performance of
this Agreement and the Atlantic New York Agreement have been duly authorized by
all necessary action of the Seller and Atlantic New York. Except as set forth
on Schedule 2.14, the execution, delivery and performance of this Agreement, the
Collateral
18
Documents and the Atlantic New York Agreement will not result in a breach of or
constitute a default or result in the loss of any material right or benefit
under:
(a) Any certificate, by-law, agreement or other document to which
Seller or Atlantic New York is a party or by which the Seller or any of its
property is bound; or
(b) Any decree, order or rule of any court of governmental authority
which is binding on the Seller or Atlantic New York or on the property of either
of them.
Section 2.15 Transaction Intermediaries. No agent or broker or other
--------------------------
person acting pursuant to the authority of the Seller or Atlantic New York is
entitled to any commission or finder's fee in connection with the transactions
contemplated by this Agreement.
Section 2.16 Intellectual Property. To the knowledge of the Seller and
---------------------
Atlantic New York, Atlantic New York has not infringed and is not infringing, on
any trade name, trademark, service ▇▇▇▇, copyright, trade secret or patent
belonging to any person, firm or corporation ("Intellectual Property") and no
one has or is infringing any Intellectual Property right of any of them.
Section 2.17 Litigation. All pending or, to the knowledge of the Seller
----------
and Atlantic New York threatened litigation, claims, administrative or judicial
proceedings or investigations by any governmental agency or officials involving
or potentially involving any of Atlantic New York, the Business, the Property,
the Assets, the Shares, this Agreement or any of the transactions contemplated
hereby, as of the date hereof, together with a description of each such
proceeding, is set forth on Schedule 2.17. As of the date hereof, there is no
pending or, to the knowledge of the Seller or Atlantic New York, threatened
litigation, administrative or judicial proceedings or investigation involving
any of Atlantic New York, the Business, the Assets, the Shares except as listed
on Schedule 2.17, which could affect Atlantic New York, the Business, the Assets
or the Shares.
Section 2.18 Management of Atlantic Disposal and Subsidiaries. As of the
------------------------------------------------
date hereof, the persons listed in the preamble to this Article II include the
principal members of the current management of Atlantic New York and hold the
positions set forth next to their respective names below:
Name position
-------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ President and General Manager, Atlantic Disposal
▇▇▇▇▇ ▇▇▇▇▇▇▇ Director of Operations, Atlantic Disposal
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Controller, Atlantic Disposal
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ President, Chief Executive Officer, Brambles USA
19
T. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Vice President, Corporate Development and Acquisitions,
Brambles USA
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Vice President, Health, Safety and Environmental
Affairs, ENSCO
▇▇▇▇▇ ▇▇▇▇▇▇▇ Chief Financial Officer, Brambles USA and Vice
President, Treasurer and Secretary, Atlantic Disposal
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to the Seller that the representations
and warranties contained in this Article III are true on the date hereof.
Section 3.1 Structure. Purchaser is a corporation duly organized and
---------
legally existing in good standing under the laws of Delaware.
Section 3.2 Authorization to Proceed with this Agreement. Purchaser has
--------------------------------------------
the requisite corporate power and authority to execute and deliver this
Agreement and the Atlantic Disposal Agreement and to perform its obligations
hereunder and thereunder. Purchaser has, by proper corporate proceedings, duly
authorized the execution, delivery and performance of this Agreement.
Section 3.3 Binding Effect. This Agreement has been, and on the Closing
--------------
Date the Atlantic Disposal Agreement will be, legal, valid and binding
obligations of Purchaser, enforceable against Purchaser in accordance with their
respective terms.
Section 3.4 Legality of Operation. Except as disclosed in Public
---------------------
Reports, and except as would not reasonably be expected to have a material
adverse effect on the ability of Purchaser to consummate the transactions
contemplated hereby (a "Purchaser Material Adverse Effect"), Purchaser is, and
upon the consummation of the Closing will be, in compliance with all Laws.
Except as disclosed in Schedule 3.4, and except as would not reasonably be
expected to have a Purchaser Material Adverse Effect, Purchaser is and upon the
consummation of the Closing will be, in compliance with all Government
Authorizations. Except as set forth on Schedule 3.4 and except as would not
reasonably be expected to have a Purchaser Material Adverse Effect or which
would invalidate this Agreement or any action taken or to be taken in connection
with this Agreement, with respect to any Law, there are no claims, actions,
suits, or proceedings pending, or, to the knowledge of Purchaser, threatened
against or affecting the Purchaser at law or in equity, or before or by any
federal, state,
20
municipal or other governmental department, commission board, bureau, agency or
instrumentality, wherever located.
Section 3.5 Financing. Purchaser has available to it, as of the date of
---------
this Agreement and as of the Closing, sufficient funds to enable it to
consummate the transactions contemplated by this Agreement, including, without
limitation, the Closing.
Section 3.6 Absence of Intermediaries. No agent, broker, or other person
-------------------------
acting pursuant to Purchaser's authority will be entitled to make any claim
against Seller or Atlantic New York for any commission or finder's fee in
connection with the transactions contemplated by this Agreement.
Section 3.7 Commission Filings. Purchaser has delivered to Seller its
------------------
Form 10-Q for the quarter ending December 31, 1997, its Form 10-K for the fiscal
year ending June 30, 1997, all Form 8-K's, if applicable, filed by it since
December 31, 1997 through the date hereof, and any Proxy Statements or
Registration Statements, if applicable, filed by it since December 31, 1997 (the
"Public Reports").
ARTICLE IV
ADDITIONAL AGREEMENTS OF SELLER, PURCHASER AND ATLANTIC NEW YORK
The Seller covenants and agrees with Purchaser as follows:
Section 4.1 Seller's Access to Records and the Property. The Seller will
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give to Purchaser and its representatives, experts and advisors, from and after
the date of execution of this Agreement and up until Closing, such access during
regular business hours and upon reasonable notice, to the properties of Atlantic
New York (including the Property), and to assets, books, contracts, documents,
records, contracts and customer lists relating to the Business as Purchaser may
reasonably request, and to make available to Purchaser and its representatives,
experts and advisors all additional financial statements of and all information
with respect to the Business that Purchaser may reasonably request, except where
Seller or Atlantic New York reasonably believes that such access may be
prohibited by applicable law. Any such access shall be coordinated exclusively
through Brambles USA's management in Chicago, Illinois. Notwithstanding the
foregoing, Purchaser shall not contact any customer of the Businesses, nor shall
Purchaser contact any counter party to any Material Document, for any reason,
without the prior written consent of Brambles USA. Purchaser and its
representatives shall have the right to copy any information or documentation
the Purchaser is entitled to inspect under this Section 4.1, except as is
reasonably objected to by Seller, Atlantic Disposal and the Subsidiaries.
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Section 4.2 Access to Records and the Property. The Purchaser will give
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to Seller and its representatives, experts and advisors, from and after the date
of Closing, such access during regular business hours and upon reasonable
notice, to the Property, and to the assets, books, contracts, documents,
records, contracts and customer lists relating to the Businesses for the period
prior to the Closing Date as Seller may reasonably request, and to make
available to Seller and its representatives, experts and advisors all additional
financial statements of and all information with respect to the Business that
Seller may reasonably request. If Seller's request causes Purchaser to incur
additional costs, Seller shall reimburse Purchaser for the reasonable costs
incurred in meeting Seller's request.
Section 4.3 Continuation of Businesses. (a) Seller and Atlantic New
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York will operate the Business until the time of Closing using prudent business
judgment so as to preserve the business organization of Atlantic New York.
Atlantic New York shall carry on its business in, and only in, the usual,
regular and ordinary course, consistent with past practice and in substantially
the same manner as heretofore conducted and, to the extent consistent with such
business, use its best efforts to preserve intact its present business
organization, keep available the services of its present officers and employees,
and preserve its relationships with customers, contractors, and others having
business dealings with it to the end that its goodwill and going business shall
be unimpaired at the Closing. The Parties acknowledge the obligations of Seller
under the Atlantic Disposal Agreement.
(b) Prior to the Closing, Seller and Atlantic New York shall not,
without the prior consent of Purchaser, do, cause or permit to occur any one or
more of the following with respect to Atlantic New York:
(i) Enter into or assume any contract or agreement which would
be a Material Document as defined in Section 2.2(a) had the contract or
agreement existed on the date this Agreement was executed, or amend any contract
or agreement which is a Material Document (as defined in Section 2.2(a)) or
forfeit or amend any license or permit or other qualification necessary or
useful to conduct the Business;
(ii) Borrow or agree to borrow any funds or voluntarily incur,
assume or become subject to whether directly or by way of guarantee, capital
lease or otherwise, any obligation for borrowed money or any obligation which
would be treated as long-term debt in accordance with GAAP;
(iii) Make any distribution of assets to its stockholders,
including without limitation cash and cash equivalents; provided, however, that
Atlantic New York may distribute to Seller cash and cash equivalents to the
extent it would not result in negative Net Working Capital;
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(iv) Make any change in any profit-sharing, bonus, deferred
compensation, insurance, pension, retirement or other employee benefit plan;
(v) Enter into any collective bargaining agreement or enter
into any employment contracts or increase the compensation payable to or to
become payable by Atlantic New York after the Closing to any person to be
employed by Atlantic New York after the Closing, except, upon notice, in the
ordinary course of the Businesses upon compensation anniversary dates;
(vi) Fail to pay or discharge when due any material
obligations, liabilities or debts;
(vii) Create or permit the creation of any Encumbrance of any
nature whatsoever (other than Permitted Encumbrances) on any of the Assets or
the Shares;
(viii) Take any action that would be required to be disclosed on
Schedule 2.9 pursuant to Sections 2.9(b), (c), (d), or (e) had it occurred prior
to the date hereof;
(ix) Make any change in its authorized or issued capital stock;
grant any stock option or other right to purchase shares of its capital stock or
other securities; issue or make any commitment to issue any security, including
any security convertible into capital stock; grant any registration rights or
purchase, redeem, retire or make any other acquisition of any shares of its
capital stock or other securities;
(x) Amend its certificate or articles of incorporation or
bylaws (or equivalent governing documents);
(xi) Execute, modify, amend or extend the term of any contract,
agreement or arrangement with any customer in the ordinary course of business
and pursuant to which Atlantic New York would be obligated to make payments or
provide goods or services after the Closing Date in an aggregate amount, or
having an aggregate value, in excess of $100,000;
(xii) Make any modification to any permit applicable to the
Property;
(xiii) Enter into any agreement relating to any merger,
consolidation, combination, spinoff or other similar transaction involving
Atlantic New or otherwise take any action prohibited by Section 4.5.
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Section 4.4 Continuation of Insurance. The Seller will cause Atlantic
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New York to have at the Closing all policies of insurance presently maintained
and insuring any of the Assets against liability and property damage, fire and
other casualty.
Section 4.5 No Solicitation. Unless and until this Agreement is
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terminated without the Closing having taken place neither Seller nor Atlantic
New York will directly or indirectly solicit offers for acquisitions or sales of
Shares or other stock or assets of Atlantic New York or for a merger or
consolidation involving Atlantic New York or respond to inquiries from, share
information with, negotiate with or in any way facilitate inquiries or offers
from, third parties who express or who have heretofore expressed an interest in
acquiring by merger, consolidation or other combination the Businesses or any
assets or properties of Atlantic New York.
Section 4.6 FIRPTA Certificate. Purchaser and the Seller acknowledge
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that the financial provisions of this Agreement are subject to the requirements
of the Foreign Investment in Real Property Tax Act ("FIRPTA"), and that the
Internal Revenue Code ("Code") Sections 1445 and 6039C require Purchaser in
certain circumstances to withhold ten percent (10%) of the amount realized by
the Purchaser. Among other circumstances, Purchaser is not required to withhold
said amount if the Seller furnishes Purchaser with a certificate stating their
U.S. Taxpayer Identification Numbers and that they are not foreign persons
within the meaning of the Code. Accordingly, Seller shall provide to Purchaser
at Closing such certificate as is reasonably necessary to insure that such
withholding is not required under FIRPTA.
Section 4.7 Financial Statements. Prior to the Closing, Seller shall
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deliver (or cause to be delivered) to the Purchaser consolidated financial
statements for Atlantic New York (including consolidated balance sheets for
Atlantic New York and consolidated statements of income, cash flow and retained
earnings) in accordance with GAAP covering each and every full (as of the
Closing) fiscal quarter of Atlantic New York through the Closing.
Section 4.8 Consents and Approvals; Other. As promptly as practicable
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after the date of this Agreement, the Seller and Atlantic New York will make all
filings required to be made by them in order to consummate the transactions
contemplated herein. The Seller and Purchaser shall use all commercially
reasonable efforts to cause the conditions to Closing in Article VI and VII
(including, without limitation, the obtaining of consent to the acquisition by
Purchaser through its acquisition of the Shares of the rights of New York under
the Transfer Station Lease), to be satisfied and to obtain all requisite
approvals, authorizations, and consents to the transactions contemplated hereby,
including the obtaining of all Government Authorizations and other consents
necessary and appropriate to effect the Closing; provided, however, that Seller
and Atlantic New York shall not (except as they may otherwise agree in writing)
be required to pay money other than the reasonable expenses and costs of Seller
and Atlantic New York and third parties to obtain any such consent nor will they
be required to modify or amend any contractual arrangements in a manner adverse
to them to obtain any such consent.
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Section 4.9 Discharge of Excluded Liabilities. At or prior to the
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Closing, Seller, Atlantic Disposal and the Subsidiaries will cause to be
discharged all intercompany obligations between Atlantic New York, on one hand,
and any of Brambles Industries Limited, Brambles USA, Seller, Atlantic Disposal
and any of their respective direct or indirect subsidiaries, on the other hand.
Following the Closing, Seller shall promptly discharge, as they become due, all
remaining Excluded Liabilities, if any, and shall take all steps necessary to
ensure that no Excluded Liability shall become an obligation or liability of
Atlantic Disposal or any Subsidiary.
Section 4.10 SEC Filings. Seller and Atlantic Disposal shall cooperate
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and shall use all reasonable efforts to cause their auditors to cooperate with
all reasonable requests of Purchaser and its auditors necessary to audit or
reaudit all prior periods for activities of Atlantic New York to the extent
necessary to enable Purchaser and/or any affiliate of Purchaser to make periodic
reports pursuant to the Securities Exchange Act of 1934, as amended (the
"Securities Exchange Act"), to make a public offering of its securities under
the Securities Act of 1933, as amended (the "Securities Act"), or to make a
private placement of its securities, and Seller and Atlantic New York hereby
consent to the use of historical financial information, to be included (if
required by the rules and regulations of the Securities and Exchange Commission
(the "Commission") or any applicable state securities law) in any of Purchaser's
or Purchaser's affiliate's filing with the Commission or any state securities
commission under either the Securities Exchange Act or the Securities Act and in
any prospectus or memorandum used in connection with any offering of their
securities. The cooperation of Seller shall include, without limitation, the
execution of any audit representation letters reasonably requested by
Purchaser's auditors. Purchaser shall indemnify and hold harmless Seller and
Atlantic New York against any and all fees and expenses incurred or to be
incurred at any time in the future to comply with the foregoing. Purchaser
acknowledges that neither Seller nor Atlantic New York shall have any
responsibility to any purchaser of securities in Purchaser for any information
provided pursuant to this Section 4.10 and Purchaser shall indemnify and hold
harmless Seller and Atlantic New York and their respective, officers, directors,
employees or representatives in connection with any information provided
pursuant to this Section 4.10 against claims made by any such purchaser of
securities.
Section 4.11 Updated Information. Not less than three days prior to
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the Closing, the Sellers shall provide the Purchaser with a Schedule or
Schedules listing all events and matters occurring after the date hereof which
would have been required to be disclosed on a Schedule to this Agreement if they
had occurred prior to the date hereof, together with a certificate of Sellers to
the effect that, each representation and warranty as supplemented is true and
correct as of the date of the certificate.
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ARTICLE V
ADDITIONAL AGREEMENTS OF PURCHASER AND SELLER
Section 5.1 Payment of Expenses. Purchaser will pay all expenses
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(including legal and accounting fees) incurred by it in connection with the
negotiation, execution and performance of this Agreement and the Collateral
Documents. Except as otherwise specified herein, the Seller and Atlantic New
York will pay all expenses incurred by Seller and Atlantic New York (including
legal and accounting fees) in connection with the negotiation, execution and
performance of this Agreement and the Collateral Documents and the consummation
of the transactions hereunder and thereunder. Additionally, the Purchaser shall
bear the following expenses: (i) filing and other fees payable under the ▇▇▇▇-
▇▇▇▇▇-▇▇▇▇▇▇ Anti-Trust Improvements Act of 1976, as amended, (ii) the costs of
auditing any period requested by Purchaser pursuant to Section 4.10 and (iii)
the cost of the title policies and surveys, if any, with respect to the Property
required by Purchaser as a condition of the Closing.
Section 5.2 Filing of Tax Returns and Payment of Taxes.
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(a) As soon as practicable after the Closing Date, the Seller will
prepare and file or cause to be prepared and filed all appropriate tax returns
that are required to be filed for the operations of Atlantic New York for the
Pre-Closing Tax Period (as defined in Section 5.2(b)) and will timely pay or
cause to be paid the amount of taxes shown to be due on such tax returns. The
books and records of the Seller and Atlantic New York will be maintained, and
the Federal, state and other income tax returns of the "affiliated group" (as
defined in Section 1504(a) of the Code) of which the Seller and Atlantic New
York is a member (the "Seller Group") will be filed, so as to accurately reflect
the operations of Atlantic New York for the Pre-Closing Tax Period. Purchaser
shall prepare and file or cause to be prepared and filed all appropriate tax
returns for the operations of Atlantic New York and its subsidiaries for all
taxable periods after the Pre-Closing Tax Period and will timely pay or cause to
be paid the amount of taxes shown to be due on such tax returns.
(b) For purposes of this Agreement, "Pre-Closing Tax Period" means
----------------------
the period (including all prior taxable years) ending on and including the
Closing Date. In the case of jurisdictions with respect to which a taxable
period of Atlantic New York does not end on the Closing Date, there shall be a
deemed short taxable period ending on and including the Closing Date and a
second deemed short taxable period beginning on and including the day after the
Closing Date. For purposes of allocating gross income and deductions between
deemed short taxable periods, all amounts of income and deduction shall be
deemed to have accrued pro rata during Atlantic New York's actual taxable
period, except for items of income or loss arising from an extraordinary event,
which shall be reflected in the period in which such event occurred, and
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all taxes other than income taxes shall be deemed to have accrued pro-rata
during Atlantic New York's actual tax period.
(c) Purchaser and Seller will cooperate fully with each other in
connection with (i) the preparation and filing of any Federal, state or local
tax returns that include the business and operations of Atlantic New York with
respect to any tax return that includes operations of Atlantic New York within
the Pre-Closing Tax Period, and (ii) any audit examination by any government
taxing authority of the tax returns referred to in clause (i). Such cooperation
shall include, without limitation, the furnishing or making available of
records, books of account or other materials of Atlantic New York necessary or
helpful for the defense against assertions of any taxing authority as to any tax
returns which include operations of Atlantic New York within the Pre-Closing Tax
Period.
ARTICLE VI
CONDITIONS TO PURCHASER'S OBLIGATIONS
The obligations of Purchaser to purchase the Shares shall be subject to the
fulfillment or waiver by the Purchaser at or prior to the time of the Closing of
each of the following items:
Section 6.1 Compliance by Seller and Atlantic New York. The Seller and
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Atlantic New York shall (a) have performed and complied with all of the
obligations and conditions required by this Agreement to be performed or
complied with by them at or prior to the Closing Date; (b) there shall not have
occurred any Material Adverse Change, and (c) all representations and warranties
of Seller and Atlantic New York contained in this Agreement shall have been true
and correct when made, and (d) each representation and warranty made in this
Agreement by Seller and Atlantic New York, shall be true and correct as of the
Closing Date; provided, however, that where the failure to perform such
obligations and/or the failure of representations and warranties to be true and
correct, taken in the aggregate (and including any changes reflected as
supplemental disclosures provided pursuant to Section 4.11), would not have a
Material Adverse Effect, the condition to Closing set forth in subpart 6.1(d)
shall be deemed waived. Purchaser shall have received a Certificate of the
Seller, Atlantic Disposal and the Subsidiaries duly executed by the Chief
Executive and Chief Financial Officers of each Seller, Atlantic Disposal and the
Subsidiaries to such effect.
Section 6.2 Litigation Affecting This Transaction. No order, statute,
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rule, regulation, executive order, injunction, stay, decree or restraining order
shall have been enacted, entered, promulgated or enforced by any court of
competent jurisdiction or governmental or regulatory authority or
instrumentality that prohibits the consummation of the transactions to be
consummated at the Closing; no action, suit, investigation or proceeding by any
governmental or
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regulatory authority or instrumentality shall be pending which seeks to
restrain, prohibit or declare illegal the transactions to be consummated at the
Closing.
Section 6.3 Governmental or Regulatory Consents. All governmental or
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regulatory consents, approval, permits, and authorizations necessary for the
performance by Purchaser and the Seller and Atlantic New York of their
respective obligations at the Closing, including termination of the waiting
period under the HSR Act, if applicable, shall have been obtained, shall
unconditionally permit the consummation of the transactions contemplated to be
effected at the Closing and shall be satisfactory to Purchaser in its sole
discretion.
Section 6.4 Other Consents. The consents set forth on Schedule 6.4
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shall have been obtained, shall unconditionally permit the consummation of the
transactions contemplated to be effected at the Closing and shall be
satisfactory to Purchaser in its sole discretion.
Section 6.5 Closing of Atlantic Disposal Agreement. The closing of
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the transactions contemplated by the Atlantic Disposal Agreement shall have
occurred or shall be occurring concurrently.
ARTICLE VII
CONDITIONS TO SELLER'S OBLIGATIONS
The obligations of the Seller to transfer the Shares in accordance with
this Agreement shall be subject to the fulfillment or waiver in writing by the
Seller at or prior to the time of the Closing of each of the following
conditions:
Section 7.1 Compliance by Purchaser. The Purchaser shall have
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performed and complied in all material respects with all of the obligations and
conditions required by this Agreement to be performed or complied with by it at
or prior to or at the Closing Date. All representations and warranties of
Purchaser contained in this Agreement shall be true and correct in all material
respects at and as of the Closing Date, with the same force and effect as though
made at and as of the Closing Date.
Section 7.2 Litigation Affecting This Transaction. No order, statute,
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rule, regulation, executive order, injunction, stay, decree or restraining order
shall have been enacted, entered, promulgated or enforced by any court of
competent jurisdiction or governmental or regulatory authority or
instrumentality that prohibits the consummation of the transactions to be
consummated at the Closing, and no action, suit, investigation or proceeding by
any governmental or regulatory authority or instrumentality shall be pending
which seeks to restrain, prohibit or declare illegal the transactions to be
consummated at the Closing.
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Section 7.3 Governmental and Regulatory Consents. All governmental or
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regulatory consents, approval, permits and authorizations necessary for the
performance by Purchaser and the Seller, Atlantic Disposal and the Subsidiaries
of their respective obligations at the Closing, including, if applicable,
termination of the waiting period under the HSR Act, shall have been obtained,
shall unconditionally permit the consummation of the transactions contemplated
to be effected at the Closing and shall be satisfactory to Seller in its sole
discretion.
Section 7.4 Other Consents. The consents identified in Schedule 7.4
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shall have been obtained, shall unconditionally permit the consummation of the
transactions contemplated to be effected at the Closing and shall be
satisfactory to Seller in its sole discretion.
Section 7.5 Closing of Atlantic Disposal Agreement. The closing of
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the transactions contemplated by the Atlantic Disposal Agreement shall have
occurred or shall be occurring concurrently.
ARTICLE VII
INDEMNIFICATION
Section 8.1 Indemnification by Seller.
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(a) Seller shall indemnify, defend, protect and hold harmless
Purchaser, its officers, directors, affiliates, subsidiaries, agents, employees,
legal representatives, successors and assigns and Atlantic New York from and
against all claims, damages, actions, suits, proceedings, demands, assessments,
adjustments, penalties, costs and expenses whatsoever (including specifically,
but without limitation, reasonable attorneys' fees and expenses) ("Damages"),
from: (i) any breach of, misrepresentation in, untruth in or inaccuracy in the
representations and warranties by Seller and Atlantic New York set forth in this
Agreement or in any representation or warranty brought current by the
certificates described in Sections 4.11 and 6.1 (without regard to whether such
breaches or failures of representations or warranties had a Material Adverse
Effect); (ii) all events and matters occurring after the date hereof which are
set forth in any updated schedules delivered under Section 4.11 to the extent
that the matter or event reflects a detrimental change to the Business or
Assets, of Atlantic New York or the Shares from the schedules delivered at
execution; however changes which occurred in the ordinary course of business and
not as a result of the Seller's breach of this Agreement shall not be the basis
of an indemnification claim; (iii) nonfulfillment or nonperformance of any
agreement or covenant on the part of Seller or Atlantic New York made in this
Agreement and to be performed by any of them before or after the Closing Date
including potential assessment under paragraph 1.1502-6(b) of the Internal
Revenue Code; and (iv) violation of the requirements of any governmental
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authority relating to the reporting and payment of federal, state, local or
other income, sales, use, franchise, excise or property tax liabilities of the
Seller or Atlantic New York (to the extent such taxes result in a lien on the
Shares or the Assets or Atlantic New York becomes liable for such taxes) or
arising or accrued prior to the Closing Date; and (v) any Excluded Liability.
The Purchaser and the Seller have agreed, for the purposes of determining
whether or not the conditions to the obligations of the Purchaser to close have
been satisfied, pursuant to 6.1(d), that the Purchaser will be obligated to
close notwithstanding breaches of representations or warranties contained in
this Agreement or brought current by the certificate described in 4.11, if such
breaches do not result in a Material Adverse Effect. For the purposes of
indemnification, however, Purchaser shall be entitled to claim, subject to the
limitations set forth in Section 8.1(c), for breaches of representations and
warranties contained in this Agreement or brought current by the certificate
described in Section 4.10, notwithstanding the immateriality of any such breach.
(b) The indemnification provided for in this Section 8.1 shall be
Purchaser's sole and exclusive remedy for any Damages arising out of or relating
to the transactions contemplated by this Agreement, except as set forth in the
next sentence and except insofar as any such Damages are caused by the
fraudulent misconduct of any Seller. The limitations set forth in the
immediately preceding sentence and Section 8.1(c) below shall not apply to any
Damages arising out of any breach of or failure to perform obligations under the
Atlantic Disposal Agreement, Section 4.9 of Article IV hereof, or any failure to
perform covenants required to be performed prior to Closing. This Section is
not intended to limit the remedy of specific performance provided for in Section
1.10.
Without limiting the generality of the first sentence of this
Section 8.1(b), each of Purchaser and Atlantic New York expressly waives and
releases any claim that it may have, now or in the future, against Seller or any
of its affiliates pursuant to CERCLA or any similar state or local law;
provided, however, that nothing in this sentence shall limit any right that the
Purchaser may have under this Agreement, the Atlantic Disposal Agreement or any
Collateral Document, including any right in respect of a breach of a
representation and warranty relating to CERCLA.
(c) Notwithstanding the foregoing, in no event shall the Seller be
liable for any Damages pursuant to Sections 8.1(a)(i) or for a breach of any of
the covenants to be performed after Closing, except for the covenant in Section
4.9 (to which the limitation of liability does not apply) unless the aggregate
amount of such Damages exceeds $150,000, in which case the Seller shall only be
liable for the amount of such Damages in excess of $150,000. Likewise, except as
otherwise provided in Section 8.1(c) Seller shall not be liable for Damages
under Section 8.1(a)(i) or for covenants to be performed after Closing, except
for the covenant in Section 4.9 (to which the limitation of liability does not
apply) in excess of an amount equal to seventy-five percent (75%) of the
Purchase Price.
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Section 8.2 Indemnification by Purchaser. (a) Purchaser agrees that
----------------------------
it will indemnify, defend, protect and hold harmless Seller, and its officers,
shareholders, directors, affiliates, subsidiaries, parents, agents, employees,
heirs, legal representatives, successors and assigns, as applicable, from and
against all Damages incurred by it, as a result of or incident to: (i) any
breach of, misrepresentation in, untruth in or inaccuracy in the representations
and warranties of Purchaser set forth in this Agreement; and (ii) nonfulfillment
or nonperformance of any agreement or covenant on the part of Purchaser made in
this Agreement and to be performed by Purchaser before or after the Closing
Date.
(b) The indemnification provided for in this Section 8.2 shall be the
Seller's sole and exclusive remedy for any Damages arising out of or relating to
the transactions contemplated by this Agreement, except as set forth in the next
sentence and except insofar as any such Damages are caused by the fraudulent
misconduct of Purchaser. The limitations set forth in the immediately preceding
sentence and Section 8.2(c) below shall not apply to any Damages arising out of
any breach of or any failure to perform obligations under the Atlantic Disposal
Agreement or any failure to perform covenants required to be performed prior to
Closing. This Section is not intended to limit the remedy of specific
performance provided for in Section 1.10.
(c) Notwithstanding the foregoing, in no event shall the Purchaser be
liable for any Damages under Section 8.2(a)(i) or for covenants to be performed
after Closing unless the aggregate amount of such Damages exceeds $150,000, in
which case the Purchaser shall only be liable for the amount of such Damages in
excess of $150,000. Likewise, Purchaser shall not be liable for Damages under
Section 8.2(a)(i) or for covenants to be performed after Closing in excess of an
amount equal to seventy-five percent (75%) of the Purchase Price.
Section 8.3 Procedure for Indemnification with Respect to Third Party
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Claims.
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(a) If any third party shall notify a party to this Agreement (the
"Indemnified Party") with respect to any matter (a "Third Party Claim") that may
give rise to a claim for indemnification against any other party to this
Agreement (the "Indemnifying Party") under this Article VIII, then the
Indemnified Party shall promptly notify each Indemnifying Party thereof in
writing; provided, however, that no delay on the part of the Indemnified Party
in notifying any Indemnifying Party shall relieve the Indemnifying Party from
any obligation hereunder unless (and then solely to the extent) the Indemnifying
Party is thereby prejudiced. Such notice shall state the amount of the claim and
the relevant details thereof.
(b) Any Indemnifying Party will have the right to defend the
Indemnified Party against the Third Party Claim with counsel of its choice
satisfactory to the Indemnified Party so long as (i) the Indemnifying Party
notifies the Indemnified Party in writing within ten days after
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the Indemnified Party has given notice of the Third Party Claim that the
Indemnifying Party will indemnify the Indemnified Party pursuant to the
provisions of this Article VIII, as applicable, from and against the entirety of
any adverse consequences (which will include, without limitation, all losses,
claims, liens, and attorneys' fees and related expenses) the Indemnified Party
may suffer resulting from, arising out of, relating to, in the nature of, or
caused by the Third Party Claim, (ii) the Third Party Claim involves only
monetary damages and does not seek an injunction or equitable relief, (iii)
settlement of, or adverse judgment with respect to the Third Party Claim is not,
in the good faith judgment of the Indemnified Party, likely to establish a
precedential custom or practice adverse to the continuing business interests of
the Indemnified Party, and (iv) the Indemnifying Party conducts the defense of
the Third Party Claim actively and diligently.
(c) So long as the Indemnifying Party is conducting the defense of
the Third Party Claim in accordance with Section 8.3(b) above, the Indemnified
Party may retain separate co-counsel at its sole cost and expense and
participate in (but not control) the defense of the Third Party Claim. The
Indemnified Party will not consent to the entry of any judgment or enter into
any settlement with respect to the Third Party Claim without the prior written
consent of the Indemnifying Party (which will not be unreasonably withheld), and
(iii) the Indemnifying Party will not consent to the entry of any judgment or
enter into any settlement with respect to the Third Party Claim without the
prior written consent of the Indemnified Party (which will not be unreasonably
withheld). In the case of (c)(ii) or (c)(iii) above, any such consent to
judgment or settlement shall include, as an unconditional term thereof, the
release of the Indemnified Party from all liability in connection therewith.
(d) If any condition set forth in Section 8.3(b) above is or becomes
unsatisfied, (i) the Indemnified Party may defend against the Third Party Claim
with counsel of its choice and the Indemnifying Party shall have the right to
participate in (but not control) such defense, and (ii) consent to the entry of
any judgment or enter into any settlement with respect to, the Third Party Claim
and any matter it may deem appropriate and the Indemnified Party need not
consult with, or obtain any consent from, any Indemnifying Party in connection
therewith, (iii) the Indemnifying Party will reimburse the Indemnified Party
promptly and periodically for the cost of defending against the Third Party
Claim (including attorneys' fees and expenses), and (iv) the Indemnifying Party
will remain responsible for any adverse consequences the Indemnified Party may
suffer resulting from, arising out of, relating to, in the nature of, or caused
by the Third Party Claim to the fullest extent provided in this Article VIII.
Notwithstanding the above, if the only item in Section 8.3(b) which was not
satisfied is item 8.3(b)(iii), the Indemnified Party will consult with the
Indemnifying Party prior to settling a Third Party Claim.
Section 8.4 Procedure for Non-Third Party Claims. If Purchaser, Seller
------------------------------------
or Atlantic Disposal wishes to make a claim for indemnity under Section 8.1 or
Section 8.2, as applicable, and the claim does not arise out of a third party
notification which makes the provisions of
32
Section 8.3 applicable, the party desiring indemnification ("Indemnified Party")
shall deliver to the party from which indemnification is sought ("Indemnifying
Party") a written demand for indemnification ("Indemnification Demand"). The
Indemnification Demand shall state: (a) the amount of losses, damages or
expenses to which the Indemnified Party has incurred or has suffered or is
expected to incur or suffer to which the Indemnified Party is entitled to
indemnification pursuant to Section 8.1 or Section 8.2, as applicable; and (b)
the nature of the event or occurrence which entitles the Indemnified Party to
receive payment under Section 8.1 or Section 8.2, as applicable. If the
Indemnifying Party wishes to object to an Indemnification Demand, the
Indemnifying Party must send written notice to the Indemnified Party stating the
objections and the grounds for the objections ("Indemnification Objection"). If
no Indemnification Objection is sent within thirty (30) days after the
Indemnification Demand is sent, the Indemnifying Party shall be deemed to have
acknowledged the correctness of the claim or claims specified in the
Indemnification Demand and shall pay the full amount claimed in the
Indemnification Demand within forty-five (45) days of the day the
Indemnification Demand is dated. If for any reason the Indemnifying Party does
not pay the amounts claimed in the Indemnification Demand, within thirty days of
the Indemnification Demand's date, the Indemnified Party may institute legal
proceedings to enforce payment of the indemnification claim contained in the
Indemnification Demand and any other claim for indemnification that the
Indemnified Party may have.
Section 8.5 Survival of Claims. The respective representations and
------------------
warranties of the parties to this Agreement shall survive consummation of the
transactions contemplated by this Agreement as follows: (i) all representations
and warranties pertaining to Excluded Liabilities shall survive until after the
expiration of the applicable statute of limitations on any claim which can be
brought against Atlantic New York by tax authorities or governmental agencies or
governmental units and (ii) all representations and warranties other than those
set forth in (i) above shall survive until the date which is 18 months after the
Closing Date. Notwithstanding the prior sentence which provides that the
representations and warranties expire after certain stated periods of time, if
within the stated period of time, a notice of a claim for indemnification or
Indemnification Demand is given, or a suit or action based upon representation
or warranty is commenced, the Indemnified Party shall not be precluded from
pursuing such claim or action, or from recovering from the Indemnifying Party
(whether through the courts or otherwise) on the claim or action, by reason of
the expiration of the representation or warranty. No investigation made by
Purchaser shall limit in any way Purchaser's rights to recover damages. The
covenants and agreements of the parties set forth in this Agreement to be
performed after Closing shall survive Closing in accordance with their terms.
Section 8.6 Prompt Payment. In the event that any party is required
--------------
to make any payment under this Article VIII, such party shall promptly pay the
Indemnified Party the amount so determined. If there should be a dispute as to
the amount or manner of determination of any indemnity obligation owed under
this Article VIII, the Indemnifying Party shall, nevertheless, pay
33
when due such portion, if any, of the obligation as shall not be subject to
dispute. The portion in dispute shall be paid upon a final and non-appealable
resolution of such dispute. Upon the payment in full of any claim, the
Indemnifying Party shall be subrogated to the rights of the Indemnified Party
against any person with respect to the subject matter of such claim.
Section 8.7 Insurance. If Seller pays an Indemnification Demand,
---------
Purchaser agrees to provide Seller upon Seller's request information concerning
any insurance coverages Purchaser has that could result in an insurance recovery
relating to the event which resulted in the indemnity payment ("Insured
Indemnity Event"). Upon Seller's request, Purchaser shall make a claim with its
insurers for the Insured Indemnity Event. If Purchaser receives any insurance
proceeds from the submitted claim, purchaser shall retain from the insurance
proceeds the amount of Damages from the Insured Indemnity Event not paid to it
by Seller due to the provision in Section 8.1(a) which provides that Seller is
not liable for the first $150,000 of Damages and Purchaser shall pay to Seller
the balance of the insurance proceeds. This Section 8.7 does not impose any
requirement on Purchaser to commence litigation against its insurers, unless
Seller pays all costs and expenses of such litigation.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Nondisclosure by Seller. Seller and Atlantic New York
-----------------------
recognize and acknowledge that they have in the past, currently have, and in the
future will have certain confidential information of Purchaser such as lists of
customers, operational policies, and pricing and cost policies that are
valuable, special and unique assets of Purchaser. Seller and Atlantic New York
agree that for a period of ten (10) years from the date hereof they will not
disclose such confidential information to any person, firm, corporation,
association or other entity for any purpose or reason whatsoever, except to
authorized representatives of Purchaser, unless (i) such information becomes
known to the public generally through no fault of Seller or Atlantic New York,
or (ii) Seller or Atlantic New York is compelled to disclose such information by
a governmental entity or pursuant to a court proceeding. In the event of a
breach or threatened breach by Seller or Atlantic New York of the provisions of
this Section, Purchaser shall be entitled to an injunction against such
disclosure, in whole or in part, such confidential information. Nothing herein
shall be construed as prohibiting Purchaser from pursuing any other available
remedy for such breach or threatened breach, including, without limitation, the
recovery of damages.
Section 9.2 Nondisclosure by Purchaser. Purchaser recognizes and
--------------------------
acknowledges that it has in the past, currently has, and prior to the Closing
Date, will have access to certain confidential information of the Seller and
Atlantic New York, such as lists of customers,
34
operational policies, and pricing and cost policies that are valuable, special
and unique assets of the Seller and Atlantic New York. Purchaser agrees that it
will not utilize such information in the business or operation of Purchaser or
any of its affiliates or for ten (10) years from the date hereof disclose such
confidential information to any person, firm, corporation, association, or other
entity for any purpose or reason whatsoever, unless (i) such information becomes
known to the public generally through no fault of Purchaser or any of its
affiliates, (ii) Purchaser is compelled to disclose such information by a
governmental entity or pursuant to a court proceeding, or (iii) Closing takes
place. In the event of a breach or threatened breach by Purchaser of the
provisions of this Section, Seller and Atlantic New York shall be entitled to an
injunction restraining Purchaser from utilizing or disclosing, in whole or in
part, such confidential information. Nothing contained herein shall be construed
as prohibiting Seller or Atlantic New York from pursuing any other available
remedy for such breach or threatened breach, including, without limitation, the
recovery of damages.
Section 9.3 Assignment; Binding Effect; Amendment. This Agreement and
-------------------------------------
the rights of the parties hereunder may not be assigned (except by operation of
law) and shall be binding upon and shall inure to the benefit of the parties
hereto, and their respective successors, personal representatives and assigns.
This Agreement, upon execution and delivery, constitutes a valid and binding
agreement of the parties hereto enforceable in accordance with its terms and may
be modified or amended only by a written instrument executed by all parties
hereto. Notwithstanding the foregoing, the Purchaser may assign this Agreement
and all of its rights and obligations hereunder to any directly or indirectly
wholly-owned subsidiary of the Purchaser; provided that, in connection with any
such assignment, the Purchaser shall execute an guarantee and suretyship
agreement, in form and substance reasonably satisfactory to the Seller, pursuant
to which the Purchaser shall guarantee and stand surety for all of the
obligations of its assignee hereunder.
Section 9.4 Entire Agreement. This Agreement together with the
----------------
Collateral Documents is the final, complete and exclusive statement and
expression of the agreement among the parties hereto with relation to the
subject matter of this Agreement, it being understood that there are no oral
representations, understandings or agreements covering the same subject matter
as the Agreement. The Agreement supersedes, and cannot be varied, contradicted
or supplemented by evidence of any prior to contemporaneous discussions,
correspondence, or oral or written agreements of any kind, including, without
limitation, the Letter of Intent, dated November 20, 1997 by and among Purchaser
and Brambles USA. The parties to this Agreement have relied on their own
advisors for all legal, accounting, tax or other advice whatsoever with respect
to the Agreement and the transactions contemplated hereby.
Section 9.5 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.
35
Section 9.6 Notices. All notices or other communications required or
-------
permitted hereunder shall be in writing and may be given by depositing the same
in United States mail, addressed to the party to be notified, postage prepaid
and registered or certified with return receipt requested, by overnight courier
or by delivering the same in person to such party.
(a) If to Purchaser, addressed to it at:
Eastern Environmental Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
with a copy (which shall not constitute notice) to:
Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
Philadelphia National Bank Building
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: H. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
(b) If to Seller or Atlantic Disposal:
Brambles USA, Inc.
The Wrigley Building
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
with a copy (which shall not constitute notice) to:
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Notice shall be deemed given and effective the day personally delivered,
the day after being sent by overnight courier and three business days after the
deposit in the U.S. mail of a writing addressed as above and sent first class
mail, certified, return receipt requested, or when actually received, if
earlier. Any party may change the address for notice by notifying the other
parties of such change in accordance with this Section 9.6.
36
Section 9.7 Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the internal laws of the State of Delaware, without
giving effect to any choice or conflict of law provision or rule (whether of the
State of Delaware or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Delaware.
Section 9.8 No Waiver. No delay of or omission in the exercise of any
---------
right, power or remedy accruing to any party as a result of any breach or
default by any other party under this Agreement shall impair any such right,
power or remedy, nor shall it be construed as a waiver of or acquiescence in any
such breach or default, or of or in any similar breach or default occurring
later; nor shall any waiver of any single breach or default be deemed a waiver
of any other breach of default occurring before or after that waiver.
Section 9.9 Time of the Essence. Time is of the essence of this
-------------------
Agreement as well as all dates referred to herein and extensions thereof.
Section 9.10 Captions. The headings of this Agreement are inserted for
--------
convenience only, shall not constitute a part of this Agreement or be used to
construe or interpret any provision hereof.
Section 9.11 Severability. In case any provision of this Agreement
------------
shall be invalid, illegal or unenforceable, it shall, to the extent possible, be
modified in such manner as to be valid, legal and enforceable but so as most
nearly to retain the intent of the parties. If such modification is not
possible, such provision shall be severed from this Agreement. In either case
the validity, legality and enforceability of the remaining provisions of this
Agreement shall not in any way be affected or impaired thereby.
Section 9.12 Construction. The parties have participated jointly in
------------
the negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local or
foreign statute shall be deemed to refer to all rules and regulations
promulgated thereunder, unless the context requires otherwise. The word
"including" means including, without limitation.
Section 9.13 Extension or Waiver of Performance. Either the Seller or
----------------------------------
Purchaser may extend the time for or waive the performance of any of the
obligations of the other, waive any inaccuracies in the representations or
warranties by the other, or waive compliance by the other with any of the
covenants or conditions contained in this Agreement, provided that any such
extension or waiver shall be in writing and signed by the Seller and the
Purchaser.
37
Section 9.14 Liabilities of Third Parties. Nothing in this Agreement,
----------------------------
whether expressed or implied, is intended to confer any rights or remedies under
or by reason of this Agreement on any persons other than the parties to it and
their respective successors, legal representative and assigns, nor is anything
in this Agreement intended to relieve or discharge the obligation or liability
of any third persons to any party to this Agreement, nor shall any provisions
give any third person any rights of subrogation or action over or against any
party to this Agreement.
Section 9.15 Agreement Not Binding Until Fully Executed. This Agreement
------------------------------------------
shall not be binding on any party hereto until the Agreement has been fully
executed.
Section 9.16 Publicity. Prior to the Closing, except as may be required
---------
by law, no party to this Agreement shall issue any press release or otherwise
make any statement with respect to the transactions contemplated by this
Agreement without prior consent from the other party, which shall not be
unreasonably withheld.
Section 9.17 Arbitration.
-----------
(a) Each and every controversy or claim arising out of or
relating to this Agreement shall be settled by arbitration in Wilmington,
Delaware, in accordance with the commercial rules (the "Rules") of the American
Arbitration Association then obtaining, and judgment upon the award rendered in
such arbitration shall be final and binding upon the parties and may be
confirmed in any court having jurisdiction thereof. Notice of the demand for
arbitration shall be filed in writing with the other party to this Agreement,
which such demand shall set forth in the same degree of particularity as
required for complaints under the Federal Rules of Civil Procedure the claims to
be submitted to arbitration. Additionally, the demand for arbitration shall be
stated with reasonable particularity with respect to such demand with documents
attached as appropriate. In no event shall the demand for arbitration be made
after the date when institution of legal or equitable proceedings based on such
claim, dispute or other matter in question would be barred by the applicable
statutes of limitations.
(b) The arbitrators shall have the authority and jurisdiction
to determine their own jurisdiction and enter any preliminary awards that would
aid and assist the conduct of the arbitration or preserve the parties' rights
with respect to the arbitration as the arbitrators shall deem appropriate in
their discretion. The award of the arbitrators shall be in writing and it shall
specify in detail the issues submitted to arbitration and the award of the
arbitrators with respect to each of the issues so submitted.
(c) Within sixty (60) days after the commencement of any
arbitration proceeding under this Agreement, each party shall file with the
arbitrators its contemplated discovery plan outlining the desired documents to
be produced, the depositions to be take, if ordered by the arbitrators in
accordance with the Rules, and any other discovery action sought
38
in the arbitration proceeding. After a preliminary hearing, the arbitrators
shall fix the scope and content of each party's discovery plan as the
arbitrators deem appropriate. The arbitrators shall have the authority to
modify, amend or change the discovery plans of the parties upon application by
either party, if good cause appears for doing so.
(d) The award pursuant to such arbitration will be final,
binding and conclusive.
(e) Counsel to Seller and Purchaser in connection with the
negotiation of and consummation of the transactions under this Agreement shall
be entitled to represent their respective party in any and all proceedings under
this Section or in any other proceeding (collectively, "Proceedings"). Seller
and Purchaser, respectively, waive the right and agree they shall not seek to
disqualify any such counsel in any such Proceedings for any reason, including
but not limited to the fact that such counsel or any member thereof may be a
witness in any such Proceedings or possess or have learned of information of a
confidential or financial nature of the party whose interests are adverse to the
party represented by such counsel in any such Proceedings.
39
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
ATLANTIC OF NEW YORK, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: CEO
BRAMBLES USA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: CEO
ATLANTIC WASTE DISPOSAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: CEO
EASTERN ENVIRONMENTAL SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice-President
40