EXHIBIT 10.19
PURCHASE AGREEMENT
AGREEMENT, dated as of July 3 1996, among MERIDIAN ENVIRONMENTAL SERVICES,
INC., a Michigan corporation (the "Seller"), MERIDIAN INTERNATIONAL, INC., a
Michigan corporation (the "BUYER"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, individually
("▇▇▇▇▇▇".
WITHESSETH:
WHEREAS, Seller is engaged in the business of acid recycling, selling and
distributing industrial chemicals; and
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase
from Seller, certain of the assets and properties of Seller and the business of
Seller upon the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements herein set forth, the parties agree as follows:
ARTICLE I
PURCHASE AND SALE
1.1 PROPERTIES AND ASSETS TO BE SOLD AND PURCHASED. In reliance upon the
representations and warranties contained in this Agreement and in the
attachments hereto and upon the terms and subject to the conditions of this
Agreement, Seller agrees to sell and deliver to Buyer, free and clear of all
liabilities, claims, liens and encumbrances, except as hereinafter expressly
provided, and Buyer agrees to purchase from Seller all of the assets,
properties, goodwill and businesses of Seller as a going concern, of every kind
and description, real, personal and mixed, tangible and intangible, wheresoever
located and whether or not carried or reflected on the books of Seller, owned by
Seller on the Closing Date (as hereinafter defined), except the Excluded Assets
set forth in Section 1.2 hereof. Without limiting the generality of the
foregoing, such assets, properties, goodwill and business (the "Purchased
Assets") shall include all of the following:
(a) All inventories, including, without limitation, inventories in
transit paid for but not yet delivered, raw materials, supplies, work in
process, finished goods and finished parts (the "Inventory");
(b) All machinery and equipment (listed on Exhibit 1), and all parts,
accessories, tools and supplies pertaining thereto located at Seller's
facility at ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the "Machinery and
Equipment");
(c) All vehicles listed on Exhibit 1, accessories, tools and supplies
pertaining thereto (the "Vehicles");
(d) All furniture, fixtures, shelving, office supplies, computers and
equipment and all parts, accessories, tools and supplies pertaining thereto
(the "Office Asset Items");
(e) The real property of Seller located at ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and more particularly described on Exhibit 2 attached
hereto (the "Real Property");
(f) All rights of Seller to the logo presently used by it (but
excluding the name "Meridian Environmental Services"), provided that Seller
makes no representations or warranties with respect to such logo;
(g) All right, title and interest of Seller under the contracts
listed on Exhibit 3 (the "Subject Contracts");
(h) All warranties, guarantees and the like of manufacturers,
contractors, sellers or suppliers which pertain to the Purchased Assets,
to the extent the same are transferable without third party consents;
(i) All interest in and to the telephone numbers and telex numbers if
any, and all listings pertaining to the Seller in all telephone books and
directories; and
(j) The business of Seller as a going concern including its goodwill,
if any, and, subject to Section 1.2(b), all records, books, manuals,
customer lists, supplier lists, permits, franchises, brochures office
supplies, advertising and sales literature, credit information and any and
all other operating data of Seller; provided, however, that all such
records and books shall be available for inspection and copying by Seller
at the offices of Buyer in Detroit, Michigan at all reasonable times for a
proper purpose.
1.2 EXCLUDED ASSETS. Seller shall retain and not sell and deliver to
Buyer and Buyer shall not purchase from Seller only the following properties and
assets of Seller as of the Closing Date (the "Excluded Assets"):
(a) All monies to be received by Seller under this Agreement and all
other rights of Seller hereunder; and
(b) All stock records, corporate charters and seals, minute books,
accounting and financial records, and all returns and records relating to
state and federal income taxes; provided, however, that said documents and
records (solely to the extent they relate to the business of Seller) shall
be available for inspection and copying by Buyer upon the reasonable
request of Buyer;
(c) All accounts receivable accruing prior to the Closing;
(d) All cash and cash equivalents,
(e) All contracts, commitments and agreements not included within the
Subject Contracts;
(f) All claims for refunds of federal, state or local taxes; and
(g) All rights, causes of action and claims accruing, or arising out
of acts or omissions occurring or not occurring, prior to the Closing.
1.3 ASSUMED OBLIGATIONS. Except as set forth below, Buyer shall assume no
liabilities as of the Closing Date. Buyer shall assume and be liable for (a)
all environmental conditions or matters relating to the Purchased Assets or the
business and operations of Seller at the Real Property, including any violations
of Environmental Laws: (i) that occur on or after the Closing Date; (ii) that
are disclosed in the Phase I and Phase II Environmental Assessments and the
Baseline Environmental Assessment prepared for Buyer and Seller by ▇▇▇▇▇▇▇
Environmental Inc. dated May 22, 1996, May 29, 1996 and May 31, 1996,
respectively (the "Environmental Reports"); or (iii) of which ▇▇▇▇▇▇ has actual
knowledge; (b) all obligations under the Subject Contracts to the extent such
obligations accrue from and after the Closing; and (c) all accounts payable
arising out of the purchases of any assets within 30 days prior to the Closing,
except to the extent that such purchases were approved by an officer of Seller
other than ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (collectively the "Assumed Obligations"). Except as
set forth above, Buyer shall assume no liabilities as of the Closing Date.
Seller shall be responsible for all liabilities up through the date of Closing
included but not limited to the following:
(a) All liabilities, contingent or otherwise, which may arise out of
any guarantees or any other instruments or agreements to which Seller is a
party as an endorser, surety or guarantor; and
(b) All liabilities or claims for personal injury or damage to
property and all warranty claims based on or relating to any products sold
or manufactured by Seller prior to the Closing Date, including any and all
costs or attorneys' fees incurred in connection therewith; and
(c) Compliance with all Environmental Laws which in any way relate to
the operation of Seller's business, except as disclosed in the
Environmental Reports or of which ▇▇▇▇▇▇ has actual knowledge.
"Environmental Laws" means all applicable Federal, state and local laws,
regulations and ordinances relative to air quality, water: quality, solid
waste management, hazardous waste management, hazardous or toxic substances
or the protection of human health or the environment, including, the
comprehensive Environmental Response Compensation, and Liability Act of
1980 (42 USC Sec. 9601, ET SEQ.) ("CERCLA"), the Hazardous Material
Transportation Act (49 USC Sec. 1801, ET SEQ.), the Federal Water Pollution
Control Act (33 USC Sec. 1251, ET SEQ.), the Resource Conservation and
Recovery Act of 1976 (42 USC Sec. 6901, ET SEQ.), the Clean Air Act (42 USC
Sec. 7401, ET SEQ.), the Toxic Substances Control Act (15 USC Sec. 2601 ET
SEQ.), the Federal Insecticide, Fungicide, and Rodenticide Act (7 USC Sec.
136, ET SEQ.), as each of these laws may have been amended through the date
of this Agreement, and any analogous state or local statutes and the
regulations promulgated pursuant thereto including, but not limited to, the
Michigan National Resources Protection Act, P.A. 451 of 1994, as amended.
1.4 RELEASE. Buyer hereby releases Seller and its subsidiaries affiliates
and other related entities and any of their respective stockholders,
predecessors, successors, assigns, officers, directors, employees and agents
from any and all liability under Environmental Laws or the environmental
condition of the Purchased Assets or the business of Seller, including but not
limited to, liability under CERCLA (i) that occurs on or after the Closing Date;
or (ii) that are disclosed in the Environmental Reports, arising from or
relating to:
(a) any future environmental contamination of the Real Property or
the Purchased Assets including, but not limited to, groundwater
contamination or any contamination which may emanate from the Real Property
or the Purchased Assets to adjacent properties or the surrounding
environment;
(b) any future generation, transport, storage, disposal, treatment
or other handling, or arrangement therefor, of any waste, materials,
contaminants, pollutants or other
substances that might contaminate the Real Property or the Purchased
Assets, damage the environment or otherwise subject Buyer to liability; and
(c) any future activities at or operation of the Real Property or the
Purchased Assets that in any way might be alleged to fail to comply with
any requirements of any applicable Environmental Laws.
This release shall survive the closing of this transaction.
1.5 CLOSING. The purchase and sale provided for herein shall be
consummated and closed (the "Closing") at the offices of NBD Bank, N.A., 29700
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other place as Seller and Buyer shall
mutually agree upon, on the date of this Agreement. The date of the Closing is
referred to herein as
the "Closing Date."
1.6 PURCHASE PRICE AND PAYMENT. The Purchase Price for the Purchased
Assets (the "Purchase-Price")shall be $700,000, payable as follows:
(a) $550,000 will be paid at Closing by wire transfer of immediately
available funds to an account designated by Seller;
(b) $150,000 will be paid by delivery of Buyer's promissory notes in
the amounts of $100,000 and $50,000 the form of Exhibit 4 attached hereto
(the "Notes"). The Notes will be personally guarantied by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
pursuant to a Guaranty in the form of Exhibit 5 attached hereto (the
"Guaranty") and will be secured by a security interest in all personal
property of Buyer pursuant to a Security Agreement in the form of Exhibit
6 attached hereto (the "Security Agreement"), and a second mortgage on the
Real Property in the form of Exhibit 7 attached hereto (the "Mortgage").
1.7 ALLOCATION OF PURCHASE PRICE. The parties agree that the Purchase
Price shall be allocated among the Purchased Assets in the manner set forth in
Exhibit 8 attached hereto as a part hereof.
1.8 TRANSFER TAXES. All applicable sales and transfer taxes, if any,
arising by reason of the transfer of the Purchased Assets under this Agreement,
will be borne by Seller.
1.9 PRORATIONS. The parties will prorate and apportion as of the Closing
Date general real estate taxes (including supplemental taxes, if any) based on
1995 city, school and county taxes paid by Seller as shown on the latest tax
▇▇▇▇. Prepaid rents, personal property taxes and other charges will be prorated
and apportioned as of the Closing Date. Seller will be charged with the cost of
discharging any monetary liens and they will be discharged as of the Closing
Date. All assessments, transfer taxes and conveyance fees will be charged to and
paid by Seller. Seller will use its best efforts to cause final water, gas,
sewer, electric and all other utility meter readings to be made as of or as
close to the Closing Date as Seller will promptly pay the final bills rendered
on the basis of the final readings and will deliver to Buyer evidence of their
payment.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
OF THE SELLER
The Seller represents and warrants to Buyer that on the date hereof:
2.1 CORPORATE STATUS. The Seller is a corporation duly-organized, validly
existing and in good standing under the laws of the State of Michigan, with full
corporate power and authority to own its assets and conduct its businesses. The
Seller is qualified to transact business in each state or jurisdiction in which
the conduct of its business or ownership of its properties in that state or
jurisdiction requires qualification. Seller has delivered to Buyer complete and
correct copies of Seller's Articles of Incorporation and By-Laws, as amended and
as now in effect.
2.2 AUTHORITY. Seller has the full legal right, power and authority,
without the consent of any other person, to enter into this Agreement and the
other documents delivered in connection herewith and consummate the transactions
contemplated herein and therein, and the execution and delivery of this
Agreement and the other documents delivered in connection herewith and the
consummation of the transactions contemplated herein and therein do not and
shall not violate or conflict with any provision of law, any regulation, order,
decree or judgment of any court or governmental agency, or of the Articles of
Incorporation or By-Laws of the Seller, as amended, or result in the breach or
termination of any provision of or constitute a default under any indenture,
agreement or other instrument to which Seller is a party or by which its or
their properties may be bound.
2.3 CORPORATE AUTHORIZATION AND VALIDITY. Seller has taken all necessary
legal action to authorize and approve the execution, delivery and performance of
this Agreement and all the documents to be delivered in connection herewith and
all transactions contemplated herein and therein. This Agreement has been and
the documents delivered in connection herewith shall be duly executed by Seller
and shall constitute lawful, valid and binding obligations of Seller,
enforceable in accordance with their terms (except as enforcement may be limited
by applicable bankruptcy, insolvency, rearrangement, reorganization or similar
debtor relief legislation affecting the rights of creditors and except that
specific performance is a discretionary, equitable remedy).
2.4 TITLE TO PURCHASED ASSETS. Seller has, and will have, good and
unencumbered marketable title to the Purchased Assets, free and clear of all
liens (other than liens for taxes not yet due and payable) encumbrances or
claims whatsoever, except as set forth in the warranty deed for the Real
Property being delivered by Seller. Except for UCC-l financing statements of
National Canada Finance Corp., releases of which are being delivered by Seller
to Buyer concurrently herewith, no financing statement under the Uniform
Commercial Code has been filed on any of the Purchased Assets and Seller has not
signed any such financing statement or any security agreement, mortgage or other
instrument authorizing any secured party or mortgagee thereunder to file any
such financing statement. Seller is not a party to any consignment agreement
and is in possession of its tangible personal property, all of which is located
at its facilities in Detroit, Michigan..
ARTICLE 3
REPRESENTATION AND WARRANTIES OF BUYER
Buyer represents and warrants to the Seller that on the date hereof:
3.1 ORGANIZATION AND GOOD STANDING. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Michigan.
3.2 AUTHORITY. Buyer has full legal right, power and authority, without
the consent of any other person, to enter into this Agreement and the other
documents delivered in connection herewith and to consummate the transactions
contemplated herein and therein, and the execution and delivery of this
Agreement and the other documents delivered in connection herewith and the
consummation of the transaction contemplated herein and therein do not and shall
not violate or conflict with any provision of law, any regulation, order,
decree, or trier of any court or governmental agency or the Articles of
Incorporation or By-laws of Buyer, as amended, or result in the breach or
termination of any provision or constitute a default under any indenture,
agreement or other instrument to which Buyer is a party or by which its
properties may be bound.
3.3 CORPORATE AUTHORIZATION AND VALIDITY. Buyer has taken all necessary
legal action to authorize and approve the execution, delivery and performance of
this Agreement and all the documents to be delivered in connection herewith and
all transactions contemplated herein and therein. This Agreement has been and
the documents delivered in connection herewith shall be duly executed by Buyer
and shall constitute lawful, valid and binding obligations of Buyer, enforceable
in accordance with their terms (except as enforcement may be limited by
applicable bankruptcy, insolvency, rearrangement, reorganization or similar
debtor relief legislation affecting the rights of creditors and except that
specific performance is a discretionary, equitable remedy).
3.4 Environmental. Buyer and ▇▇▇▇▇▇ represent that to their knowledge
there are no (i) violations of Environmental Laws relating to the Real Property
or the Purchased Asses; and (ii) environmental liabilities not disclosed in the
Environmental Reports.
ARTICLE 4
BUYER'S ACKNOWLEDGMENT
Buyer acknowledges (a): that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the principal shareholder
and chief executive officer of buyer, has been the President and chief operating
officer of Seller for more than ten years and, as a result, has a thorough
knowledge of all aspects of the assets, operations and business of Seller, (b)
that neither Seller nor any of its agents, representatives or attorneys have
made any representations or warranties of any type or nature whatsoever with
respect to any fact, matter or condition relating to any of the Purchased Assets
or the business of Seller, including, without limitation, the environmental
condition of the Purchased Assets or the business of Seller, other than as
specifically set forth in this Agreement, and (c) that Buyer has had an adequate
opportunity to inspect the Purchased Assets and all matters pertaining thereto,
including the Environmental Reports and has reviewed such reports with the
assistance of legal counsel and any other experts Buyer deemed appropriate. By
closing the purchase of the Purchased Assets, Buyer shall be deemed to have
purchased the Purchased Assets in an "AS IS AND WITH ALL FAULTS" condition in
each and every respect (including, without limitation, with respect to the
environmental condition of the Purchased Assets). In addition, notwithstanding
any other provisions of this Agreement, Seller shall have no liability for
breach of any warranty or representation or for indemnification of Buyer as a
result of any matter of which ▇▇▇▇▇▇ has actual knowledge.
ARTICLES
THE SELLERS'S CONDITIONS PRECEDENT
All of the following shall be conditions precedent to the Seller's
obligations to consummate the transaction contemplated by this Agreement:
5.1 TRUTH AND ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties made by Buyer herein shall be accurate and
correct in all material respects on and as of the date of Closing as if made on
and as of the date and the Seller shall have received a certificate dated at the
Closing signed by Buyer to the foregoing effect.
5.2 PERFORMANCE OF AGREEMENTS. Buyer shall have performed all its
covenants and agreements contained herein and required to be performed on or
before the Closing.
5.3 DOCUMENTS TO BE DELIVERED TO BUYER. On or before the Closing Buyer
shall execute and deliver or cause to be delivered all of the Buyer Closing
Documents (as defined herein).
5.4 NO LITIGATION. No suit, action or other proceeding shall be pending
or, to the best knowledge of the Buyer, threatened before any court or
governmental agency seeking to restrain, prohibit or to obtain damage or other
relief in connection with this Agreement or the consummation transaction
contemplated herein, there shall have been no investigation or inquiry made or
commenced by any governmental agency in connection with this Agreement or the
transactions contemplated herein.
ARTICLE 6
BUYER'S CONDITIONS PRECEDENT
All of the following shall be conditions precedent to Buyer's obligations
to consummate the transactions contemplated by this Agreement.
6.1 TRUTH AND ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties made by the Seller contained in this Agreement
shall be accurate and correct in all material respects on and as of the date of
Closing as if made on and as of that date. The Exhibits referred to herein and
the documents and schedules delivered pursuant hereto shall likewise be accurate
and correct in all material respects on and as of the date of Closing as if
prepared on and as of that date.
6.2 MATERIAL ADVERSE EVENTS. The business or property of Seller shall not
have been materially adversely affected as of the Closing in any way as a result
of any casualty or disaster, accident, labor dispute, exercise of the power of
eminent domain, or other governmental act, or any other Act of God or the public
enemy.
6.3 PERFORMANCE OF AGREEMENTS. The Seller shall have performed all its
covenants and agreements contained herein and required to be performed on or
before the Closing.
6.4 DOCUMENTS TO BE DELIVERED BY SELLER. On or before the Closing, Seller
shall execute and deliver or cause to be delivered all of Seller's Closing
Documents, respectively.
6.5 NO LITIGATION. No suit, action or other proceeding shall be pending
or, to the best knowledge of the Seller threatened before any court or
governmental agency seeking to restrain, prohibit or to obtain damages or other
relief in connection with this Agreement or the consummation of the transaction
contemplated herein, there shall have been no investigation or inquiry made or
commenced by any governmental agency in connection with this Agreement or the
transactions contemplated herein.
ARTICLE 7
CLOSING DOCUMENTS AND FUNDS
7.1 SELLER'S CLOSING DOCUMENTS. Seller shall deliver to Buyer on the
Closing. Date the following..(the .1' Seller's Closing documents): ..-
(a) Good and sufficient bills of sale, deeds, assignments and other
instruments of transfer with covenants or warranties as shall be necessary
to assign and transfer to and vest in Buyer good and marketable title to
all the Purchased Assets, free and clear of any and all liabilities, liens,
claims and encumbrances except those specifically permitted by this
Agreement;
(b) All consents of third parties, if any, which are necessary to
effectively transfer the Purchased Assets in the manner provided for
herein, in form and substance satisfactory to counsel for Buyer;
(c) Certificate of the Seller dated the Closing Date certifying that
each of the representations and warranties of the Seller contained herein
are true in all respects as of the Closing Date, that the Seller has
performed all of the covenants and agreements contained herein and required
to be performed as of the Closing Date and that the conditions precedent
set forth in Sections 6.1 through 6.5 hereof have been fulfilled;
(d) Certificate of the Secretary or an Assistant Secretary of the
Seller dated the Closing Date with respect to the incumbency of corporate
officers and their signatures, corporate standing, corporate charter and
by-laws, and corporate director and shareholders resolutions authorizing
and approving this Agreement and the transactions contemplated hereby;
(e) Certificate of Incorporation and all amendments thereto of the
Seller certified by the Secretary of State of the jurisdiction in which the
Seller is incorporated dated not more than thirty (30) days prior to the
Closing Date;
(f) Certificates of good standing for the Seller issued by the
appropriate officials of the jurisdictions in which the Seller is
incorporated and qualified, dated not more than thirty (30) days prior to
the Closing Date;
(g) A legal opinion of Seller's counsel in the form attached hereto
as Exhibit 9; and
(h) Such documents and certificates as may be required by the title
insurance company for the purpose of issuing as of Closing Date its title
insurance policy in the name of Buyer.
7.2 Buyers Closing Documents. Buyers shall deliver to Seller on the
Closing Date the following:
(a) Certificate of the Buyer dated the Closing Date certifying that
each of the representations and warranties of the Buyer contained herein
are true in all respects as of the Closing Date, that the Buyer has
performed all of the covenants and agreements contained
herein and required to be performed as of the Closing Date and that the
conditions precedent set forth in Sections 5.1, 5.2, 5.3 and 5.4 have been
fulfilled;
(b) Certificate of the Secretary or an Assistant Secretary of Buyer
dated the Closing Date with respect to the incumbency of corporate officers and
their signatures, corporate standing, corporate charter and by-laws, and
corporate director resolutions authorizing and approving this Agreement and the
transactions contemplated hereby;
(c) Certificate of Incorporation of Buyer certified by the Secretary
of State of Michigan, dated not more than thirty (30) days prior to the Closing
Date;
(d) Certificate of good standing for Buyer issued by the Secretary of
State of Michigan, dated not more than thirty (30) days prior to Closing
Date; and
(e) The wire transfer, Notes, Guaranty, Security Agreement, Mortgage
and UCC-1 Financing Statements delivered by Buyer pursuant to Section 1.6
hereof.
(f) A legal opinion of Buyer's counsel in the form attached hereto as
Exhibit 10.
ARTICLE 8
INDEMNIFICATION
8.1 IDENTIFICATION BY SELLER. The Seller shall indemnify, defend and hold
harmless Buyer, it successors and assigns, and its officers, directors and
employees from, against and with respect to any claim, liability, obligation,
loss, damage, assessment, judgment, cost or expense including, without
limitation, reasonable attorneys' fees and costs and expenses reasonably
incurred in investigating, preparing, defending against or prosecuting any
litigation or claim, action, suit, proceeding or demand, of any kind or
character, arising out of or in any manner incident, relating or attributable to
(a) any breach or failure of any representation or warranty of the Seller
contained in this Agreement or in any certificate, instrument or transfer of
other document or agreement executed by the Seller in connection with this
Agreement or otherwise made or given in connection with this Agreement, (b) any
failure by the Seller to perform or observer, or-to have performed or observed,
in full any covenant, agreement or condition to be performed or observed by any
of them under this Agreement or under any certificates or other documents or
agreements executed by any of them in connection with this Agreement, (c) any
agreements, contracts, negotiations or other dealings by Seller with any person
concerning the sale of the business of the Seller, (d) any liabilities, except
liabilities with respect to Environmental Matters, of Seller not specifically
assumed by Buyer pursuant to the provisions hereof including, without
limitation, all liabilities based on products liability or warranty claims
relating to products sold or manufactured by Seller prior to the Closing Date,
regardless of when such liability may arise prior to the Closing Date.
8.2 INDEMNIFICATION BY BUYER. Buyer shall indemnify Seller from, against
and with respect to any claim, liability, damage, judgment and expense
(including reasonable attorneys' fees) arising out of or relating to (a) any
breach or failure of any warranty or representation of Buyer or ▇▇▇▇▇▇ contained
herein or made pursuant hereto, or (b) any failure by Buyer to perform in full
any covenant, agreement or condition to be performed by Buyer hereunder, or (C)
any failure of Buyer to fulfill, pay or discharge any obligations, debts or
liabilities assumed by Buyer pursuant to this Agreement (including, without
limitation, liabilities with respect to the environmental condition of the
Purchased Assets or the operation of the business of Seller as described in
Section 1.3 ("Environmental Indemnity").
8.3 LIMIT ON INDEMNIFICATION. Seller shall be liable to the Buyer and the
Buyer shall be liable to the Seller for the full amount of any indemnification
provisions of this Article 9 apply; provided, however, that (i) a party shall
not be liable until the aggregate of all such claims asserted exceeds $25,000;
(ii) in no event will either party be liable to the other for claims of
indemnification in an aggregate amount in excess of $300,000 (except with
respect to Environmental Indemnity), for which there shall be no such
limitation, and (iii) in no event will either party be liable for any claim of
indemnification unless the party seeking indemnification gives written notice of
such claim to the party from whom indemnification is sought within one year
after the Closing Date (except with respect to Environmental Indemnity, as to
which there shall be no limitation); and (iv) the amount of any claim for
indemnification shall be net of any tax or insurance benefits realized by the
party seeking indemnification as a result of the loss.
8.4 DEFENSE OF CLAIM. In case a party (the "Indemnified Party") has
received- actual notice of any claim asserted or any action or administrative or
other proceeding commenced in respect of which claim, action or proceeding for
which indemnity properly may be sought against the other party (the
"Indemnifying Party") pursuant to this Agreement, the Indemnifying Party will
give notice in writing to the Indemnifying Party. Within 15 days after the
earlier of (i) receipt of such notice or (ii) receipt of actual notice by the
Indemnifying Party from sources other than the Indemnified Party, the
Indemnifying Party may give the Indemnified Party written notice of its election
to conduct the defense of such claim, action or proceeding at its own expense.
If the Indemnifying Party has given the Indemnified Party such notice of
election to conduct the defense, the Indemnifying Party may conduct the defense
at its expense, but the Indemnified Party will nevertheless have the right to
participate in the defense, but such participation will be solely at the expense
of the Indemnified Party, without a right of further reimbursement in respect of
such expenses. If the Indemnifying Party has not so notified the Indemnified
Party in writing (within the time above provided) of its election to conduct the
defense of such claim, action or proceeding, the Indemnified Party may (but need
not) conduct (at the Indemnifying Party's expense) the defense of such claim,
action or proceeding. The Indemnified Party may at any time notify the
Indemnifying Party of the Indemnified Party's intention to settle, compromise or
satisfy any such claim, action or proceeding (the defense of which the
Indemnifying Party has not previously elected to conduct) and may make such
settlement, compromise or satisfaction (at the Indemnifying Party's expense)
unless the Indemnifying Party notifies the Indemnified Party in writing (within
15 days after receipt of such notice of intention to settle, compromise or
satisfy) of its election to assume (at its sole expense) the defense of any such
claim, action or proceeding and promptly take appropriate action to implement
such defense. Any settlement, compromise or satisfaction made by the Indemnified
Party, or any such final judgment or decree entered in, any claim, action or
proceeding defended only by the Indemnified Party, regardless of the amount or
terms, will be deemed to have been consented to by, and will be binding on, the
Indemnifying Party as fully as though they alone had assumed the defense and a
final judgment or decree had been entered in such proceeding or action by a
court of competent jurisdiction in the amount of such settlement, compromise,
satisfaction, judgment or decree. If the Indemnifying Party has elected under
this Section 8.4 to conduct the defense of any claim, action or proceeding, then
the Indemnifying Party will be obligated to pay the amount of any adverse final
judgment or decree rendered with respect to such claim, action or proceeding. If
the Indemnifying Party elects to settle, compromise or satisfy any claim, action
or proceeding defended by it, the cost of any such settlement, compromise or
satisfaction will be borne entirely by the Indemnifying Party. The Indemnified
Party and the Indemnifying Party will use all reasonable efforts to cooperate
fully with respect to the defense of any claim, action or proceeding covered by
this Section 8.4
8.5 This Article 8 sets forth the exclusive remedies of Buyer or Seller
for any claim relating to this Agreement or the transactions contemplated by
this Agreement, except in the event of fraud.
ARTICLE 9
9.1 ABSENCE OF BROKER. The Seller represents and warrants to Buyer that
the services of a broker or finder have not been used by Seller in connection
with any of the matters pertaining to this transaction and that no broker's or
finder's fee will become payable by Buyer by reason of the execution of this
Agreement or the consummation of the transaction contemplated herein and arising
out of the acts or omissions of Seller. Seller shall hold harmless and indemnify
Buyer and its officers, directors and employees from and against any claim for
broker's, finder's or financial advisor's fees, including any cost or expense
incurred in connection with the defense of any suit claiming such fees, or in
any other manner pertaining to claims for such fees, which may become payable by
reason of the acts or omissions of the Seller. Buyer shall hold harmless and
indemnify Seller from and against any claim for broker's, finder's or financial
advisor's fees, including any cost or expense incurred in connection with the
defense of any suit claiming such fees, or in any other manner pertaining to
claims for such fees, which may become payable by reason of the acts or
omissions of Buyer.
9.2 GOVERNING LAW. This Agreement shall be construed, interpreted and the
rights of the parties determined in accordance with the laws of the State of
Michigan.
9.3 EXPENSES. Except as set forth in a letter agreement dated March 8,
1996 between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and Meridian National Corporation (see Exhibit
11), each party to this Agreement shall bear its own legal, accounting and other
expenses related to the purchase and sale provided for herein.
9.4 ENTIRE AGREEMENT AND CONSTRUCTION. Except for the agreements
specifically referred to herein, this Agreement (including the Schedules and
Exhibits referred to herein) constitutes the entire agreement among the parties
pertaining to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or written, of the
parties, and there are no warranties, representations or other agreements
between the parties in connection with the subject matter hereof except as set
forth specifically herein. Any representation or warranty made herein which is
based upon the "knowledge" of a party means actual knowledge without
investigation of any officer or director of a party, provided that the knowledge
of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ will not be imputed to, or deemed actual knowledge of,
Seller. No amendment, supplement, modification, waiver or termination of this
Agreement shall be implied or be binding (including, without limitation, any
alleged waiver based on a party's knowledge of any inaccuracy in any
representation or warranty contained herein) unless executed in writing by the
party to be bound thereby. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provision hereof
(whether or not similar), nor shall such waiver constitute a continuing waiver
unless otherwise expressly therein provided.
9.5 BENEFIT. All of the terms and provisions of this Agreement by or for
the benefit of the parties shall be binding upon and inure to the benefit of
their successors and assigns. The rights and obligations provided by this
Agreement shall not be assignable by any party. Except as expressly provided
herein, nothing herein is intended to confer upon any person, other than the
parties and their successors as provided herein, any rights or remedies under or
by reason of this Agreement.
9.6 FORM OF DOCUMENTS. All instruments or documents to be delivered by
any party to this Agreement shall be in a form and content reasonably
satisfactory to the counsel for the party receiving such instrument or document.
Each Exhibit shall be identified by a cover page and initialed on each page on
behalf of the Seller by an officer of or counsel for the Seller. Buyer's
authorized representative (for purposes of identification and to acknowledge
receipt only) shall likewise initial each page thereof. Each Exhibit shall be
deemed an integral part of this Agreement.
9.7 COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
9.8 NOTICES. All notices, requests, demands and other communications under
this Agreement must be in writing and will be deemed duly given, unless
otherwise expressly indicated to the contrary in this Agreement, (i) when
personally delivered, (ii) upon receipt of a telephonic facsimile transmission
with a confirmed telephonic transmission answer back, (iii) three (3) days after
having been deposited in the United States mail, certified or registered, return
receipt requested, postage prepaid, or (iv) one business day after having been
dispatched by a nationally recognized overnight courier service, addressed to
the parties or their permitted assigns at the following addresses (or at such
other address or number as is given in writing by either party to the other) as
follows:
If to Buyer to: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Meridian International, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Seller: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Meridian Environmental Services, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy, in ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
the case of a Benesch, Friedlander, ▇▇▇▇▇▇ & Aronoff
notice to Seller 2300 BP America Building
to: ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
9.9 BULK SALES. Buyer hereby waives compliance with all applicable bulk
sale laws.
9.10 SURVIVAL OF REPRESENTATIONS. WARRANTIES AND COVENANTS. The
representations, warranties, covenants and agreements contained in this
Agreement and in any certificate or instrument provided for herein shall be
deemed to have been remade as of the Closing Date and survive thereafter and
continue in full force and effect after the consummation of the purchase and
sale of the Purchased Assets.
9.11 PRESS RELEASES. Buyer will not issue or cause the publication of any
press release or other public announcement with respect to this Agreement or the
transactions contemplated under this Agreement without the prior consent of
Seller.
9.12 CERTAIN ADJUSTMENTS. If Buyer receives payment from a customer in
respect of goods shipped by Seller, Buyer promptly will remit such amount to
Seller. If Seller receives payment from a customer in respect of goods shipped
by Buyer, Seller promptly will remit such amount to Buyer.
[SIGNATURE PAGE FOLLOWS)
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
and year first above written.
MERIDIAN ENVIRONMENTAL SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its Vice President - Finance
MERIDIAN INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Its President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, INDIVIDUALLY
MERIDIAN ENVIRONMENTAL SERVICES, INC.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
July 3, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Gentlemen:
The purpose of this side letter is to set forth certain amendments to tile
Purchase Agreement between us of this date.
Section 1.6 of the Purchase Agreement is hereby amended to provide that the
Purchase Price of $700,000 shall be payable $500,000 Closing and $200,000 by
delivery of Buyer's promissory note in the amounts of $100,000, $50,000 and
$50,000 (the "Notes"). All three of the Notes wig be personally guaranteed by
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ pursuant to the Guaranty and will be secured pursuant to the
Security Agreement and the Mortgage.
Very truly yours,
MERIDIAN ENVIRONMENTAL
SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Its: Vice-President - Finance
ACCEPTED AND AGREED
MERIDIAN INTERNATIONAL, INC..
By: /s/ ▇▇▇▇▇▇ M, ▇▇▇▇▇▇ - President
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President