EXHIBIT 10.3
ASSET ACQUISITION AGREEMENT
ENTERED INTO BY AND AMONG
EARTHCARE COMPANY, EARTHCARE ENVIRONMENTAL, INC. AND SANTI GROUP OF FLORIDA,
INC. ("SELLER")
AND
SEAGRAVES SEPTIC, LLC ("BUYER")
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is made and entered
into by and among EarthCare Company, a Delaware corporation, SanTi Group of
Florida, Inc., a Georgia corporation, and EarthCare Environmental, Inc., a Texas
corporation, d/b/a Earthcare Company of Florida, hereinafter referred to
collectively as "EarthCare" or "Seller", and Seagraves Septic, LLC, a Florida
limited liability company, hereinafter referred to as "Buyer".
WITNESSETH:
Whereas Seller is the owner of certain assets, hereinafter referred
to as the "Acquired Property," and Buyer wishes to acquire the Acquired Property
from Seller and Seller desires to lease the Acquired Property to Buyer.
Now therefore, for and in consideration of the premises and the
representations, warranties, covenants and agreements contained in this
Agreement, and for other good and valuable consideration, the mutual receipt and
sufficiency of which is hereby acknowledged by the parties hereto, the parties
hereto agree as follows:
1. Purchase and Sale of Acquired Property
A. Upon basis of the representation and warranties contained herein and
subject to the terms and conditions of this Agreement, at the time
of Closing, as hereinafter defined, Seller shall sell, convey,
transfer, assign and deliver to Buyer, and Buyer shall purchase from
Seller, all of the Acquired Property.
B. At the time of Closing, as the purchase price for the Acquired
Property, and in exchange therefore, Buyer shall pay to Seller
$25,000.00 cash.
C. Buyer shall also deliver to EarthCare a note for $625,000.00. The
terms of the note are further described herein.
D. The Acquired Property is further described on SCHEDULED 1 attached
to this Agreement.
E. The Acquired Property is also to include certain intangible assets
including, but limited to, the telephone numbers, cell phone and
pager numbers, and facsimile numbers listed on Schedule 1, the
fictitious names and tradenames "Brownie's," "Brownie's
Environmental Services," "Brownies Sewer & Drain Cleaning Service,"
and "Brownies Septic Tank Contractors," customer lists and service
and customer history files, internal memoranda and technical data,
all as are directly or indirectly related to or used in connection
with the Acquired Property.
2. Closing
Subject to the terms and conditions of this Agreement, the closing of
the purchase of the Acquired Property (the "Closing") shall be effective as of
September 1, 2001, but held on September 6, 2001, at the Orlando offices of
▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Buyer, or at such other time and date as
shall be mutually agreeable to Buyer and Seller. Such time and date is sometimes
referred to herein as the "Closing Date" or the "Closing".
3. Procedure at Closing
The parties hereto agree to take the following steps in the order
listed:
A. Seller shall deliver to Buyer the Acquired Property and such bills
of sale, assignments and other instruments necessary to transfer to
Buyer the Acquired Property.
B. In exchange for the Acquired Property, Buyer shall deliver to Seller
the purchase price set forth in Section 1B, which shall be paid
directly to Bank of America, N.A., pursuant to the following wiring
instruction:
Bank of America, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ABA: ▇▇▇▇▇▇▇▇▇
A/C: 1292000883
Attn: Credit Services
REF: EarthCare Company
4. Note
Terms of Note. The terms of the note agreement are documented in this
Agreement. A separate note agreement is included as SCHEDULE 4 to this
Agreement.
The note will be in the amount of $625,000.00. The note will bear interest
at the prime rate of interest as charged from time to time by Bank of
America, N.A., plus 3%, payable monthly in cash on the last day of each
month. Payment of interest on the note will be sent by check to the Bank
of America, N.A. such that
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they receive the checks on or before the last day of each month as long as
the note is outstanding.
Effective January 1, 2002, if the note has not been repaid in full, the
interest rate charged on the note will be increased by 1.5% per annum with
the same payment terms.
The note will be secured by the liens of Bank of America, N.A. on the
Acquired Property.
For the first two years from the anniversary of the note, no principal
will be due on the note unless Buyer obtains other financing for the
Acquired Property. If Buyer obtains other financing for the property,
Buyer will remit the cash proceeds from such financing to pay the
principal on the note. Seller will apply the proceeds paid by Buyer and
will then arrange for the release of the liens from Bank of America, N.A.
on the specific Acquired Property financed.
After the second anniversary of the note, the note will be repayable in
thirty-six monthly installments of principal and interest as set forth on
Schedule 4A attached hereto. Schedule 4A will be updated as the principal
on the note is repaid.
As long as there is any principal or interest outstanding under the note,
the note will be personally guaranteed by each of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇▇▇.
5. Representation and Warranties of Seller
A. Seller has good and marketable title to all of the Acquired
Property, assets or properties to be transferred and assigned to
Buyer pursuant to this Agreement (herein sometimes collectively
called the "Assets") subject to no mortgage, conditional sales
agreement, charges, liens, or encumbrances other than those listed
on EXHIBIT "A" attached hereto. Seller represents that the condition
of the Acquired Property has been sufficient to enable Seller to
conduct the business for which the Acquired Property is used. Seller
does not make any representations about the condition of the
Property and Buyer acknowledges that the Acquired Property is
purchased as is and where is.
B. There has not been any material change in the condition of the
Acquired Property from the date of the Buyer's inspection to the
Closing Date.
C. The execution and delivery of this Agreement and the other documents
and instruments to be executed and delivered by the Seller pursuant
hereto and the consummation of the transactions contemplated hereby
and thereby have been duly authorized by the Board of Directors and
shareholders of Seller. No other or further corporate act or
proceeding on the part of the Seller and shareholders is necessary
to authorize this Agreement or the other documents and instruments
to be executed and delivered by each of the companies pursuant
hereto or the consummation of the transactions contemplated hereby
and thereby. This Agreement constitutes, and when executed and
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delivered, the other documents and instruments to be executed and
delivered by the Seller pursuant hereto will constitute, valid and
binding agreements of each of the companies, enforceable in
accordance with their respective terms. Seller has obtained the
necessary consent from Bank of America, N.A. to enter into the
transaction contemplated by this Agreement. Seller represents that
the Acquired Property and Acquired Property is not subject to any
liabilities or obligations, except as described in SCHEDULE 5 C.
D. SCHEDULE 6 is a true and complete listing of all written service
agreements, franchises, licenses or other contracts, if any, to
which Seller is a party and which relate to the Acquired Property
and Acquired Property. Except as disclosed on Schedule 6, Seller is
not in material default or alleged to be in material default
thereunder and there exists no condition or event which, after
notice or the lapse of time or both, would constitute a default. The
lease of the Acquired Property and the sale, transfer and assignment
of the Acquired Property will not result in a breach, violation or
default of any contracts relating to the Acquired Property or the
Acquired Property.
E. Seller knows of no oral or written communication, fact, event or
action which exists or has occurred within 90 days prior to Closing,
which would tend to indicate that any of the customers of Seller
intend to terminate their business relationship with Seller.
F. Except as disclosed on EXHIBIT "B", (i) the Seller has complied with
and is not in violation of any federal, state or local law,
regulation, permit, provision or ordinance relating to the
generation, storage, transportation, treatment or disposal of
hazardous, toxic or polluting substances; (ii) has obtained and
adhered to all necessary permits and other approvals necessary to
store, dispose, and otherwise handle hazardous, toxic and polluting
substances; (iii) has reported, to the extent required by federal,
state and local law, all past and present sites where hazardous,
toxic or polluting substances, if any, from the Seller have been
treated, stored or disposed. The Seller has not transported any
hazardous, toxic or polluting substances or arranged for the
transportation of such substances to any location which is listed or
proposed for listing under the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended ("CERCLA"), the
Resource Conservation and Recovery Act, as amended ("RCRA"), or the
Clean Water Act, as amended ("CWA"), or which is the subject of
federal, state or local enforcement actions or other investigations
which may lead to claims against the Seller for clean-up costs,
remedial work, damages to natural resources or for personal injury
claims, including, but not limited to, claims under CERCLA, RCRA or
the CWA which could lead to a claim being made against Buyer or
Seller.
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G. The consummation of the transactions contemplated by this Agreement
and compliance with the provisions hereof will not conflict with or
result in a breach of the terms, conditions or provisions of, or
constitute a breach or default under, any provision of law, any
order of any court or other agency of government, the articles of
incorporation or bylaws of Seller, or any note, debenture, mortgage,
loan agreement or other instrument to which Seller or its
shareholder is a party, or by which it is bound, or result in the
creation or imposition of any lien, charge or encumbrance of any
kind whatsoever on any property or assets to be leased to or
transferred to Buyer pursuant to this Agreement.
H. The Seller is not a party to or bound by any collective bargaining
agreement or any other agreement with a labor union, and there has
been no labor union prior to the date hereof organizing any
employees of the Seller into one or more collective bargaining
units. There is not now, and there has not been prior to the date
hereof, any actual or, to the knowledge of the Seller and its
shareholder, threatened labor dispute, strike or work stoppage which
affects or which may affect the business of the Seller or which may
interfere with its continued operations. Neither the Seller, its
shareholder, nor any employee, agent or representative thereof, have
since the date of formation of the Seller committed any unfair labor
practice as defined in the National Labor Relations Act, as amended,
and there is no pending or, to the knowledge of the Seller and its
shareholder, threatened charge or complaint against the Seller by or
with the National Labor Relations Board or any representative
thereof. There has been no strike, walkout or work stoppage
involving any of the employees of the Seller prior to the date
hereof. Buyer is not obligated, and nothing herein shall be deemed
to be a promise, to hire any employees of Seller. The Seller has
complied in all material respects with applicable laws, rules and
regulations relating to employment, civil rights and equal
employment opportunities, including but not limited to, the Civil
Rights Act of 1964, the FLSA and Title I of the Americans with
Disabilities Act, all as amended. The Seller is and at all times has
been in compliance with the terms and provisions of the Immigration
Reform and Control Act of 1986, as amended (the "Immigration Act").
With respect to each Employee (as defined in 8 C.F.R. 274a.1(f)) of
the Seller for whom compliance with the Immigration Act is required,
the Seller has on file a true, accurate and complete copy of (i)
each Employee's Form I-9 (Employment Eligibility Verification Form)
and (ii) all other records, documents or other papers prepared,
procured and/or retained pursuant to the Immigration Act. The Seller
has not been cited, fined, served with a Notice of Intent to Fine or
with a Cease or Desist Order, nor has any action or administrative
proceeding been initiated or threatened against the Seller by the
Immigration and Naturalization Service by reason of any actual or
alleged failure to comply with the Immigration Act.
I. The Seller does not and has not maintained, and has no liability
with respect to, (a) any Employee Benefit Plan (as defined below)
intended to
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qualify under Code Section 401(a) or 403(a)(i), (b) any
multi-employer plan, as defined in Section 3(37) of ERISA, or (c)
any employee pension benefit plan, as defined in Section 3(2) of
ERISA. EXHIBIT "C" contains a list setting forth each employee
benefit plan or arrangement of the Seller, including but not limited
to employee welfare benefit plans, deferred compensation plans,
stock option plans, bonus plans, stock purchase plans,
hospitalization, disability and other insurance plans, severance or
termination pay plans and policies, whether or not described in
Section 3(3) of ERISA, in which employees, their spouses or
dependents, of the Seller participate ("Employee Benefit Plans")
(true and accurate copies of which, together with the most recent
annual reports on Form 5500 (if any) and summary plan descriptions
with respect thereto, if applicable, were furnished to Buyer). With
respect to each Employee Benefit Plan (i) each has been administered
in all respects in compliance with its terms and with all applicable
laws, including, but not limited to, ERISA and the Code; (ii) no
actions, suits, claims or disputes are pending, or threatened; (iii)
no audits, inquiries, reviews, proceedings, claims or demands are
pending with any governmental or regulatory agency; (iv) there are
no facts which could give rise to any liability in the event of any
such investigation, claim, action, suit, audit, review, or other
proceeding; (v) all reports, returns, and similar documents required
to be filed with any governmental agency or distributed to any plan
participant have been duly or timely filed or distributed; and (vi)
no "prohibited transaction" has occurred within the meaning of the
applicable provisions of ERISA or the Code.
6. Material Contracts
SCHEDULE 6 is a list and brief description, as of Closing, of certain
leases, contracts, commitments, agreements and other documents to which Seller
is a party that relate to the Acquired Property, to the best of Seller's
knowledge. Except for contracts and documents listed on Schedule 6, Seller is
not a party to or bound by any written or oral (i) contracts not made in the
ordinary course of business; (ii) employment contracts, other than terminable at
will; (iii) bonus, pension, profit sharing, retirement, hospitalization,
insurance or other plan providing employee benefits; (iv) leases with respect to
any property, real or personal, whether as Seller or Buyer; (v) continuing
contracts for the future purchase of materials, supplies or equipment in excess
of the requirements of the business related to the Acquired Property; (vi)
contracts or commitment for capital expenditures; (vii) contracts continuing
over a period of more than six months from its date; or (viii) material
contracts necessary to conduct the operations and business related to the
Acquired Property.
7. Employee matters
Seller has generally enjoyed a good employer-employee relationship with
the employees listed on SCHEDULE 7. Seller warrants that there are no known
pending or threatened actions by any of the employees listed on Schedule 7
alleging sex, age, race or other discriminatory practices, no current effort to
organize those employees into collective bargaining units, and no collective
bargaining agreement is in effect.
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For a period of time not to exceed three months after the Closing
Date, Seller will, at no charge or fee to Buyer, continue to employ the
employees listed on Schedule 7 at their current salaries and will lease such
employees to Buyer. Buyer will two days in advance of each weekly payroll
payment date provide Seller with a check to cover the total payroll costs of
such employees. The total payroll cost will include the salaries and wages owed
to the employees, the employer portion of taxes, insurance and benefits and the
employer paid cost of any worker's compensation insurance. Seller shall pay to
each of the employees listed on Schedule 7 within five (5) days following
Closing all vacation pay accrued through Closing. The employees listed on
Schedule 7 will continue to be eligible for participation in Seller's employee
benefit plans for a period not to exceed three months after the Closing Date.
Buyer, at its option, may extend such employee leasing program for up to one
year after the Closing Date or such longer or shorter period as the Seller
agrees to.
8. Insurance
For a period of time not to exceed three months after the Closing
Date, Buyer may participate in the Seller's business vehicle, workers
compensation, property and general liability insurance programs. Buyer will be
charged an amount for such insurance based on the number of vehicles insured as
compared to the total number of vehicles insured by Seller and based on the
value of the other Acquired Property as compared to the total value of property
insured by Seller. Buyer will be responsible for all claim costs that may arise
from such vehicles and other Acquired Property that are not covered by the
Seller's insurance carriers. Payment for claims costs will be made monthly to
Seller and are due within 10 days of receipt of billing. Buyer, at its option,
may extend such participation by Buyer for an additional period of time to be
mutually agreed upon by Seller and Buyer.
9. Licenses
SCHEDULE 9 lists all licenses and permits for the Acquired Property.
All licenses and permits relating to the Acquired Property and the Acquired
Property are in full force and effect, and no violations are or have been
recorded in respect to any thereof, and no proceeding is pending, or to the
knowledge of Seller threatened, to revoke, suspend or otherwise limit such
licenses or permits.
10. Sublease of Orlando property with Seagraves
Seller is currently party to a lease for real property located in
Orlando. Seller will sublease such property to Buyer for the remaining term of
the lease and Seller hereby agrees that Buyer shall make all rent payments under
the sublease directly to the Landlord under the Lease and not to Seller.
11. Litigation
Except as disclosed on SCHEDULE 11, there is no litigation or
material defaults relating to the Acquired Property. Seller is not in any
material default of any order, writ,
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injunction or decree of any court, or any federal, state, municipal or other
governmental department, commission, board, bureau or instrumentality, or any
agreement or obligation to which Seller is a party, all as related to the
Acquired Property.
12. Broker or agent fees
No agent, broker, finder, representative or other person or entity
acting pursuant to authority of the Seller or Buyer will be entitled to any
commission or finder's fee in connection with the origination, negotiation,
execution or performance of the transactions contemplated under this Agreement.
13. No material or adverse change
Except as otherwise disclosed on SCHEDULE 13, since May 31, 2001,
there has not been (i) any material adverse change in the business related to
the Acquired Property; (ii) any sale or other disposition of any of the Acquired
Property; or (iii) any damage, destruction or loss materially and adversely
affecting the Acquired Property.
14. Due authorization and authority
This Agreement constitutes valid and binding obligations of Seller
and Buyer, enforceable in accordance with the terms of this Agreement. Neither
the execution or delivery of this Agreement nor the consummation of the
transaction contemplated hereby will result in any breach of or default (or give
rise to any right of termination, cancellation or acceleration) under any
mortgage, contract, agreement, indenture, will, trust or other instrument which
is either binding upon or enforceable upon Seller or Buyer.
Buyer and Seller have the full power, right and authority to enter
into and perform this Agreement without the consent of any person, entity or
governmental agency, and the consummation of the transaction contemplated by
this Agreement will not result in the breach or termination of any provision of
or constitute a default under any lease, indenture, mortgage, deed of trust or
other agreement or instrument, or any order, decree, statute or restriction to
which Buyer or Seller are a party or by which any of the Acquired Property is
bound or subject.
15. Seller's and Buyer's Covenants
A. Seller and Buyer agree that Seller and Buyer will each provide
access to the other for purposes of obtaining information related to
the Acquired Property. To the extent that any significant personnel
or other resources are needed to obtain any information related to
the Acquired Property, Seller and Buyer will be responsible for
their respective costs.
B. Seller will at Closing provide Buyer with an extract from Seller's
OS2K database in EXCEL format which will contain all Seller's
customer information related to its septic, sewer and drain
services, septic repairs,
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sludge hauling, plumbing, and Vactor business, including service
history information.
C. Seller shall continue to perform its obligations for the Septishield
program after the Closing until all existing contracts are
satisfied. Seller shall pay to Buyer any amounts due (i.e. 50% of
the contract balance) under its Terralift program for repairs made
by Buyer for customers of that program.
D. Seller shall enter into a non-compete agreement with Buyer for
Orange, Osceola, Seminole, Lake, Brevard and Volusia Counties,
Florida. The non-compete shall be for five (5) years with respect to
septic, sewer and drain services, septic repairs, sludge hauling,
plumbing, and Vactor business. Seller shall also release ▇▇▇▇▇
▇▇▇▇▇▇▇▇ from her non-compete with Seller except for the grease trap
service line of business. Additionally, Seller shall provide the
same release for ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, if requested.
E. EarthAmerica, Orlando, Florida and EarthCare Environmental, Inc.
shall enter into an Employment Agreement with ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to act
as the General Manager and Vice President, respectively, for a
period of one (1) year.
F. Buyer shall be required to provide Seller with notice at least two
(2) weeks prior to Closing of any drivers presently employed by
Seller which Buyer does not intend to hire.
G. Buyer may terminate this Agreement by notice to Seller if Buyer is
not able to obtain working capital financing on or before the
Closing, in an amount acceptable to Buyer.
H. All vendor accounts of Seller with respect to the Acquired Property
shall be current at Closing.
16. Taxes
Seller and Buyer agree that all State, City and County personal
property taxes, if any, which are directly applicable to the Assets to be
transferred hereunder, shall be prorated to the Closing Date. Buyer shall pay
only the pro rata share of such taxes applicable to the period subsequent to the
Closing Date. Buyer shall pay all sales and use taxes arising as a result of
this transaction.
17. Indemnification and claims
A. Seller shall, and hereby agree jointly and severally to, indemnify
and hold harmless Buyer at all times from or after the Closing
against and in respect to any Buyer Damages, as hereinafter defined.
Buyer Damages, as used herein, shall include any claims, actions,
demands, losses, costs, expenses, liabilities (joint or several),
penalties and damages, including attorneys'
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fees (including appellate proceedings and paralegal fees) incurred
in investigating or in attempting to avoid or defend same or oppose
the imposition thereof, resulting to Buyer from (a) any inaccurate
representation made in or under this Agreement which survives
Closing; (b) breach of any of the warranties made in or under this
Agreement which survives Closing; (c) breach or default in the
performance of any of the covenants to be performed subsequent to
Closing hereunder; (d) any debts, liabilities or obligations of
Seller whether accrued, absolute, contingent, or otherwise, due or
to become due; and (e) any claims (relating to the Assets or
business of Seller or act or omissions of Seller) of persons or
entities based on facts prior to Closing including, but not limited
to, environmental matters. Such indemnity shall not apply until an
aggregate of Buyer Damages in excess of $5,000.00 has been incurred
by Buyer.
B. Buyer shall, and hereby agrees to indemnify and hold harmless Seller
at all times from or after the Closing against and in respect to any
Seller Damages, as hereinafter defined. Seller Damages, as used
herein, shall include any claims, actions, demands, losses, costs,
expenses, liabilities, penalties and damages, including attorneys'
fees (including appellate proceedings and paralegal fees) incurred
in investigating or in attempting to avoid or defend same or oppose
the imposition thereof, resulting to Seller from (a) any inaccurate
representation made in or under this Agreement which survives
Closing (b) breach of any of the warranties made in or under this
Agreement which survives Closing and (c) breach or default in the
performance of any of the covenants to be performed subsequent to
Closing hereunder. Such indemnity shall not apply until an aggregate
of Seller Damages in excess of $5,000.00 has been incurred by
Seller.
18. Nature and survival of representations
All representations and warranties, indemnities, covenants, and
agreements made by the Seller in this Agreement shall be deemed joint and
several unless indicated otherwise hereunder, and all representations and
warranties made by all parties shall survive the Closing and any investigation
conducted in connection with this Agreement. Each party shall have the right to
fully rely on the representations, warranties, covenants and agreements of the
parties contained in this Agreement or in any other documents or papers
delivered in connection herewith, and each representation, warranty, covenant
and agreement of the parties contained in this Agreement is independent of each
other's representation, warranty, covenant and agreement.
19. Liabilities
Buyer does not assume any liabilities of Seller except as may
otherwise be expressly specified herein. In addition, Buyer assumes no liability
for any advertisements placed by Seller which continue to run subsequent to the
Closing.
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20. Notice
Written notice under this Agreement may be provided by mail,
courier, fax or email to Seller or Buyer at the following addresses:
Seller: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Chief Financial Officer
EarthCare Company
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Buyer: Seagraves Septic, LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
21. Governing law
The laws of the State of Florida will govern this Agreement.
22. Attorneys' fees and costs
In the event it becomes necessary for either party to enforce the
terms of this Agreement, the prevailing party shall be entitled, in addition to
such damages or other relief as may be granted, to recover reasonable attorneys'
fees and costs, such attorneys' fees to include those incurred on any appeal.
23. Jurisdiction, venue and waiver of jury trial
The parties intend that all disputes concerning this Agreement shall
be resolved by arbitration as provided below. However, to the extent arbitration
shall be held by a court of competent jurisdiction to be unenforceable or shall
otherwise be impossible, and any party submits any matter to a court, the
parties agree as follows: Any suit, action or proceeding with respect to this
Agreement shall be brought exclusively in the Florida state courts of competent
jurisdiction in Orange County, Florida, or in the United States District Court
for the Middle District of Florida. ALL PARTIES HEREBY IRREVOCABLY WAIVE ANY
OBJECTIONS WHICH THEY MAY NOW OR HEREAFTER HAVE TO THE PERSONAL JURISDICTION OR
VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT BROUGHT IN ANY SUCH COURT AND HEREBY FURTHER IRREVOCABLY WAIVE ANY
CLAIM THAT SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY HERETO HEREBY FURTHER IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT, ANY DOCUMENT DELIVERED HEREUNDER OR IN CONNECTION THEREWITH,
OR
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ANY TRANSACTION ARISING FROM OR CONNECTED TO ANY OF THE FOREGOING. EACH PARTY
HEREBY REPRESENTS THAT THIS WAIVER IS GIVEN KNOWINGLY, WILLINGLY AND
VOLUNTARILY.
24. Successors and assigns
This Agreement shall be binding upon and inure to the benefit of
Buyer and Seller and to their respective heirs, representatives, successors and
assigns.
SELLER:
EarthCare Company SanTi Group of Florida, Inc.
EarthCare Environmental, Inc.
By:
------------------------------------------ ---------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. Its:
Vice President and Chief Financial Officer ---------------------------
BUYER:
▇▇▇▇▇▇▇▇▇ Septic, LLC
By
---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
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EXHIBIT A
All of the Acquired Property are currently only subject to the liens filed by
Bank of America, N.A. set forth below. Following the Closing pursuant to the
terms of the Asset Purchase Agreement, all of the Acquired Property will remain
subject only to the liens filed by Bank of America, N.A. set forth below.
Debtor File No. Filing Date
------ -------- -----------
EarthCare Company of Florida, Inc. 99 00000 70256 03/31/99
SanTi Group of Florida, Inc. 98 0000 1 50168 07/07/98
EXHIBIT B
NONE.
14
SCHEDULE 1
ACQUIRED PROPERTY
SEE SEPARATE SCHEDULE LISTING THE ASSETS TO BE ACQUIRED. THE FOLLOWING ITEMS ARE
TO BE INCLUDED IN THE ACQUIRED PROPERTY:
1. CURRENT CUSTOMER LIST AND CONTRACTS ASSOCIATED WITH THE ACQUIRED
PROPERTY. CUSTOMER CONTRACTS ARE LISTED ON SCHEDULE 6.
2. GOODWILL RELATED TO ACQUIRED PROPERTY.
3. LICENSES AND PERMITS RELATED TO ACQUIRED PROPERTY LISTED ON
SCHEDULE 9.
4. OBLIGATION FOR THE LEASES DESCRIBED ON SCHEDULE 6.
5. RIGHTS TO THE FOLLOWING TELEPHONE NUMBERS:
TELEPHONE NUMBERS TO BE ASSIGNED TO ▇▇▇▇▇▇▇▇▇ SEPTIC, LLC
▇▇▇▇ SOUTH INTERMEDIA SPRINT
TELEPHONE #/ACCT # TELEPHONE #/ACCT # TELEPHONE #/ACCT #
---------------------------- --------------------------------- ----------------------------
407/841-4321 407/841-7339-fax / 2032612 407/880-0719 / 4078800719823
407/880-0719 / 0562858038001 407/926-0034 352/017-8112 / 3520178112679
407/328-9400 407/425-0688
407/841-0678 407/425-1270
407/872-3693 407/425-2387
386/734-7342 / 0590282431001 407/425-3077
386/738-6800 / 0590282478001 407/425-3541
407/872-0848 407/540-3722
407/540-3729-really 407/872-0848
15
CELL/PAGER NUMBERS TO BE ASSIGNED TO ▇▇▇▇▇▇▇▇▇ SEPTIC, LLC
VERIZON NEXTEL
PAGER #/ACCT # TELEPHONE #/ACCT #
-------------- -------------------
407/▇▇▇-▇▇▇▇ ▇▇▇/948-6323 / 5
407/467-8210 / 20
407/▇▇▇-▇▇▇▇ ▇▇▇/509-2314 / 29
407/▇▇▇-▇▇▇▇ ▇▇▇/509-2334 / 30
407/▇▇▇-▇▇▇▇ ▇▇▇/509-2335 / 31
407/▇▇▇-▇▇▇▇ ▇▇▇/466-9716 / 33
407/▇▇▇-▇▇▇▇ ▇▇▇/402-8883 / 36*
407/▇▇▇-▇▇▇▇ ▇▇▇/468-7453 / 38
407/▇▇▇-▇▇▇▇ ▇▇▇/948-5138 / 59*
407/▇▇▇-▇▇▇▇ ▇▇▇/948-8362 / 200
407/▇▇▇-▇▇▇▇ ▇▇▇/468-7451 / 238*
407/466-2125 / 15
407/466-6826 / 11
407/466-6828 / 7
407/466-6830 / 17
407/948-6295 / 2.
407/948-6896 / 8
16
SCHEDULE 6
MATERIAL CONTRACTS
CUSTOMER CONTRACTS
17
CUSTOMER NAME TYPE OF CONTRACT
------------- ----------------
Orange County Wastewater Division Sewage & Liquid Sludge Hauling
Twin Lakes Manor Jetting
Boca Club Apartments Jetting
Alexan Club @ Maitland Center Lift Station
Waterford East Lift Station
Whisper Lake Apartments Lift Station
Valencia Forest Lift Station
The Willows of Winter Park Lift Station
Southern Pines Lift Station
Silver Terrace Apartments Lift Station
Silver Cove Apartments Lift Station
Seville Place Apartments Lift Station
Kimco Realty Corporation Lift Station
Sabal Palm Lift Station
Ridge Point Apartments Lift Station
Quest North Lift Station
Pershing Point Apartment Lift Station
Orlando Bridge Lift Station
Moorings Condos c/o Sentry Mgmt. Lift Station
Lincoln Properties Lift Station
Maitland Club Apartments Lift Station
Marina Landing Apartments Lift Station
Landtree Place Lift Station
Lake Buena Vista Apartments Lift Station
Ivanhoe Foundation Lift Station
International Plaza Ltd. Lift Station
Kingston Court Condo Lift Station
Hideaway Pines Apartment Trust Lift Station
Hidden Cove Apartments Lift Station
Holy Family Catholic Church Lift Station
The Grove Apartments Lift Station
Golden Pond Lift Station
Forsyth Center Lift Station
Fairview Vista Condominiums Lift Station
Fairwinds Federal Credit Union Lift Station
Fairfield Inn Lift Station
▇▇▇▇▇▇▇ Machine & Tool Lift Station
Department of Juvenile Justice Lift Station
Deltona Landing Lift Station
Cricket Club Apartments Lift Station
Colonial Ridge Lift Station
Chatham Landing Apartments Lift Station
Cedar Creek Apartments Lift Station
C & J Property Management Lift Station
▇▇▇▇▇▇ Park Lift Station
Bermuda Dunes Apartments Lift Station
Bryan's Spanish Cove Lift Station
Kimco Realty /Bayhill Plaza Lift Station
Quality Inn Lift Station
Florida RS, Inc. Lift Station
18
LICENSES
SEE SCHEDULE 9.
OTHER AGREEMENTS
1. Lease with ▇▇▇▇▇▇▇▇▇, Inc. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. for two locations
in Orlando - office building and yard. Seller is to provide Buyer with a
sub-lease agreement on identical terms and conditions as this lease. Buyer
will be responsible for submitting payments timely to the Seller under the
Lease. Seller is ▇▇▇▇▇▇▇▇▇, Inc. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
2. Two leases for security equipment and two contracts for monitoring
services - one lease for office and one lease for yard. Buyer is to assume
these leases. Seller is Sonitrol Leasing, P.O. Box 1228, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
3. Lease for copier machine. Buyer is to assume this lease. Seller is Danka,
P.O. 41647, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
4. Lease for phone equipment. Buyer is to assume this lease. Seller is ▇▇▇▇▇▇
Leasing, ▇.▇. ▇▇▇ ▇▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
5. Contract with Coverall for cleaning services at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
location.
6. Contract with ▇▇▇▇▇▇ Pest Control for services at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
location.
19
SCHEDULE 9
LICENSES AND PERMITS
AUTHORITY TYPE OF LICENSE COMMENTS EXPIRATION
------------------- --------------------- ------------------------------ ----------
Fla. Dept.of Health Cert.of Authorization # SA0980885 Septic Contracting 31-Mar-03
Fla. Dept.of Health Septic Qualifier ▇▇▇▇▇▇▇ (▇▇▇▇) ▇▇▇▇▇▇▇▇▇▇▇ 30-Sep-01
Fla. Dept.of Health Plumbing Qualifier ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 30-Sep-01
Orange County Occupational #3001 Septic Pump / Mfg Proc 30-Sep-01
Orange County Occupational #1803 Reg Plumbing Contractor 30-Sep-01
Orange County Occupational #2600 Manuf.- Processor 30-Sep-01
Orange County Septic System ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ # ▇▇-▇▇▇ ▇-▇▇▇-▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ Annual Operating Septage Service Co. # 48-50 31-Dec-01
Osceola County Occupational #6430 Septic Tank Serv 30-Sep-01
Seminole County Occupational #85 Septic Tanks 30-Sep-01
20
SCHEDULE 11
LITIGATION
NONE
21
SCHEDULE 13
MATERIAL ADVERSE CHANGE SINCE MAY 31, 2001
NONE
22
