EXHIBIT 2.1
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT, dated as of this 11th day of April 1997, among
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries, Inc., a Delaware corporation ("BFI");
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries of Wisconsin, Inc., a Wisconsin corporation and
wholly-owned subsidiary of BFI ("BFIW"); M&N Recycling, Inc., a Wisconsin
corporation and wholly-owned subsidiary of BFI ("MNR"); BFI Waste Systems
of Ohio, Inc., a Delaware corporation and wholly-owned subsidiary of BFI
("BFIO"); ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries of Pennsylvania, Inc., a Delaware
corporation and wholly-owned subsidiary of BFI ("BFIP" and, together with
BFI, BFIW, MNR and BFIO, sometimes referred to collectively as "Sellers"
and on an individual generic basis as a "Seller"); and Superior Services,
Inc., a Wisconsin corporation ("Superior"); Superior of Wisconsin, Inc., a
Wisconsin corporation and wholly-owned subsidiary of Superior ("Superior-
Wisconsin"); Superior of Ohio, Inc., an Ohio corporation and wholly-owned
subsidiary of Superior ("Superior-Ohio"); and Superior Waste Services of
Pennsylvania, Inc., a Pennsylvania corporation and wholly-owned subsidiary
of Superior ("Superior-Pennsylvania" and, together with Superior,
Superior-Wisconsin and Superior-Ohio sometimes referred to collectively as
"Buyers" and on an individual generic basis as a "Buyer").
W I T N E S E T H:
A. WHEREAS, BFIW, MNR, BFIO and BFIP (sometimes referred to
collectively as the "BFI Subsidiaries" and on an individual generic basis
as a "BFI Subsidiary") desire to sell, and Superior-Wisconsin, Superior-
Ohio and Superior-Pennsylvania (sometimes referred to collectively as the
"Superior Subsidiaries" and on an individual generic basis as a "Superior
Subsidiary") desire to purchase, certain assets of the BFI Subsidiaries as
more specifically described below, pursuant to the terms and conditions
set forth herein; and
B. WHEREAS, BFI desires to sell, and Superior desires to
purchase, the outstanding shares ("Shares") of Common Stock ("Stock") of
M&N Disposal, Inc., a Wisconsin corporation and wholly-owned subsidiary of
BFI ("MND"), and BFIP desires to sell, and Superior desires to purchase,
the outstanding Shares of Stock of Homestand Land Corp., a Pennsylvania
corporation and wholly-owned subsidiary of BFIP ("HLC" and, together with
MND sometimes referred to collectively as the "Companies" and on an
individual generic basis as a "Company"), pursuant to the terms and
conditions set forth herein; and
C. WHEREAS, more specifically, BFI, BFIW, MNR and MND conduct
solid waste and recyclables collection, transportation, transfer and
disposal operations in and around Green Bay, Wisconsin, including the
operation of the (i) M&N landfill in Chilton, Wisconsin owned by MND ("M&N
Landfill"); (ii) the M&N collection company located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ owned by MND ("M&N Collection Company Location"); (iii)
the Chilton recycling operation at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
owned by MNR ("Chilton Recycling Company Location"); (iv) the Green Bay
hauling facility and land at 2110 (and/or ▇▇▇▇) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇ currently leased by BFIW but to be purchased by BFIW
("Green Bay Collection Company Location") (collectively, the foregoing
operations are referred to as the "Green Bay Business") and desire to sell
the Green Bay Business through the sale of certain of the assets of BFIW
and all of the assets of MNR to Superior-Wisconsin and the Shares of MND
to Superior, pursuant to the terms and conditions set forth herein; and
D. WHEREAS, more specifically, BFI and BFIO conduct solid
waste and recyclables collection, transfer, transportation and disposal
operations in and around Columbus and Zanesville, Ohio, including the
operation of (i) the Zanesville transfer station at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ owned by BFIO ("Zanesville Transfer
Station"); (ii) the Columbus collection company at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇ leased by BFIO ("Columbus Collection Company Location");
and (iii) the Marietta satellite location at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇ leased by BFIO ("Marietta Satellite Location") (collectively, the
foregoing operations are referred to as the "Columbus Business") and
desire to sell the Columbus Business through the sale of certain of the
assets of BFIO to Superior-Ohio, pursuant to the terms and conditions set
forth herein; and
E. WHEREAS, more specifically, BFI and BFIP conduct solid
waste and recyclables collection, transfer, transportation and disposal
operations in and around DuBois, Pennsylvania, including the operation of
(i) the Green Tree landfill at ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ owned
by HLC ("Green Tree Landfill"); (ii) the Brockway collection company and
material recycling facility at ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
owned by BFIP ("Brockway Location"); and (iii) the State College satellite
location at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ leased by BFIP
("State College Location") (collectively, the foregoing operations are
referred to as the "DuBois Business") and desire to sell the DuBois
Business through the sale of certain of the assets of BFIP to Superior-
Pennsylvania and the Shares of HLC to Superior, pursuant to the terms and
conditions set forth herein.
NOW, THEREFORE, the parties agree as follows:
ARTICLE 1.
TRANSFER OF ASSETS AND SHARES
1.1 Sale of the Green Bay Assets. Subject to the terms and conditions of
this Agreement and contingent upon the simultaneous sale to Superior
of the Shares of MND pursuant to Section 1.2, BFI, BFIW, MND and MNR
hereby agree to sell, convey, transfer and deliver to Superior-
Wisconsin at the Closing (as hereinafter defined) of the sale of the
Green Bay Business all right, title and interest of BFI, BFIW, MND
and MNR in and to all of the business, rights, claims and assets of
every kind, nature, character and description, whether real, personal
or mixed, whether tangible or intangible, whether accrued, contingent
or otherwise and wherever situated (collectively, "Assets") of BFI,
BFIW, MND and MNR employed in connection with the Green Bay Business
(collectively, "Green Bay Assets"), including, but not limited to the
following, free and clear of all liens, mortgages, claims, security
interests, restrictions and encumbrances of any kind and nature
whatsoever (collectively, "Liens"), but excluding the M&N Landfill
(and the real estate purchase options relating thereto) and the
associated Equipment (as hereinafter defined) and the associated
Vehicles (as hereinafter defined) used at the M&N Landfill:
(a) All equipment, machinery, containers, personal property,
compactors and other equipment and spare parts (collectively,
"Equipment") used by BFI, BFIW, MND or MNR in the Green Bay
Business, including the Equipment listed on Schedule 1.1(a)
(collectively, "Green Bay Equipment"), but excluding the
Equipment used by MND in the operation of the M&N Landfill as
set forth and separately and conspicuously identified as such on
Schedule 1.2(a). Schedule 1.1(a) also separately includes a
specific list and description of any items of Equipment recently
used in the Green Bay Business and which have been retained by
BFI or an Affiliate (as hereinafter defined) thereof and
replaced with a substitute item of Equipment in contemplation of
the sale of the Green Bay Business and which substitute items
are also described on Schedule 1.1(a);
(b) All automobiles, trucks and other motor vehicles (collectively,
"Vehicles") used by BFI, BFIW, MND or MNR in the Green Bay
Business, including those Vehicles set forth on Schedule 1.1(b)
(collectively, "Green Bay Vehicles"), but excluding the Vehicles
used by MND in the operation of the M&N Landfill as set forth
and separately and conspicuously identified as such on Schedule
1.2(b). Schedule 1.1(b) also separately includes a specific
list and description of Vehicles recently used in the Green Bay
Business and which have been retained by BFI or an Affiliate and
replaced with a substitute Vehicle in contemplation of the sale
of the Green Bay Business and which substitute Vehicles are also
described on Schedule 1.1(b);
(c) The Material Contracts (as hereinafter defined) for the Green
Bay Business, all of which are set forth on Schedule 1.1(c),
including the July 18, 1995 Stock Purchase Agreement for the
Shares of MND ("Original MND Purchase Agreement"), the Landfill
Royalty Agreement dated July 18, 1995 and the Consultant
Agreements dated July 18, 1995, and all other Contracts (as
hereinafter defined) not required to be listed on
Schedule 1.1(c) relating to the Green Bay Business (collectively
with the Material Contracts, the "Green Bay Contracts");
(d) All permits, licenses, consents, approvals, grants, franchises
and authorizations (collectively, "Permits") required for the
operation of Green Bay Business to the extent transferable or
assignable by law, all of which are set forth on Schedule 1.1(d)
(collectively, "Assumed Green Bay Permits");
(e) The Material Leases (as hereinafter defined) for the Green Bay
Business, all of which are set forth on Schedule 1.1(e), but
specifically excluding the Real Property Lease for the Appleton
satellite location, and all other Leases (as hereinafter
defined) not required to be listed on Schedule 1.1(e) relating
to the Green Bay Business (collectively with the Material
Leases, the "Green Bay Leases");
(f) All advance payments received by BFI, BFIW, MND or MNR for
services to be rendered for or on behalf of customers
(collectively, "Advance Payments") of the Green Bay Business
existing on the Closing Date (as hereinafter defined) for the
sale of the Green Bay Business, which Advance Payments are
preliminarily set forth as of the most recent practicable date
on Schedule 1.1(f) and will be finally set forth on the Net
Working Capital Certificate (as hereinafter defined) for the
Green Bay Business (collectively, "Green Bay Advance Payments");
(g) All accounts receivable (other than related party or Affiliate
receivables) (collectively, "Accounts Receivable") of BFI, BFIW,
MND or MNR respecting the Green Bay Business which exist on the
Closing Date for the sale of the Green Bay Business, which
Accounts Receivable are preliminarily set forth as of the most
recent practicable date on Schedule 1.1(g) and will be finally
set forth on the Net Working Capital Certificate for the Green
Bay Business (collectively, "Green Bay Accounts Receivable");
(h) All office supplies and inventory and other than Assets
otherwise specifically described herein (collectively,
"Inventory") of BFI, BFIW, MND or MNR employed in connection
with the Green Bay Business which exist on the Closing Date for
the sale of the Green Bay Business, which Inventory is
preliminarily set forth, or is summarized by principal asset
category and approximate aggregate dollar amount, as of the most
recent practicable date on Schedule 1.1(h) and will be finally
set forth on the Net Working Capital Certificate for the Green
Bay Business (collectively, "Green Bay Inventory");
(i) The real property , including fixtures, buildings, facilities,
improvements and all appurtenant rights (collectively, "Real
Property") owned or subject to acquisition by BFIW, MND or MNR
and used in the Green Bay Business as described on
Schedule 1.1(i), including the M&N Collection Company Location,
fee simple title to the Chilton Recycling Company Location and
the transfer of the Green Bay Collection Company Location (which
land and building will be purchased by BFIW under its option to
purchase under the Real Property Lease for the Green Bay
Collection Company and subleased to Superior-Wisconsin on an
interim basis until sold to Buyers within 90 days of the Closing
Date for the sale of the Green Bay Business), but specifically
excluding the M&N Landfill (and the real estate purchase options
with respect thereto) which will be retained by MND
(collectively, "Green Bay Real Property");
(j) All invoices, customer lists (including customer phone numbers,
addresses and contact names), vendor lists (including vendor
phone numbers, addresses and contact names), blueprints,
specifications, designs, drawings, and all other documents,
tapes, discs, or other embodiments of such information
(collectively, "Records and Files") of BFI, BFIW, MND or MNR
relating to the Green Bay Business; and
(k) The goodwill associated with the Green Bay Business, including
all causes of action relating to the Green Bay Assets or its
Assumed Liabilities (as hereinafter defined), and all deposits
under Real Property Leases assumed by Buyers or continued by
Companies.
1.2 Sale of Shares of MND. Subject to the terms and conditions of this
Agreement and contingent on the simultaneous sale to Superior-
Wisconsin of the Green Bay Assets pursuant to Section 1.1, BFI agrees
to sell, convey, transfer and deliver to Superior at the Closing Date
for the sale of the Green Bay Business all right, title and interest
of BFI in and to the Shares of MND, free and clear of all Liens.
Schedule 1.2(a) sets forth all Equipment used by MND ("MND
Equipment") in the operation of the M&N Landfill, including a
separate list and description of all replacement Equipment and all
Equipment being replaced in contemplation of the sale of the Green
Bay Business; Schedule 1.2(b) sets forth all Vehicles used by MND
("MND Vehicles") in the operation of the M&N Landfill, including a
separate list and description of all replacement Vehicles and all
Vehicles being replaced in contemplation of the sale of the Green Bay
Business; Schedule 1.2(c) sets forth all Material Contracts of MND;
Schedule 1.2(d) sets forth the Permits held by MND; Schedule 1.2(e)
sets forth all the Material Leases of MND; Schedule 1.2(f) sets forth
all Advance Payments held by MND as of the most recent practicable
date; Schedule 1.2(g) sets forth the Accounts Receivable of MND as of
the most recent practicable date; Schedule 1.2(h) sets forth or
summarizes by asset category and approximate aggregate dollar amount
the Inventory of MND as of the most recent practicable date; and
Schedule 1.2(i) sets forth the Real Property of MND (including the
M&N Landfill, the M&N Collection Company Location (which is set forth
on Schedule 1.1(i)) and the real estate purchase options relating to
the Real Property constituting and surrounding the M&N Landfill). On
the Closing Date for the sale of the Green Bay Business and solely as
a result of the sale to Buyers of the Green Bay Assets under
Section 1.1 (and not as any result of any other distribution by MND),
the Assets of MND shall consist only of the M&N Landfill (and the
associated real estate purchase options) and the Equipment, Vehicles
and other Assets used in the operation of the M&N Landfill, which
retained Assets of MND shall be substantially the same as set forth
in the Schedules to this Section 1.2, except for changes thereto in
the ordinary course of business consistent in amount and nature with
past practice or as otherwise consented to by the Buyers.
1.3 Sale of the Columbus Business. Subject to the terms and conditions
of this Agreement, BFI and BFIO agree to sell, convey, transfer and
deliver to Superior-Ohio at the Closing of the sale of the Columbus
Business all right, title and interest of BFI and BFIO in and to all
of the Assets of BFI and BFIO employed in connection with the
Columbus Business (collectively, "Columbus Assets"), including, but
not limited to the following, free and clear of all Liens:
(a) All Equipment used by BFI or BFIO in the Columbus Business,
including the Equipment specifically listed on Schedule 1.3(a)
(collectively, "Columbus Equipment"). Schedule 1.3(a) also
separately includes a specific list and description of any items
of Equipment recently used in the Columbus Business and which
have been retained by BFI or an Affiliate and replaced with a
substitute item of Equipment in contemplation of the sale of the
Columbus Business and which substitute items are also described
in Schedule 1.3(a);
(b) All Vehicles used by BFI or BFIO in the Columbus Business,
including those Vehicles set forth on Schedule 1.3(b)
(collectively, "Columbus Vehicles"). Schedule 1.3(a) also
separately includes a specific list and description of any
Vehicles recently used in the Columbus Business and which have
been retained by BFI or an Affiliate and replaced with a
substitute Vehicle in contemplation of the sale of the Columbus
Business and which substitute Vehicles are also described in
Schedule 1.3(a);
(c) The Material Contracts for the Columbus Business, all of which
are set forth on Schedule 1.3(c), and all other Contracts not
required to be listed on Schedule 1.3(c) relating to the
Columbus Business (collectively, "Columbus Contracts");
(d) All Permits required for the operation of the Columbus Business
to the extent transferable or assignable by law, all of which
are set forth on Schedule 1.3(d) (collectively, "Assumed
Columbus Permits");
(e) The Material Leases for the Columbus Business, all of which are
set forth on Schedule 1.3(e), including the Real Property Lease
of the Columbus Collection Company Location and the Real
Property Lease of the Marietta Satellite Location, but
specifically excluding the Real Property Lease of the Zanesville
collection company facility at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇, and the other Leases not required to be listed on
Schedule 1.3(e) relating to the Columbus Business (collectively,
"Columbus Leases");
(f) All advance payments received by BFI or BFIO for services to be
rendered for customers of the Columbus Business existing on the
Closing Date for the sale of the Columbus Business, which
Advance Payments are preliminarily set forth as of the most
recent practicable date on Schedule 1.3(f) and will be set forth
on the Net Working Capital Certificate for the Columbus Business
(collectively, "Columbus Advance Payments");
(g) All Accounts Receivable of BFI or BFIO respecting the Columbus
Business existing on the Closing Date for the sale of the
Columbus Business, which Accounts Receivable are preliminarily
set forth as of the most recent practicable date on
Schedule 1.3(g) and will be finally set forth on the Net Working
Capital Certificate for the Columbus Business (the "Columbus
Accounts Receivable");
(h) All Inventory employed in connection with the Columbus Business
which exists on the Closing Date for the sale of the Columbus
Business, which Inventory is preliminarily set forth, or is
summarized by principal asset category and approximate aggregate
dollar amount, as of the most recent practicable date on
Schedule 1.3(h) and will be finally set forth on the Net Working
Capital Certificate for the Columbus Business (the "Columbus
Inventory");
(i) The Real Property owned by BFIO and used in the Columbus
Business as described on Schedule 1.3(i), but specifically
excluding the Real Property constituting the Zanesville Transfer
Station, which will be leased to Superior-Ohio on the Closing
Date of the sale of the Columbus Business pursuant to
Section 8.20 ("Columbus Real Property"), provided that BFI and
BFIO will transfer to Superior-Ohio, without further deed or
action, on the date on which Superior-Ohio has obtained all
requisite final permits to operate the Zanesville Transfer
Station, ownership to all of the improvements and fixtures which
are a part of, or onsite at, the Zanesville Transfer Station;
(j) All Records and Files of BFIO relating to the Columbus Business;
and
(k) The goodwill associated with the Columbus Business, including
all causes of action relating to the Columbus Assets or its
Assumed Liabilities, and all deposits under Real Property Leases
assumed by Buyers or continued by Companies.
1.4 Sale of the DuBois Assets. Subject to the terms and conditions of
this Agreement and contingent upon the simultaneous sale to Superior
of the Shares of HLC pursuant to Section 1.5, BFI and BFIP hereby
agree to sell, convey, transfer and deliver to Superior-Pennsylvania
at the Closing for the sale of the DuBois Business all right, title
and interest of BFI and BFIP in and to all of the Assets of BFI and
BFIP employed in connection with the ▇▇▇▇▇▇ Business (collectively,
"DuBois Assets"), including, but not limited to the following, free
and clear of all Liens:
(a) All Equipment used by BFI or BFIP in the DuBois Business,
including the Equipment specifically listed on Schedule 1.4(a)
("▇▇▇▇▇▇ Equipment"). Schedule 1.4(a) also separately includes
a specific list and description of any items of Equipment
recently used in the DuBois Business which have been retained by
BFI or an Affiliate and replaced with a substitute item of
Equipment in contemplation of the sale of the DuBois Business
and which substitute items are also described in
Schedule 1.4(a);
(b) All Vehicles used by BFI or BFIP in the DuBois Business,
including those Vehicles set forth on Schedule 1.4(b)
(collectively, "DuBois Vehicles"). Schedule 1.4(b) also
separately includes a specific list and description of any
Vehicles recently used in the DuBois Business which have been
retained by BFI or an Affiliate and replaced with a substitute
Vehicle in contemplation of the sale of the DuBois Business and
which substitute Vehicles are also described in Schedule 1.4(b);
(c) The Material Contracts for the DuBois Business, all of which are
set forth on Schedule 1.4(c), including without limitation the
Centre County Contract, and all other Contracts not required to
be listed on Schedule 1.4(c) relating to the DuBois Business
(collectively, "DuBois Contracts");
(d) All Permits required for the operation of DuBois Business to the
extent transferable or assignable by law, all of which are set
forth on Schedule 1.4(d) (collectively, "Assumed DuBois
Permits");
(e) The Material Leases for the DuBois Business, all of which are
set forth on Schedule 1.4(e), including the Real Property Lease
for the State College Location, and all other Leases not
required to be listed on Schedule 1.4(e) relating to the DuBois
Business (collectively, "DuBois Leases");
(f) All advance payments received by BFI or BFIP for services to be
rendered for or on behalf of customers of the DuBois Business
existing on the Closing Date for the sale of the DuBois
Business, which Advance Payments are preliminarily set forth as
of the most recent practicable date on Schedule 1.4(f) and will
be finally set forth on the Net Working Capital Certificate for
the ▇▇▇▇▇▇ Business (collectively, "DuBois Advance Payments");
(g) All Accounts Receivable of BFI or BFIP respecting the DuBois
Business existing on the Closing Date for the sale of the DuBois
Business, which Accounts Receivable are preliminarily set forth
as of the most recent practicable date on Schedule 1.4(g) and
will be finally set forth on the Net Working Capital Certificate
for the ▇▇▇▇▇▇ Business (collectively, "DuBois Accounts
Receivable");
(h) All Inventory employed in connection with the DuBois Business
which exists on the Closing Date for the sale of the DuBois
Business, which Inventory is preliminarily set forth, or is
summarized by principal asset category and approximate aggregate
dollar amount, as of the most recent practicable date on
Schedule 1.4(h) and will be finally set forth on the Net Working
Capital Certificate for the ▇▇▇▇▇▇ Business (collectively,
"DuBois Inventory");
(i) The Real Property owned by BFIP and used in the DuBois Business
as described on Schedule 1.4(i), including the Brockway Location
(collectively, "DuBois Real Property");
(j) All Records and Files of BFIP relating to the DuBois Business;
and
(k) The goodwill associated with the DuBois Business, including all
causes of action relating to the DuBois Assets or its Assumed
Liabilities, and all deposits under Real Property Leases assumed
by Buyers or continued by Companies.
1.5 Sale of Shares of HLC. Subject to the terms and conditions of this
Agreement and contingent on the simultaneous sale to Superior-
Pennsylvania of the DuBois Assets pursuant to Section 1.4, BFIP
hereby agrees to sell, convey, transfer and deliver to Superior at
the Closing of the sale of the DuBois Business all right, title and
interest of BFIP in and to the Shares of HLC, free and clear of all
Liens. Schedule 1.5(a) sets forth all Equipment used by HLC ("HLC
Equipment"), including a separate list and description of all
replacement Equipment and all Equipment being replaced in
contemplation of the sale of the DuBois Business; Schedule 1.5(b)
sets forth all Vehicles used by HLC ("HLC Vehicles"), including a
separate list and description of all replacement Vehicles and all
Vehicles being replaced in contemplation of the sale of the DuBois
Business; Schedule 1.5(c) sets forth all Material Contracts of HLC;
Schedule 1.5(d) sets forth the Permits held by HLC; Schedule 1.5(e)
sets forth all the Material Leases of HLC; Schedule 1.5(f) sets forth
all Advance Payments held by HLC as of the most recent practicable
date; Schedule 1.5(g) sets forth the Accounts Receivable of HLC as of
the most recent practicable date; Schedule 1.5(h) sets forth, or is
summarized by principal asset category and approximate aggregate
dollar amount, the Inventory of HLC as of the most recent practicable
date; and Schedule 1.5(i) sets forth the Real Property of HLC
(including the Green Tree Landfill). On the Closing Date for the
sale of the DuBois Business, the Assets of HLC shall be substantially
the same as set forth in the Schedules to this Section 1.5, except
for changes thereto in the ordinary course of business consistent in
amount and nature with past practice or as otherwise consented to by
the Buyers (or as contemplated by Section 8.23).
1.6 Excluded Assets of Sellers and Companies. Notwithstanding any other
provision of this Agreement, the Ancillary Instruments (as
hereinafter defined) or the Schedules hereto, the Assets to be
conveyed by the Sellers to Buyers hereunder or to be owned by the
Companies, in each case as of the relevant Closing Date for the sale
of the Business as to which Assets relate, shall not include (i) any
deposits or prepaid items, except for the Advance Payments, which
Advance Payments will be reflected and thereby reduce the Net Working
Capital set forth in the Net Working Capital Certificates; (ii) any
corporate record books or similar Records and Files related to the
corporate existence of any of the BFI Subsidiaries; (iii) cash (other
than ▇▇▇▇▇ cash on hand at the various operating locations); (iv)
income tax records of the BFI Subsidiaries (provided that Sellers
shall cooperate with Buyers following the respective Closing Date in
allowing reasonable access to records relating to the Assets or
Businesses for purposes of responding to any applicable Government
Entity, as hereinafter defined); (v) the use of the name "▇▇▇▇▇▇▇▇-
▇▇▇▇▇▇" or any name similar or related thereto; (vi) any trademarks
relating to "▇▇▇▇▇▇▇▇-▇▇▇▇▇▇" or "BFI" or other intellectual property
of the Sellers, including without limitation, any rights to personal
computer or mainframe software; (vii) notes, drafts, accounts
receivable or other obligations for the payment of money, made or
owed by any Affiliate of any of the Sellers; (viii) the underlying
land of the Zanesville Transfer Station (which will be leased to
Superior-Ohio pursuant to Section 8.20); (ix) medical waste hauling
Contracts for the Columbus Business or Contracts relating to Sellers'
Mansfield, Ohio business; (x) the Real Property Lease for the
Germantown, Wisconsin property owned by A-1 Service, Inc. or the
▇▇▇▇▇▇▇▇▇ brothers; (xi) any rights of any Affiliate of any of the
Sellers to any instruments of financial assurance supporting any
performance under any Permit or Material Contract; (xii) in
accordance with Section 15.4, the Assets of MND and HLC supporting
long-term care obligations for the M&N Landfill and the Green Tree
Landfill; (xiii) causes of action not related to the Assets,
Businesses and Assumed Liabilities; and (xiv) Sellers' claims
against, and Accounts Receivable from, REMAC.
1.7 Limitation on Liability for Non-Assigned Contracts, Leases and
Permits. Except as otherwise contemplated by Section 8.4 or as a
result of any violation by Sellers of their representations,
warranties or covenants made in this Agreement or any Ancillary
Instruments, Sellers shall have no liability to Buyers solely as a
result of the non-assignment of any Contract, Lease, or Permit.
ARTICLE 2.
ASSUMPTION AND EXCLUSION OF LIABILITIES
2.1 Limited Specific Liabilities to be Assumed. As used in this
Agreement, the term "Liability" shall mean and include any direct or
indirect indebtedness, guaranty, endorsement, claim, loss, damage,
deficiency, cost, expense, obligation or responsibility, fixed or
unfixed, known or unknown, asserted or unasserted, liquidated or
unliquidated, secured or unsecured. Subject to the terms and
conditions of this Agreement, as partial payment for the purchase of
the Assets and the Shares, on the Closing Date for the sale of each
relevant Business, Buyers shall assume and agree to pay, perform and
discharge the following, and only the following specific Liabilities
of Sellers and the Companies (collectively, "Assumed Liabilities"):
(a) Those Liabilities relating to care and closure of the M&N
Landfill and the Green Tree Landfill being acquired for all
periods after the relevant Closing Date for the sale of the
Business that includes that specific landfill (except for and
excluding Liabilities resulting or arising from a breach of any
representation, warranty, covenant or agreement by any Seller
hereunder or under any Ancillary Instrument which constitutes
the basis for a Claim under Section 10.1);
(b) All Liabilities first arising from events or transactions
occurring after the relevant Closing Date for the sale of the
relevant Business under the Contracts, Leases and Assumed
Permits for such Business (except for and excluding Liabilities
resulting or arising from a breach of any representation,
warranty, covenant or agreement by any Seller hereunder or under
any Ancillary Instrument which constitutes the basis for a Claim
under Section 10.1);
(c) All unpaid and outstanding trade payables of each Business sold
to Buyers arising in the ordinary course of business consistent
in amount and nature with past practice prior to the relevant
Closing Date, all of which will be included (and shall thereby
reduce) at full face amount in the calculation of Net Working
Capital for the relevant Business as contemplated by Section 3.4
(d) All Liabilities of BFI relating to the Green Tree Landfill
specifically set forth in the December 2, 1988 letter agreement
between BFI and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ as and to the extent set forth
in such letter and solely to the extent such Liabilities
(including clay and cover purchase obligations after Closing as
well as favorable disposal pricing) first arise after the
Closing Date for the sale of the ▇▇▇▇▇▇ Business (but not any
Liabilities thereunder prior to such Closing Date or otherwise
owed by Sellers, Companies or their Affiliates to ▇▇.
▇▇▇▇▇▇▇▇▇▇▇ or his Affiliates). The parties acknowledge that
the Liability for payments upon the future permitted expanded
airspace at the Green Tree Landfill will first arise after the
Closing Date for the sale of the ▇▇▇▇▇▇ Business.
2.2 All Other Liabilities Not to be Assumed. Except as and to the
limited extent specifically set forth in Section 2.1 and
notwithstanding any other provision of this Agreement, any Ancillary
Instrument or any listing in the Schedules hereto, Buyers are not
assuming any other Liabilities whatsoever of Sellers or Companies
(and, prior to the relevant Closing Date, the Company whose Shares
are being sold shall transfer to a Seller or an Affiliate thereof all
duties and obligations with respect to all of their Liabilities,
other than the Assumed Liabilities for that Company) and all such
other Liabilities shall be and remain the sole and exclusive joint
and several responsibility of Sellers. Except as specifically
otherwise provided in Section 2.1 and without limiting the
Liabilities not assumed by Buyers or retained by the Companies,
Buyers are not assuming and Sellers shall not be deemed to have
transferred to Buyers and Companies shall not have any post-Closing
duties or obligations with respect to, the following Liabilities of
Sellers or Companies:
(a) Certain Contracts and Leases. Notwithstanding any other
provision of this Agreement, any Ancillary Instrument or any
listing in the Schedules hereto, the Liabilities under and
pursuant to the following Contracts and Leases:
(i) obligations to perform services for customers in
exchange for services or goods from such customers, or
where any Seller or Company has agreed to perform
services as in-kind payment of such Seller's or
Company's obligations to such customers or in other
circumstances outside the ordinary course of business;
(ii) the Real Property Lease for the Appleton satellite
location for the Green Bay Business, the Real Property
Lease of the Germantown, Wisconsin property with A-1
Service, Inc. or the ▇▇▇▇▇▇▇▇▇ brothers, and the Real
Property Lease for the Zanesville collection company
location at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ for the
Columbus Business; and
(iii) any Contract or Lease relating to BFIO's medical waste
hauling for the Columbus Business and any Contract or
Lease relating to BFI's Mansfield, Ohio operations.
(b) Taxes Arising from Transactions. Subject to Section 15.8, any
taxes applicable to, imposed upon or arising out of the sale or
transfer of the Businesses, Assets or Shares to Buyers and the
other transactions contemplated by this Agreement or the
Ancillary Instruments (as hereinafter defined), including but
not limited to, any income, transfer, sales, use, gross receipts
or documentary stamp taxes.
(c) Income and Franchise Taxes. Any Liability of Sellers or the
Companies prior to the relevant Closing Date for federal income
taxes and any state or local income, profit or franchise taxes
(and any penalties or interest due on account thereof).
(d) Insured Claims. Any Liability of Sellers or the Companies
insured against, to the extent such Liability is or will be paid
by an insurer.
(e) Litigation Matters. Any Liability with respect to any action,
suit, claim, complaint, proceeding, arbitration, investigation
or inquiry, whether judicial, civil, criminal or administrative
(collectively, "Litigation") arising from any of Seller's or
Company's operations prior to the relevant Closing Date, whether
or not described in Schedule 5.5.
(f) Transaction Expenses. All expenses and costs incurred by
Sellers or the Companies in connection with this Agreement or
the Ancillary Instruments and the transactions contemplated
herein and therein.
(g) Liability for Breach. Liabilities of Sellers or the Companies
for any breach or failure to perform any of Sellers' or the
Companies' covenants and agreements contained in, or made
pursuant to, this Agreement or the Ancillary Instruments, or,
prior to the relevant Closing, any Contract, Lease or Permit,
whether or not transferred or assumed hereunder, including any
breach arising from the assignment or transfer of Contracts,
Leases or Permits hereunder without the consent of a third party
or Government Entity.
(h) Liabilities to Affiliates. Liabilities of Sellers or the
Companies to their present or former Affiliates (which term as
used herein shall have the same meaning as defined under the
Securities Exchange Act of 1934).
(i) Violation of Laws or Orders. Liabilities of Sellers or the
Companies for any violation of, or failure to comply with, any
statute, law, ordinance, rule or regulation (collectively,
"Laws") or any order, writ, injunction, judgment, plan or decree
(collectively, "Orders") of any court, arbitrator, department,
commission, board, bureau, agency, authority, instrumentality or
other body, whether federal, state, municipal, foreign, local or
other (collectively, "Government Entities").
(j) Environmental Liability. Any Liability occurring or arising
prior to the Closing, whether known or unknown, arising from (a)
environmental conditions, including without limitation, the
presence or actual or threatened release of Hazardous Substances
at any property now or previously owned, operated or leased by
Sellers, the Companies, any predecessor in interest or in
connection with the Business (whether into the air, soil, ground
or surface waters on or off-site); (b) the off-site
transportation, storage, treatment, recycling, or disposal of
Hazardous Substances generated by the Sellers, the Companies,
any predecessor in interest or in connection with the Business
or, during the Sellers' or Companies' tenure at any property now
or previously owned, operated or leased by the Sellers or the
Companies, or (c) violations of any Environmental Law by the
Sellers or the Companies.
(k) Other Liabilities. Liabilities respecting workers compensation,
employee compensation, pension, profit sharing, deferred
compensation or other qualified or non-qualified benefit
programs (including Sellers' or Companies' group health
insurance plan), Liabilities for current or deferred income
taxes of Sellers or Companies, Sellers' obligations to Messrs.
▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ respecting the original purchase of MNR
existing, accrued or arising prior to the Closing Date for the
sale of the Green Bay Business; Liabilities for personal injury
or property damage claims involving services sold or provided by
Sellers or Companies prior to the relevant Closing Date.
ARTICLE 3.
PURCHASE PRICE
3.1 Purchase Price; Payment.
(a) Purchase Price. The total aggregate cash purchase price
for all of the Businesses (including the Green Bay Assets, the MND
Shares, the Columbus Assets, the ▇▇▇▇▇▇ Assets and the HLC Shares)
subject to acquisition by Buyers hereunder, if all of such Businesses
are acquired, shall be equal to Fifty-Six Million Seven Hundred Six
Thousand Dollars ($56,706,000), plus the Final Net Working Capital of
each respective Business so purchased as of the Closing thereof
determined in accordance with Section 3.4, and shall also include the
Buyers' assumption of the Assumed Liabilities with respect to such
Businesses. Buyers shall only be obligated to pay to Sellers that
portion of the aggregate purchase price which is allocated to the
respective Business being purchased as set forth in Schedule 3.1
hereto. Buyers shall not be liable for the purchase price allocated
to any Business which is not purchased by Buyers.
(b) Payment. At the Closing for the sale of each respective
Business, Buyers shall pay by wire transfer of immediately available
federal funds to the Seller(s) designated by BFI the portion of the
stated cash purchase price respecting the Assets and Shares then
being sold as set forth on Schedule 3.1 hereto, provided that only
75% of the Estimated Net Working Capital (as defined below) of the
Business being sold shall be paid by Buyers to BFI at the Closing for
the sale of such Business in accordance with Section 3.4.
3.2 Specific Allocation of Purchase Price to Assets Acquired. The
purchase price payable under this Article 3 (including the assumption
by Buyers of the Assumed Liabilities) shall be allocated among the
Assets in accordance with Section 338 of the Internal Revenue Code of
1986, as amended (the "Code"), and the regulations promulgated
thereunder, all as set forth on Schedule 3.2 to be mutually agreed
upon and delivered prior to each relevant Closing (each, a "Purchase
Price Allocation Schedule"). The parties further agree that they
will irrevocably elect to treat the purchase of the Shares as asset
purchases pursuant to Code Section 338(h)(10) and will mutually
execute Forms 8023-A within the prescribed time periods. The parties
further agree that they will follow and use such allocation in all
tax returns, filings or other related reports made by them to any
Government Entity, will not take a position for income tax purposes
which is inconsistent with this Agreement or the mutually agreed upon
allocation of purchase price set forth in any Purchase Price
Allocation Schedule unless so imposed by the Internal Revenue Service
("IRS"). To the extent that disclosures of these allocations are
required to be made by the parties to the IRS under the provisions of
Section 1060 of the Code or any regulations thereunder, Buyers and
Sellers will disclose such reports to the other prior to filing with
the IRS.
3.3 Contingent Purchase Price for Expansion at Green Tree Landfill.
Subject to the terms and conditions of this Agreement, immediately
after thirty (30) days following the date of publication in the
Pennsylvania Bulletin of the final issuance to HLC or any Affiliate
of Buyers, provided no appeal thereof or objection thereto is then
filed or pending with any Government Entity (other than an appeal by
Superior or an Affiliate) and all other necessary Permits are in
hand, of a satisfactory "Permit for Solid Waste Disposal Facility" by
the Pennsylvania Department of Environmental Protection for the
expansion of permitted non-contiguous horizontal airspace at HLC's
Green Tree Landfill, Buyers shall pay BFI in immediately available
funds the following amounts based on the amount of cubic yards
actually so permitted for expansion: (i) if less than 10.0 million
cubic yards are actually permitted for expansion in accordance with
this Section 3.3, then no contingent purchase price payment will be
due or payable by Buyers to BFI and (ii) if there shall be 10.0
million or more cubic yards actually permitted for expansion in
accordance with this Section 3.3, then the amount of the contingent
purchase price payable by Buyers to BFI shall be equal to the sum of
(a) $1,000,000 plus (b) the dollar amount arrived at by multiplying
$1,000,000 by a fraction, the numerator of which shall be the number
of cubic yards over 10.0 million actually permitted for expansion in
accordance with this Section 3.3 and the denominator of which shall
be 8,500,000 (for example, if 12,000,000 cubic yards are actually
permitted for expansion in accordance with this Section 3.3, the
contingent purchase price payable by Buyers to BFI would be equal to
$1,235,294); provided that in no event shall the aggregate total
contingent purchase price payable by Buyers to BFI hereunder under
any circumstances exceed Two Million Dollars ($2,000,000). Buyers
will use their best commercially reasonable efforts to seek such
permitted expansion as promptly as commercially practicable after the
Closing of the sale of the ▇▇▇▇▇▇ Business.
3.4 Adjustment of the Purchase Price. The stated cash purchase price for
each of the respective Businesses as set forth in Schedule 3.1 shall
be adjusted in accordance with the following provisions:
(a) At least five (5) days prior to the scheduled Closing Date for
the sale of each respective Business, Sellers shall, in
consultation with Buyers and providing Buyers with all relevant
supporting information and work papers, deliver to Buyers, a
certificate (a "Net Working Capital Certificate"), for each
Business (including on a combined basis with MND or HLC, as
applicable), as of the scheduled Closing Date for such sale,
prepared in accordance with generally accepted accounting
principles from the books and records of the relevant Seller and
Company, if applicable, and in accordance with this Section 3.4,
and representing a good faith and reasonable estimate of the
following: (i) the amount of estimated Net Working Capital of
the Business; (ii) the items included in the estimated Net
Working Capital of the Business as of the scheduled Closing
Date; and (iii) the estimated amount of the adjustment to the
stated cash purchase price to be paid by Buyers to Sellers for
the relevant Business as set forth in Schedule 3.1. Net Working
Capital for the relevant Business shall be calculated and
defined herein as (1) all Accounts Receivable of the relevant
Seller and Company, if applicable, with respect to the Business
sold as of the applicable Closing Date, excluding any prepaid
Accounts Receivable for which a Buyer will provide services
after the Closing ("Prepaid Receivables") and excluding any
Accounts Receivable from customers for whom Sellers or Companies
have ceased providing service and have accordingly removed all
equipment from such customer location; (2) the net book value of
any Inventory of the relevant Seller and Company, if applicable,
with respect to the Business sold as of the applicable Closing
Date; (3) reduced by the face amount of any Advance Payments of
the relevant Seller and Company, if applicable, related to the
Business sold as of the applicable Closing Date; and (4) less
the amount of any unpaid and assumed trade payables of the
Business as of the Closing Date and all other prorations,
Liabilities or adjustments under Sections 3.4, 3.5 and 3.6
(including without limitation (a) the net present value of any
direct payment obligations (excluding so-called "release
payments") assumed by Buyers under the real estate purchase
option for, or relating to, the M&N Landfill which are other
than as specifically set forth in Schedule 3.4(a) and (b)
Liabilities which are not Assumed Liabilities but which are
assumed or paid by Buyers or Companies (after Closing) on behalf
of Sellers or Companies (prior to Closing) if Sellers do not
discharge such Liabilities within five (5) days of written
notification from Buyers and no bona fide disputes exist
regarding such Liabilities).
(b) In the event Buyers object to any of the information set forth
on the estimated Net Working Capital Certificate or accompanying
schedules as delivered by Sellers pursuant to Section 3.4(a),
the parties shall negotiate in good faith and agree on
appropriate adjustments so that such estimated Net Working
Capital Certificate and accompanying schedules reflect a
reasonable estimate of the Net Working Capital of the relevant
Business as of the scheduled Closing Date (the estimated Net
Working Capital Certificate as finally determined by the parties
pursuant to this subsection is herein referred to herein as the
"Estimated Net Working Capital Certificate" and the amount of
Net Working Capital set forth therein is herein referred to as
the "Estimated Net Working Capital"). The Estimated Net Working
Capital arrived at above shall then provide the basis for
payment at Closing of 75% of such amount pursuant to
Section 3.1(b), but shall not otherwise be conclusive in the
determination of the Final Net Working Capital of that Business
or any other Business. No determinations or agreements by the
parties in determining and agreeing upon the Estimated Net
Working Capital shall prevent any party from disputing such
calculation in connection with the determination of the Final
Net Working Capital for the subject Business or any other
Business.
(c) Buyers shall use their best efforts to deliver to BFI no later
than 120 days after the Closing Date for the sale of each
respective Business, a proposed final Net Working Capital
Certificate, prepared in accordance with the provisions of
Section 3.4(a), but using actual data as of the relevant Closing
Date instead of estimates.
(d) Within thirty (30) days following the delivery by Buyers of the
proposed final Net Working Capital Certificate under
Section 3.4(c) above, BFI may object to any of the information
contained in the proposed final Net Working Capital Certificate
or accompanying schedules which could affect the necessity or
amount of any payment by a Buyer of additional purchase price to
the Sellers. Any such objection shall be made in writing by BFI
to Superior and shall state BFI's determination of the amount of
the proposed final Net Working Capital for the relevant Business
and include details of BFI's calculation of the proposed final
Net Working Capital and the reasons why BFI's calculations are
different than Buyers' calculations of the proposed final Net
Working Capital.
(e) In the event of a dispute or disagreement relating to the
proposed final Net Working Capital Certificate or schedules
which Buyers and Sellers are unable to resolve, either party may
elect to have all such disputes or disagreements resolved by an
accounting firm of nationally recognized standing which has not
previously provided services to any party hereto (the
"Accounting Firm") and which Accounting Firm shall be mutually
selected by BFI and Superior (provided that, if agreed by BFI
and Superior, the same Accounting Firm may resolve disputes over
more than one Net Working Capital Certificate). The Accounting
Firm shall make a resolution of the proposed final Net Working
Capital Certificate of the relevant Business as of the relevant
Closing Date and the calculation of the proposed final Net
Working Capital for the Business sold, which shall be final and
binding on all parties for purposes of this Article 3. The
Accounting Firm shall be instructed to use every reasonable
effort to perform its services within thirty (30) days of
submission to it of the disputed Net Working Capital
Certificate(s) and, in any case, as soon as practicable after
such submission. The fees and expenses for the services of the
Accounting Firm shall be shared one-half by Superior and one-
half by BFI and Buyers and Sellers shall cooperate with the
Accounting Firm and provide it with all necessary Books and
Records (including outside accountant work papers) to assist it
in its resolution. The final Net Working Capital Certificate
and Net Working Capital reflected therein as agreed by the
parties or determined by the Accounting Firm is herein called
the "Final Net Working Capital Certificate" and the "Final Net
Working Capital."
(f) Subject to the other terms and conditions of, and adjustments
required or allowed by, this Agreement (including without
limitation under Section 3.4(g), 3.5, 3.6 and Article 10),
within ten (10) days after any final determination of the Final
Net Working Capital for a Business (each, a "Settlement Date"),
either: (i) if the Final Net Working Capital for the Business
sold, as adjusted herein, is greater than 75% of related
Estimated Net Working Capital (the amount paid by Buyers at
Closing), then Buyers shall deliver to Sellers immediately
available funds equal to the amount of such difference or (ii)
if the Final Net Working Capital for the Business sold, as
adjusted herein, shall be less than 75% of the Estimated Net
Working Capital for the Business sold, then BFI shall pay to
Superior the amount of such difference in immediately available
funds.
(g) BFI shall remit to the relevant Buyer, or the relevant Buyer may
offset and reduce the amount of Final Net Working Capital for
purposes of payments from one party to the other under
Section 3.4(f) above or otherwise, an amount equal to the sum of
(i) the face amount of all uncollected Accounts Receivable for
any Business sold to Buyer which remain uncollected and
outstanding as of one hundred and twenty (120) days following
the respective Closing Date for the sale of such Business plus
(b) interest on the face amount of such uncollected Accounts
Receivable calculated at the rate of 6% per annum from the
Closing Date to the date of remittance or reimbursement to the
relevant Buyers, provided the Buyer has attempted to collect
such Accounts Receivable consistent with its normal business
practices (which shall consist of no more than mailing periodic
reminder invoices). Upon BFI's remittance or Buyer's offset of
such amounts, the relevant Buyer shall convey good and
marketable title to such uncollected Accounts Receivable to BFI,
free and clear of any Liens.
(h) No adjustments under this Section (or under Sections 3.5 or 3.6)
shall be subject to the limitations or procedures under
Article 10.
3.5 Prorations. The following prorations relating to each of the
Businesses will be made as of each respective Closing Date for the
sale of each Business to Buyers, with Sellers jointly and severally
liable to the extent such items relate to any time period up to and
including the relevant Closing Date if not already taken into account
in the relevant calculation of Net Working Capital for the Business
being sold and Buyers liable to the extent such items relate to
periods subsequent to the relevant Closing Date. Except as otherwise
specifically provided herein, the net amount of all such prorations
will be settled and paid on each Settlement Date as part of the
determination of the Final Net Working Capital calculation and
payment of any purchase price adjustment payable under Section 3.4(f)
hereof:
(a) Personal property taxes, real estate taxes and
assessments, and other taxes, if any, on or with respect to the
Businesses.
(b) Rents, additional rents, taxes and other items
payable by Sellers under any Lease, Permit or Contract to be
assigned to or assumed by Buyers.
(c) The amount of rents, taxes and charges for sewer,
water, fuel, telephone, electricity and other utilities;
provided that if practicable, meter readings shall be taken at
or promptly after the relevant Closing Date and the respective
obligations of the parties determined in accordance with such
readings.
(d) All other items normally adjusted in connection
with similar transactions consistent with local custom and
practice.
If the actual expense of any of the above items for the billing
period within which the relevant Closing Date falls is not known on
the Settlement Date, the proration shall be made based on the expense
incurred in the previous billing period, for expenses billed less
often than quarterly, and on the average expense incurred in the
preceding three billing periods, for expenses billed quarterly or
more often.
3.6 Other Payments and Adjustments. The amount of wages and other
remuneration due in respect of periods to and including the relevant
Closing Date to employees of Sellers and Companies and the amount of
bonuses due to such employees for all such periods will be paid by
Sellers directly to such employees. Except to the extent taken into
account in the relevant calculation of Estimated Net Working Capital
(as to which Sellers covenant that they will include an estimate of
the following Liabilities), Buyers shall receive a credit in the
calculation of the Final Net Working Capital for each Business on
each Settlement Date in an amount equal to all vacation and sick pay
unpaid by Sellers and Companies as of the relevant Closing Date for
the Business then being sold attributable to any period or partial
period of employment by Sellers and Companies, plus employee payroll
taxes applicable thereto due or to become due, for Affected Employees
(as hereinafter defined) and (i) who have not as of the relevant
Closing Date taken vacation or sick time earned prior to Closing, or
(ii) who have not earned vacation or sick time as of the relevant
Closing Date but who would have earned vacation or sick time for any
such period or partial period of employment prior to the relevant
Closing (on a pro rata basis) had they continued as employees of
Sellers to the date when such vacation or sick pay would have accrued
to them.
ARTICLE 4.
CLOSINGS
The respective transfers of the Businesses, Assets and the Shares
referred to in Article 1 hereof, the respective assumption of the
specified limited Assumed Liabilities referred to in Article 2 and the
payment of the respective purchase prices referred to in Article 3 (each,
a "Closing") shall take place at a mutually agreed upon time at the
offices of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to Buyers, on April 18, 1997, or at
such other time and date as BFI and Superior may mutually agree or on
which such Closing actually occurs (each, a "Closing Date"). It is
contemplated that separate Closings will take place for the sale by
Sellers to Buyers of each of the various Businesses; provided, however,
that (i) the sale of the Shares of MND and the Green Bay Assets are
codependent and must take place simultaneously; (ii) the sale of the
Shares of HLC and the ▇▇▇▇▇▇ Assets are codependent and must take place
simultaneously; and (iii) no partial Closing for the sale of selected
Assets for any respective Business will be effected unless mutually agreed
by BFI and Superior.
4.1 Sellers' Deliveries. At each respective Closing, the relevant
Sellers shall deliver to the relevant Buyers as many of the following
items as are applicable to that particular transaction:
(a) Certificates representing all of the issued and outstanding
Shares being sold in that transaction, duly endorsed for
transfer or accompanied by duly executed stock powers,
sufficient to transfer such Shares to Superior;
(b) The complete and correct corporate minute book, stock transfer
book, and other corporate records and the corporate seal of
either MND or HLC, if such corporation's Shares are being sold
in that transaction;
(c) Possession of copies, or to the extent in the actual possession
of Sellers or Companies originals, of all Contracts, Leases,
Assumed Permits or instruments evidencing the associated rights
or obligations of the relevant Seller and/or Company and the
relevant Business and possession of all of the Assets of the
relevant Seller and/or Company and the relevant Business and all
Records and Files and other documents relating to the relevant
Seller and/or Company and the relevant Business which may be in
the possession of the relevant Seller and/or Company and
counterparts of which are not otherwise to be found in the
Records and Files of the relevant Seller and/or Company or the
relevant Business;
(d) Consents and assignments reasonably satisfactory to Buyers to
all Real Property Leases and other Material Contracts, Material
Leases and Permits set forth on Schedules 11.2 and 11.3.
(e) Certificates of good standing for the relevant Seller and MND or
HLC (if applicable) issued by such corporation's respective
state of incorporation;
(f) A copy of the articles of incorporation of either MND or HLC, if
such corporation's respective Shares are being sold in that
transaction, and all amendments certified on behalf of the
corporation's state of incorporation and a copy of the bylaws
thereof duly certified by that corporation's Secretary;
(g) The revocation by either MND or HLC, if such corporation's
respective Shares are being sold in that transaction, of all
prior bank borrowing or depository authorizations;
(h) The favorable opinion of BFI's corporate legal counsel,
reasonably satisfactory to Buyers' counsel, addressing the legal
matters set forth in Sections 5.1, 5.2, 5.3, 5.4 and, to such
counsel's knowledge, Section 5.5;
(i) Resignations of all of the officers and directors of either MND
or HLC, if such corporation's respective Shares are being sold
in that transaction, a list of all bank accounts of the Company
then subject to sale and evidence of termination of all
employees of the Company then subject to sale requested by
Buyer;
(j) General releases of all past, present and future claims, whether
known or unknown, against either MND or HLC, if such
corporation's respective Shares are being sold in that
transaction;
(k) A certificate executed on behalf of the relevant Seller and
either MND or HLC, if such corporation's respective Shares are
being sold in that transaction, certifying (i) that the minutes
of any and all meetings of the board of directors or
shareholders (or properly executed consent resolutions in lieu
thereof), as may be required by applicable Law, authorizing such
corporation's execution, delivery and performance of the
transactions contemplated in this Agreement; (ii) as to the
incumbency, and authenticating the signatures of, the officers
executing this Agreement and the Ancillary Instruments delivered
hereunder on behalf of such corporation; and (iii) that such
corporation has duly performed or complied with in all material
respects all covenants, acts and undertakings required in this
Agreement and that all of the representations and warranties
made by such corporation herein and in any schedules hereto are
true, correct and complete in all material respects;
(l) To the extent then available, certificates of tax clearance in
respect of the relevant Seller from all appropriate federal,
state, and local taxing authorities;
(m) A duly executed ▇▇▇▇ of sale for the Assets being transferred;
(n) A duly executed ▇▇▇▇ of sale for certain Columbus vehicles being
transferred to Buyers on those terms and conditions as mutually
agreed provided such consideration reflected on the deed is
delivered by Buyers to Sellers.
(o) Warranty deeds or assigned land contracts to any Real Property
being transferred (including, to the extent then available,
estoppel certificates for the real estate purchase options
relating to the M&N Landfill);
(p) Non-foreign person affidavits for the relevant Seller or Company
in form and substance reasonably satisfactory to the relevant
Buyer complying with Section 1445(b) of the Code;
(q) Vehicle title certificates for all Vehicles being transferred
(provided copies of all such title certificates were provided to
Buyer's counsel at least three (3) days before the relevant
Closing Date);
(r) Evidence satisfactory to Buyers reflecting MND's or HLC's, if
such Shares are being sold in that transaction, transfer to
Sellers of all liabilities other than Assumed Liabilities;
(s) Such additional documents required by Article 8; and
(t) Such other certificates, consents and documents as Buyers may
reasonably request to effect the transactions specifically
provided in this Agreement or the Ancillary Instruments,
including, without limitation, a limited power of attorney
allowing Buyers to negotiate Accounts Receivable.
4.2 Deliveries by Buyers. At each respective Closing, the relevant
Buyers shall deliver to the relevant Sellers as many of the following
items as are applicable to that particular transaction:
(a) A certificate executed on behalf of the relevant Buyers
certifying (i) that the minutes of a meeting or meetings of the
board of directors or shareholders of the relevant Buyer (or
properly executed consent resolutions in lieu thereof), as may
be required by applicable Law, authorizing the relevant Buyer's
execution, delivery and performance of the transactions
contemplated in this Agreement; (ii) as to the incumbency, and
authenticating the signatures of, the officers executing this
Agreement and the Ancillary Instruments delivered hereunder on
behalf of the relevant Buyer; and (iii) that the relevant Buyers
have duly performed or complied with in all material respects
all covenants, acts and undertakings required in this Agreement
and that all of the representations and warranties made by
Buyers herein and in any schedules hereto are true, correct and
complete in all material respects;
(b) Certificates of good standing of the relevant Buyers, issued by
the respective states of their incorporation;
(c) Such undertakings and instruments of assumption as will be
reasonably sufficient to evidence the assumption by the relevant
Buyers of the Assumed Liabilities for that particular Business
as provided for in Article 2;
(d) That portion of the cash purchase price respecting the Assets
and Shares then being sold in accordance with Schedule 3.1
hereto, provided that only 75% of the Estimated Net Working
Capital of the Business then being sold shall be paid at the
Closing for such Business in accordance with Section 3.4, in the
form of a wire transfer of immediately available federal funds
payable to the relevant Sellers as directed by BFI;
(e) The applicable Purchase Price Allocation Schedule;
(f) The favorable opinion of Superior's General Counsel, reasonably
satisfactory to BFI's counsel, addressing the legal matters
referred to in Sections 6.1, 6.2 and 6.3;
(g) Such additional documents required by Article 8; and
(h) Such other certificates, consents and documents as Sellers may
reasonably request to effect the transactions specifically
provided in this Agreement or the Ancillary Instruments.
4.3 Further Cooperation. From time to time after each and every Closing
Date without further consideration or charge, the Sellers will
execute and deliver such other instruments of conveyance and transfer
and take such other action, as Buyers may reasonably may request, to
more effectively convey and transfer to and vest in Buyers and to put
Buyers in possession of the Businesses, Assets and Shares. The
Sellers will also furnish Buyers with such information and documents
in the Sellers' possession or under the Sellers' control or which the
Sellers can execute or cause to be executed as will enable Buyers to
prosecute or continue any and all pending Litigation, claims,
applications and the like which may be assigned hereunder.
Additionally, subsequent to each and all Closings, BFI shall provide
Superior, at no additional cost or charge, with such Books and
Records (including work papers of accountants), access to personnel
and other assistance as Superior may reasonably request to allow
Superior to prepare and file with the Securities and Exchange
Commission on a timely basis audited financial statements for the
Businesses and pro forma combined financial statements for the
Businesses and the Buyers, sufficient to satisfy Superior's
obligations under the Securities Exchange Act of 1934.
ARTICLE 5.
SELLERS' REPRESENTATIONS AND WARRANTIES
Sellers, jointly and severally, make the following representations
and warranties to Buyers, each of which is true and correct on the date
hereof, shall remain true and correct to and including each of the
respective Closing Dates, shall be unaffected by any investigation
heretofore or hereafter made by Buyers, any other Closings effected
hereunder, or any knowledge of Buyer other than as and to the extent
specifically disclosed in the Disclosure Schedule delivered to Buyers at
least three business days prior to the date of the execution of this
Agreement in accordance with Section 15.11, and shall survive each of the
Closings of the transactions provided for herein to the extent set forth
in Section 10.9.
5.1 Existence and Qualification. The Sellers and the Companies are duly
incorporated, validly existing and in good standing under the laws of
their respective jurisdictions of incorporation. The Sellers and the
Companies have all requisite power and authority, corporate and
otherwise, to carry on their respective Businesses as presently
conducted, and are duly qualified to conduct such Businesses as
foreign corporations in all jurisdictions where the failure to be so
qualified would have a material adverse effect on the Business of the
respective Seller or Company. BFI has provided to Superior true and
complete copies of the current charters and bylaws of the Companies
as in effect on the date hereof.
5.2 Authority. Sellers have all requisite corporate power and authority
to enter into this Agreement, to sell the Businesses, Assets and
Shares and to perform their respective obligations hereunder and
under the other agreements, documents, certificates and instruments
required hereunder (collectively, "Ancillary Instruments"). The
execution, delivery and performance of this Agreement and the
Ancillary Instruments have been duly and validly authorized by all
necessary corporate action on the part of Sellers and this Agreement
and the Ancillary Instruments constitute valid and binding
obligations of Sellers enforceable against them in accordance with
their respective terms, except to the extent such enforcement may be
delayed, hindered or otherwise affected by bankruptcy, insolvency,
other similar laws relating to the enforcement of creditors' rights
generally or general principles of equity.
5.3 No Conflicts. Neither the execution, delivery and performance of
this Agreement or the Ancillary Instruments, nor the consummation of
the transactions provided for herein or therein, will conflict with
or result in a breach of, or default (or an event which, with notice
or lapse of time, or both, would constitute a default) under, the
charter or bylaws of any of the Sellers or the Companies or of any of
the terms, conditions or provisions (other than those contemplating
assignment or transfer) of any Contract or Lease to which any of them
is a party or by which any of them or the Assets is bound or affected
or will result in a violation of any applicable Law, Order or Permit
applicable to any of the Businesses, Sellers or Companies or will
otherwise create or impose any Lien on any of the Assets or Shares.
Notwithstanding the foregoing, none of the Sellers makes any
representation or warranty, and each expressly disclaims any
representation or warranty, with respect to whether the consent of
any Government Entity or third party is required with respect to any
Contract, Lease or Permit in connection with the consummation of the
transactions contemplated by this Agreement.
5.4 Capitalization; Ownership of Shares.
(a) Capitalization. The authorized capitalization of the Companies
is as set forth and described in Schedule 5.4. Each Share is
validly issued and outstanding, fully paid and nonassessable and
free of preemptive rights. There are no outstanding
subscriptions, warrants, options or other agreements or
commitments obligating any of the Companies to issue additional
shares of Stock (which term as used herein shall include any
equity interest whatsoever in either of the Companies) or rights
thereto or interests therein or to transfer from treasury any
shares of Stock, or any obligation convertible into Stock, or
entitling the holder thereof to subscribe for, purchase or
receive any additional shares of Stock. BFI owns, and upon the
Closing of the sale to Superior-Wisconsin as contemplated herein
Superior-Wisconsin will receive, good and marketable title and
all right, title and interest in the Shares of MND, free and
clear of any Liens or rights of any other person or entity.
BFIP owns, and upon the Closing of the sale to Superior-
Pennsylvania as contemplated herein Superior-Pennsylvania will
receive, good and marketable title and all right, title and
interest in the Shares of HLC, free and clear of any Liens or
rights of any other person or entity. Neither BFI nor BFIP (nor
any of their Affiliates) has granted a currently effective power
of attorney or proxy to any person or entity with respect to all
or any part of or interest in the Shares owned by it. Except
for this Agreement, neither BFI nor BFIP (nor any of their
Affiliates) is a party to or bound by any agreement, undertaking
or commitment to sell, exchange or purchase any Shares.
(b) No Subsidiaries; Minute Books. Neither of the Companies owns,
in whole or in part, any other corporation, association,
organization, partnership, joint venture, limited liability
company or any interest therein or is associated through equity
interest or ownership in any other business with any other
person or firm. The minute books of the Companies contain
sufficient and accurate records of all meetings (and of all
written consent actions taken in lieu thereof) of the
shareholders and directors of each such Company. The stock
ledger books of the Companies accurately reflect the names of
the record holders of the Shares of such Company and the number
of Shares each such holder owns.
5.5 No Litigation. Except as set forth and described in detail on
Schedule 5.5, (i) there is not pending and, to the best knowledge of
Sellers, there is not threatened any suit, claim, action or formal
proceeding against, or which may adversely affect, any of the
Sellers, the Companies (or their Assets), the Shares, the Assets or
any of the Businesses in or before any court or Government Entity and
(ii) there is no Order or injunction by any court or Government
Entity in effect against any of the Sellers or the Companies. None
of the Sellers know of any basis for such suit, claim, action or
formal proceeding or Orders being instituted against any of the
Sellers, Companies (or their Assets), the Assets, the Shares or any
of the Businesses. Schedule 5.5 also separately and distinctively
sets forth and identifies all material suit, claim, action or formal
proceeding and Orders to which the Businesses have been parties or
subject since January 1, 1994 known to the knowledge of each
respective Businesses' District Vice President, and the current
status thereof.
5.6 Assets. Sellers and the Companies have, and at the respective
Closing the relevant Buyer will receive, good and marketable title to
all of their respective owned Assets (excluding Real Property which
is separately addressed below), subject to no Liens and all such
tangible Assets are in good working order, reasonable wear and tear
excepted. Each replacement or substitute Equipment and Vehicles
identified on the Schedules to Article 1 shall be as set forth in the
Financial Data included in the offering memoranda and prospectuses
used by BFI to solicit indications of interest to acquire the
respective Businesses and shall be operationally capable to provide
service in an efficient and effective manner consistent with the
Equipment and Vehicles replaced and such replacement or substitute
Equipment and Vehicles are presently in use as active service route
Equipment and Vehicles at other BFI Affiliate locations. On the
respective Closing Date for the sale of each respective Business, the
Assets of such Business shall be substantially the same as those set
forth in the respective Schedules to Article 1, except for changes
thereto in the ordinary course of business consistent in amount and
nature with past practice or as otherwise consented to by Buyers.
5.7 Financial Data. Schedule 5.7 lists for each respective Business
certain financial information ("Financial Data") provided previously
by BFI to Superior in BFI's Offering Memoranda or Prospectuses for
each respective Business. Such Financial Data is true, complete and
accurate in all material respects and was prepared in accordance with
generally accepted accounting principles (except for the absence of
footnote disclosure and for other differences from generally accepted
accounting principles described on Schedule 5.7A) applied on a
consistent basis, and the Financial Data fairly presents the
financial information set forth therein, in accordance with generally
accepted accounting principles for the periods indicated and has been
compiled consistent with past practice from the internal accounting
records of the respective Companies and Sellers without audit.
Notwithstanding the above, the Financial Data does not constitute any
warranty with respect to future results of operations of any the
Businesses. The internal accounting records of the Companies and the
BFI Subsidiaries from which such Financial Data has been compiled
have been maintained on a consistent basis in all material respects
by the Companies and the Sellers.
5.8 Absence of Undisclosed Liabilities. Except as and to the extent
specifically disclosed in the Financial Data or listed by respective
Business in Schedule 5.8, none of the Companies or Sellers have any
Liabilities with respect to their respective Businesses other than
commercial liabilities and obligations incurred since the date of the
Financial Data in the ordinary course of business and consistent in
nature and amount with past practice and none of which has or will
have a material adverse effect on the business, financial condition
or results of operations of such Businesses. Except as and to the
extent described in the Financial Data or listed by respective
Business in Schedule 5.8, Sellers have no knowledge of any basis for
the assertion against the Businesses of any other Liability, except
for commercial liabilities and obligations incurred in the ordinary
course of the Businesses and consistent with past practice.
5.9 Inventory. All Inventory of Companies and Sellers consists of a
quality and quantity useable in the ordinary course of each Business,
have a commercial value at least equal to the value to be shown on
the Net Working Capital Certificate for the Business and is valued in
accordance with generally accepted accounting principles.
5.10 Accounts Receivable. All of the Accounts Receivable have arisen out
of services performed in the ordinary course of business by the
Sellers or the Companies. None of the Sellers makes any warranty
with respect to the collectibility of any Accounts Receivable
(subject to the obligations of BFI to reimburse uncollected Accounts
Receivable under Section 3.4(g)).
5.11 Contracts. Excluding Leases which are addressed below, Schedule 5.11
lists by respective Business all municipal contracts, government
waste flow control programs (including county plans under
Pennsylvania Act 101), commercial contracts, customer service
contracts, office supply contracts, maintenance contracts, consulting
agreements, and any other service contracts or other agreements for
the purchase or sale of goods or services or the payment of fees
relating to the Businesses (collectively, "Material Contracts")
which, with respect to contracts other than municipal contracts
(which municipal contracts are all considered Material Contracts),
(i) are not cancelable without penalty on less than thirty (30) days'
notice by any of the Companies or the Sellers; (ii) provide for the
payment by either of the Companies or the BFI Subsidiaries of more
than $2,500 annually; (iii) provide for the receipt by either of the
Companies or the BFI Subsidiaries of more than $2,500 annually; or
(iv) are with any Affiliate of any of the Sellers. None of the
Companies or Sellers is in default in any respect under any such
Material Contract, nor has any event or omission occurred which
through the passage of time or the giving of notice, or both, would
constitute a default thereunder or cause the acceleration of any of
Seller's or Company's obligations or result in the creation of any
Lien on any of the Assets or adversely affect the respective Business
or the Assumed Liabilities. With respect to non-Material Contracts,
none of the Companies or Sellers is in default under any other
contracts or agreements to which they are a party or by which any of
them are bound (referred to herein collectively with the Material
Contracts as the "Contracts"), nor has any event or omission occurred
which, through the passage of time or the giving of notice, or both,
would constitute a default thereunder or cause the acceleration of
any of Seller's or Company's obligations or result in the creation of
any Lien on any of the Assets or adversely affect the respective
Business or the Assumed Liabilities, the result of which defaults
with respect to non-Material Contracts could individually or in the
aggregate have a material adverse effect on any of the Businesses.
To the best of Sellers' knowledge, no other party to any Material
Contract is in default in any respect thereunder, nor are there any
defaults by the other parties to any of the non-Material Contracts
which could individually or in the aggregate have a material adverse
effect on the respective Businesses. None of Sellers make any
representation with respect to whether the consent of any other party
to any Contract is required in connection with consummation of the
transactions contemplated by this Agreement. Sellers have provided
to Buyers (with a copy to their counsel) true, correct and complete
copies of all Material Contracts.
5.12 Leases. Schedule 5.12 lists by respective Business all leases of
personal property (collectively, "Personal Property Leases") and all
leases of real property (collectively, "Real Property Leases")
relating to the Businesses (collectively, "Material Leases") which,
with respect to Personal Property Leases (Real Property Leases are
all considered Material Leases), (i) are not cancelable by either of
the Companies or the BFI Subsidiaries without penalty on less than
thirty (30) days' notice; (ii) provide for annual lease payments by
any of the Companies or the BFI Subsidiaries of at least $2,500; or
(iii) are with any Affiliate of any of the Sellers. None of the
Companies or Sellers is in default in any respect under any Material
Lease nor has any event or omission occurred which, through the
passage of time or the giving of notice, or both, would constitute a
default thereunder or cause the acceleration of any of Seller's or
Companies' obligations or result in the creation of any Lien on any
of the Assets or adversely affect the respective Business or the
Assumed Liabilities. With respect to non-Material Leases, none of
the Companies or Sellers is in default under any other Personal
Property Leases to which they are a party (referred to collectively
with the Material Leases as the "Leases") the result of which
defaults with respect to Personal Property Leases could individually
or in aggregate have a material adverse effect on the respective
Businesses. To the best of Sellers' knowledge, no other party to any
Material Lease is in default in any respect thereunder, nor are there
defaults by the other parties to the other Personal Property Leases
which could in the aggregate have a material adverse effect on the
respective Business. There are no known disputes or oral agreements,
or otherwise any forbearance programs in effect as to any Real
Property Lease. None of the Sellers or the Companies has assigned,
transferred, conveyed, mortgaged, deeded in trust or encumbered any
interest in the leasehold or subleasehold under any Real Property
Lease. All leased Real Properties are supplied with utilities and
other services necessary for the operation of such leased Real
Properties. Sellers make no representation with respect to whether
the consent of any other party to any Lease is required in connection
with the consummation of the transactions contemplated by this
Agreement. Sellers have provided to Buyers (with a copy to their
counsel) true, correct and complete copies of all Material Leases.
5.13 Permits. Each Company and Seller has all material Permits required
for the conduct of its Business and operation of its facilities used
in the conduct of such Business. All such Permits are described in
Schedule 5.13 and are in full force and effect. Except as
specifically set forth by respective Business in Schedule 5.13, each
Company and Seller is and has been in compliance with all such
Permits. Sellers make no representation with respect to the whether
the consent of any Government Entity issuing any such Permit is
required in connection with the consummation of the transactions
contemplated by this Agreement. Sellers have provided to Buyers
(with a copy to their counsel) true, correct and complete copies of
all Permits.
5.14 Compliance with Laws and Orders. Except as set forth by respective
Business on Schedule 5.14 (which disclosure shall not be deemed or
construed as an admission of a material violation or default), none
of the Sellers or the Companies is in material violation of or
default under any Law or Order in connection with the operation of
any of their Businesses, including any Environmental Laws (as
hereinafter defined). Except as set forth by respective Business in
Schedule 5.14, no Seller or Company has received notice of any
violation or alleged violation of, and is subject to no Liability for
past or continued violation of, any Laws or Orders in connection with
its Business. All reports and returns required to be filed by
Sellers and Companies with any Government Entity with respect to its
Business have been filed, and were accurate and complete in all
material respects when filed. Without limiting the generality of the
foregoing:
(a) Each Seller and Company has made all required payments to its
unemployment compensation reserve accounts in connection with
each Business with the appropriate Government Entity where it is
required to maintain such accounts, and each of such accounts
has a positive balance.
(b) Sellers have delivered to Superior copies of all reports in
their possession of Companies and BFI Subsidiaries with respect
to any of the Businesses for the past three (3) years required
under the federal Occupational Safety and Health Act of 1970, as
amended, and under all other applicable health and safety Laws.
5.15 Employment and Labor Matters. Except as set forth by respective
Business in Schedule 5.15, with respect to any of the Businesses,
none of the Sellers or the Companies is a party to (i) any collective
bargaining agreement; (ii) any agreement respecting the employment of
any officer or any other employee; or (iii) any agreement for the
provision of consulting or other professional services which is not
cancelable without penalty on not more than thirty (30) days' notice.
Except as set forth by respective Business in Schedule 5.15, within
the last three (3) years with respect to any of the Businesses no
Seller or Company has experienced any union organization attempts or
any work stoppage due to labor disagreements in connection with its
Business. Except to the extent set forth by respective Business in
Schedule 5.15, with respect to any of the Businesses (a) each Seller
and Company is in compliance in all material respects with all
applicable Laws respecting employment and employment practices, terms
and conditions of employment and wages and hours; (b) there is no
formal unfair labor practice charge or complaint against any Seller
or Company pending or, to Sellers' knowledge, threatened; (c) there
is no labor strike, dispute, request for representation, slowdown or
stoppage actually pending or, to Seller's knowledge, threatened
against or affecting any Seller or Company; (d) no grievance which
might have a material adverse effect on any Seller or Company, nor
any arbitration proceedings arising out of or under collective
bargaining agreements, is pending; and (e) there are no
administrative charges or court complaints against any Seller or
Company concerning alleged employment discrimination or other
employment related matters pending or, to Sellers' knowledge,
threatened before the U.S. Equal Employment Opportunity Commission or
any Government Entity.
5.16 Real Property.
(a) Schedule 5.16(a) sets forth by respective Business all Real
Property owned, leased or subject to a contract for acquisition
by the Companies or Sellers in respect of any of the Businesses
and used in connection with their respective Business as
presently conducted. Except as set forth on Schedule 5.16(a),
in respect of any of the Businesses, neither of the Companies
have owned, leased or contracted for the purchase of any other
Real Property.
(b) With respect to the Real Property used in connection with any of
the Businesses:
(i) The respective BFI Subsidiary or Company, as applicable,
will deliver good and marketable and insurable title in
fee simple to the Real Property owned by the respective
BFI Subsidiary or Company free and clear of all Liens,
except for "Permitted Encumbrances". The term
"Permitted Encumbrances" is defined as any minor defects
in title which do not, individually or in the aggregate,
materially interfere with the use of such Real Property
as currently being used in connection with the
respective Business, as reasonably determined by Buyers.
All facilities owned and/or operated by the respective
BFI Subsidiary or Company, as applicable, have received
all approvals of Government Entities required in
connection with the ownership and/or operation thereof,
except as set forth by respective Business on
Schedule 5.16(b).
(ii) None of the Real Property, or the occupancy, use or
operation thereof, is in violation of any Law, including
any building, zoning or other ordinance, code, rules or
regulation applicable to it, whether promulgated by a
federal, state, local or other Government Entity.
Except as set forth by respective Business on Schedule
5.16(b), such compliance is based upon classification of
such occupancy, use, or operation as a right, and not as
a special exception, conditional use, special use,
nonconforming use, or special variance.
(iii) None of the Sellers or Companies has received, nor do
any of Sellers have any knowledge of any notice from any
Government Entity claiming such violations or calling
attention to the need for any work, repairs,
construction, alterations or installation on or in
connection with said Real Property which has not been
complied with or disclosed by respective Business on
Schedule 5.16(b). All improvements meet the
requirements of the National Insurance Underwriters
Standards including without limitation, fire, safety and
sprinkler systems, and there are no outstanding
violations of any insurance company requirements.
(iv) None of the Sellers or Companies has notice or knowledge
of any planned or commenced public improvement or
activity which may result in a special assessment or
otherwise affect the Real Property, except as disclosed
by respective Business on Schedule 5.16(b).
(v) None of the Real Property is located in a flood plain.
(vi) Except as set forth by respective Business on
Schedule 5.16(b), there are no underground storage tanks
or any structural, mechanical or other defects affecting
the Real Property, including but not limited to
inadequacy for intended use of mechanical systems, waste
disposal systems and ▇▇▇▇▇, unsafe well water according
to applicable state standards, nor are there present any
dangerous or toxic materials or conditions adversely
affecting the Real Property.
(vii) There are no wetland and/or shoreland regulations
adversely affecting the Real Property.
(viii) The legal description for each parcel of Real Property
set forth by respective Business on Schedule 5.16(b)
describes such parcel fully and adequately, the
buildings and improvements are located within the
boundary lines of the described parcels of land, are not
in violation of applicable setback requirements, zoning
laws, and ordinances, except as set forth by respective
Business on Schedule 5.16(b) (and none of the properties
or buildings or improvements thereon are subject to
"permitted non-conforming use" or "permitted non-
conforming structure" classifications, except as set
forth by respective Business on Schedule 5.16(b)), and
do not encroach on any easement which may burden the
land, any easement will not unreasonably restrict use or
development of the balance of any parcel, and the land
does not serve any adjoining property for any purpose
inconsistent with the use of the land.
(ix) There are no Leases, subleases, licenses, concessions or
other agreements, written or oral, granting to any third
party or third parties the right of use or occupancy of
any portion of any parcel of Real Property, other than
as set forth by respective Business on Schedule 5.16(b).
(x) There are no outstanding options or rights of first
refusal to purchase any parcel of Real Property in favor
of any third party or parties, or any portion thereof or
interest therein.
(xi) There are no parties (other than the respective Seller
or Company, as applicable) in possession of, or
possessing any rights to, any parcel of Real Property.
(xii) All facilities located on the Real Property are supplied
with utilities and other services necessary for the
operation of such facilities, including gas,
electricity, water, telephone, sanitary sewer and storm
sewer, all of which services are adequate in accordance
with all applicable Laws, are provided via public roads
or via permanent, irrevocable, appurtenant easements
benefitting the Real Property.
(xiii) Except as set forth by respective Business on
Schedule 5.16(b), each parcel of Real Property abuts on
and has direct vehicular access to a public road, or has
access to a public road via a permanent, irrevocable,
appurtenant easement benefitting the parcel of Real
Property, and access to the Real Property is provided by
paved public right-of-way with adequate curb cuts
available.
(xiv) Except as set forth by respective Business on
Schedule 5.16(b), none of the Sellers or Companies are
required to place any notice or restriction relating to
the presence of Hazardous Substances (as hereinafter
defined) in the deed to any of the Real Properties and
no Real Property now or previously owned by Companies
has such a notice or restriction in its deed.
(xv) The real estate purchase options relating to Real
Property constituting and surrounding the M&N Landfill
are in full force and effect, and MNF is not in default
in any respect under any such options, nor has any event
or omission occurred which through the passage of time
or the giving of notice, or both, would constitute a
default thereunder or cause the acceleration of any of
MND's obligations or result in the creation of any Lien
on any of the Assets or adversely affect the Green Bay
Business or the Assumed Liabilities.
5.17 Environmental Matters
(a) Except as set forth by respective Business in Schedule 5.17
(which disclosure shall not be deemed or construed as an
admission of a material violation or default), with respect to
each respective Business, (i) the Sellers and Companies have
conducted and currently are conducting its respective Business
in substantial compliance with all applicable Environmental Laws
(as defined below), and neither they, nor any business sites
owned or operated by them ("Business Sites") nor their
operations attendant thereto are subject to any outstanding or,
to the best knowledge of Sellers, threatened environmental
claims, actions or Litigation instituted pursuant to any such
Environmental Laws; (ii) none of the Sellers or Companies with
respect to the Businesses or, to the best knowledge of Sellers,
any predecessors in interest has engaged in or permitted any
unauthorized, unlawful, unlicensed, or unpermitted emission,
spill, release, or discharge of any Hazardous Substance (as
defined below) into or upon (A) the ambient air, (B) soils, land
surface or subsurface strata, or any improvements located
thereon, (C) surface water or ground water, or (D) the sewer,
septic system or waste treatment, storage or disposal system;
(iii) the Sellers and Companies have been issued, and have kept
current in full force and effect, all required Permits necessary
under any Environmental Laws ("Environmental Permits") to
operate their respective Business Sites and Businesses, have
timely applied for renewal and all such Environmental Permits
are listed by respective Business on Schedule 5.17(a) to this
Agreement; and (iv) except as disclosed by respective Business
on Schedule 5.17(a)(iv), no Real Property currently owned,
occupied or used by the Businesses contains or has contained any
underground storage tanks, asbestos containing materials,
polychlorinated biphenyls ("PCBs"), or oil or gas ▇▇▇▇▇.
(b) Except as set forth by respective Business in Schedule 5.17(b),
with respect to each respective Business, (i) no action or
failure to act by any of the Sellers or Companies has occurred
and no event has occurred with respect to the Business Sites and
their respective Businesses and attendant operations which, with
the passage of time or giving of notice, or both, would
constitute a violation of any applicable Environmental Laws or
noncompliance with any Environmental Permit; (ii) there are no
agreements, consent orders, decrees, judgments, licenses or
permit conditions or other Orders or directives of any federal,
state or local court or Government Entity relating to the past,
present or future ownership, use, operation, sale, transfer or
conveyance of any of the Business Sites which requires any
change in the present condition of any such Business Site or any
work, repairs, construction, containment, clean up,
investigations, studies removal or other remedial or response
action or capital expenditures with respect to any such Business
Site and its attendant operations; (iii) BFI has provided
Superior (with a copy to its counsel) with true, accurate and
complete written information in Sellers' actual possession on
the environmental history of the Businesses, and each Business
Site and its attendant operations; and (iv) none of the
Companies or the Sellers has received notice that any of the BFI
Subsidiaries, Companies or the Businesses has been named as a
"potentially responsible party" which may have liability for the
release of a Hazardous Substance into the environment. No solid
waste Environmental Permits are required for the respective
Sellers' operation of the State College Location.
(c) Schedule 5.17(c) contains a list by respective Business of the
name and address of all waste disposal, treatment, or storage
sites which the Sellers or the Companies, with respect to the
Businesses, own or operate, or have in the past owned or
operated, and, to the best knowledge of Sellers, to which the
Businesses now transport waste or have in the past transported
waste, or where waste generated by the Businesses is now, or in
the past has been, stored, treated or disposed of.
(d) Schedule 5.17(d) sets forth all of the County Waste Flow Control
Plans in which the Green Tree Landfill and any other facilities
and operations of the ▇▇▇▇▇▇ Business are listed.
(e) Sellers have no actual knowledge that the application for the
expansion for the Green Tree Landfill will be denied or unduly
conditioned or delayed by the Pennsylvania Department of
Environmental Protection or any other Government Entity or that
HLC will need to incur material costs or agree to material
restrictions in its operations to receive approval for such
expansion.
(f) "Environmental Laws" means any applicable current federal, state
and/or local laws, statutes, regulations, rules, ordinances,
codes, or other governmental restrictions or requirements
pertaining to (i) the pollution or protection of human health or
the environment, including ambient air, surface water,
groundwater, soils, land surface or subsurface strata, and
waters of the United States or (ii) the use, generation,
transportation, storage, treatment, processing, disposal, or
release of solid waste or Hazardous Substances.
(g) "Hazardous Substances" means, without limitation, any
flammables, explosives, radon, radioactive materials, asbestos,
ureaformaldehyde foam insulation, polychlorinated biphenyls,
petroleum and petroleum products, methane, hazardous materials,
hazardous wastes, hazardous or toxic substances, or related
materials as currently defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980,
as amended (42 U.S.C. Sec. 9601, et seq.), The Resource
Conservation and Recovery Act, as amended (42 U.S.C. Sec. 6901,
et seq.), The Toxic Substances Control Act, as amended (15
U.S.C. Sec. 2601, et seq.), any applicable state or local
statutes or rules which require the reporting of a discharge,
release, or spill of substances into the environment, or any
other currently applicable Environmental Law and regulations
promulgated thereunder which provide a definition of hazardous
substance or hazardous waste.
5.18 Taxes. None of the Buyers or the Companies after Closing shall be
liable for the payment of any Liabilities with respect to any
federal, state, county, local, or foreign taxes, including interest
or penalties, with respect to the conduct of the Businesses up to and
through the Closing Date for the sale of the relevant Business,
except for taxes not yet due and fully accrued and included in the
calculation of Net Working Capital for such Business. None of the
Sellers or the Companies has extended or filed for an extension of
the statute of limitations to pay any such taxes with respect to the
Businesses. The Sellers and the Companies have timely filed all
federal, state, local and foreign tax returns and reports that are
required to be filed for the Businesses as of the Closing Date along
with any required informational returns. All such tax returns and
reports properly reflect the taxes attributable to the respective
Business for the periods covered thereby. The Sellers and the
Companies have paid in full all taxes shown due on such returns and
reports or on demand notices or assessments they have received to the
extent that such taxes have become due and payable, other than those
currently payable without penalty or interest and those being
contested in good faith by appropriate proceedings. The Sellers and
the Companies have accrued, and withheld where appropriate,
sufficient amounts for the payment of all federal, state, and local
taxes and all employment and payroll-related taxes with respect to
the Businesses, including any penalties or interest thereon accrued
through the Closing Date. The Sellers and the Companies have made
all deposits required by Law with respect to employees' withholding
taxes with respect to the Businesses other than with respect to those
matters being contested in good faith by appropriate proceedings.
None of the Sellers or the Companies have received any notice of
deficiency or assessment, or notice of audit or investigation from
the IRS or any other taxing authority with respect to the Businesses.
None of the Companies or Sellers have waived any Law fixing, or
consented to the extension of, any period of time for assessment of
any tax with respect to the Businesses.
5.19 Performance Bonds; Letters of Credit. Except as set forth by
respective Business on Schedule 5.19, there are no performance bonds,
letters of credit or other financial assurance mechanisms outstanding
with respect to the Businesses, Contracts or Permits in the
possession of or known to Sellers or the Companies.
5.20 Relationships; Customers. None of the District Vice Presidents for
any of the Businesses have been advised of, or otherwise have any
knowledge of, any intention by any customer representing more than
2.0% of the revenues of any respective Business as reflected in the
Financial Data to terminate or substantially reduce the volume of
purchases by such customer. Schedule 9.1 hereto sets forth a true
and correct list, by respective Business, of all of the current
customers (exclusive of national accounts) of the Zanesville Transfer
Station and the Green Tree Landfill, respectively, which are located
outside of the geographic boundaries of such Business as set forth in
Section 9.1(B) with respect to the Zanesville Transfer Station and
9.1(B) with respect to the Green Tree Landfill ("Long-Haul
Customers") and Schedule 9.1 sets forth all of the locations from
which the waste of the Long-Haul Customers is currently collected and
being disposed of at either the Green Tree Landfill or the Zanesville
Transfer Station.
5.21 Absence of Changes. Since October 31, 1996, except as set forth by
respective Business in Schedule 5.21 or as otherwise set forth in
this Agreement, the Companies and the Sellers, with respect to the
Businesses, have conducted their respective Business in substantially
the same manner in which such Business previously has been conducted
and they have not:
(a) incurred any material Liabilities, except current liabilities
and obligations incurred in the ordinary course of business
consistent in amount and nature with past practice; or
(b) suffered any material adverse change in its results of
operations, cash flow, financial condition or prospects.
5.22 No Brokers. All contacts, introductions and negotiations relating to
this Agreement and the transactions contemplated hereby have been
carried out without the intervention of any person acting on the
Sellers' or Companies' behalf in such manner as to give rise to any
claim, Liability or Litigation against Buyers or the Companies for
any brokerage or finder's commission, fee or similar compensation.
5.23 Intellectual Property. The current use by the Companies and the
Sellers in connection with the Businesses of their respective Assets
does not infringe the rights of any other person or entity including,
but not limited to, patent, copyright, trademark, and other
intellectual property rights, and none of the Companies or Sellers
with respect to the Businesses has received any notice claiming any
such infringement.
5.24 Insurance.
(a) Schedule 5.24 lists by respective Business the following
information with respect to each insurance policy (including
policies providing property, title, liability and workers'
compensation coverage and bond and surety arrangements) to which
either of the Companies is a party or a named insured on the
date of this Agreement:
(i) Name, address and telephone number of agent or broker;
(ii) Name of the insurer, the name of policyholder and the
name of each covered insured;
(iii) The policy number and period of coverage; and
(iv) The coverage amount or limit and deductible or
coinsurance amount.
Each of the listed policies are legal, valid, binding,
enforceable and in full force and effect. BFI has delivered to
Superior (with a copy to its counsel) true and complete copies
of each policy listed in Schedule 5.24. Each such policy,
together with all other insurance policies of Sellers respecting
the Businesses or Assets, will be maintained in full force and
effect on its current coverage terms through the respective
Closing for the sale of the Business to which they relate. None
of the Sellers or Companies nor, to the knowledge of the
Sellers, any other party to the policies is in breach or default
(including with respect to the payment of premiums or the giving
of notices), and no event has occurred which, with notice or the
lapse of time, would constitute such a breach or default, or
permit termination, modification, or acceleration, under such
policies; and no party to the policies has repudiated any
provision thereof. All policies of insurance listed on
Schedule 5.24 or otherwise relating to the Businesses are
"claims made" policies.
(b) Except as listed by respective Business on Schedule 5.24(b), to
the best knowledge of Sellers, for the preceding three (3) years
there have been no losses or claims incurred by a Seller or
Company, with respect to its Business, in excess of $10,000 per
occurrence or in the aggregate for a series of similar or
related claims, regardless of whether insured or not, under the
following insurance coverages: workers' compensation,
advertising, pollution, public, products, auto, or officers'
and/or directors' liability, crime, fidelity or property losses
(including business interruption). There are no workers
compensation claims by employees of any Business pending, nor
has any injury occurred to any employee of any Business which
could give rise to a workers compensation claim.
(c) Schedule 5.24(c) lists by respective Business, to the best
knowledge of Sellers, the worker's compensation claims
experience of the Companies and Sellers with respect to its
respective Business, for each year for the last three (3) years
as follows: total incurred, total paid, total outstanding and
total number of claims.
5.25 Employee Benefit Plans. Schedule 5.25 is a complete and accurate
list by respective Business of all retirement and other employee
benefit plans currently in effect for the Companies with respect to
the Businesses and of all retirement plans and employee benefit plans
which the Companies have maintained or contributed to in the past.
None of the retirement plans listed on Schedule 5.25 (individually
referred to as a "Plan"), or any trusts created thereunder, nor any
trustee or administrator or fiduciary thereof, has engaged in a
"prohibited transaction," as such term is defined in Section 4975 of
the Code, which would subject the Plan, any such trust or any trustee
or administrator or fiduciary thereof, or any party dealing with the
Plan or any trust to the tax or penalty on prohibited transactions
imposed by Section 4975 of the Code. None of such Plans nor any
trusts thereunder has been terminated, nor have there been any
"reportable events" with respect thereto, as that term is defined in
Section 4043 of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"). Neither the Companies nor the Sellers are a
participant in a Multi-Employer Plan, as defined in Section 3(37) of
ERISA. The value of the assets of each Plan will, as of the
respective Closing Date, equal or exceed the present value of all
accrued benefits under such Plan. Each Plan and trust and all
provisions thereof are in compliance with ERISA and with the
requirements imposed for the "qualification" of the Plan under
Section 401(a) of the Code. The Companies and Sellers, and the
administrator of each Plan, have complied in all material respects
with all reporting and disclosure requirements with respect to the
Plan.
5.26 No Representations or Warranties Regarding the Forest Lawn Landfill.
Notwithstanding any other provisions of this Agreement (but otherwise
not affecting or limiting the provisions of Section 8.23 or the
referenced landfill divestiture agreement), none of the Sellers or
the Companies make any representations or warranties whatsoever
regarding the Forest Lawn Landfill (as hereafter defined) or any
associated Liabilities.
5.27 Disclosures. With respect to the Sellers, Companies, Assets, Assumed
Liabilities or Businesses, neither this Agreement, any schedule or
exhibit to this Agreement, nor any other Ancillary Instrument
contains any untrue statement of a material fact.
ARTICLE 6.
BUYERS' REPRESENTATIONS AND WARRANTIES
Buyers, jointly and severally, represent and warrant to Sellers as
follows:
6.1 Existence and Qualification. Buyers are each a corporation duly
incorporated, validly existing and in good standing under the laws of
the respective state of their incorporation.
6.2 Authority. Buyers have all requisite corporate power and authority
to enter into this Agreement and the Ancillary Instruments and to
perform their obligations hereunder and thereunder. The execution,
delivery and performance of this Agreement and the Ancillary
Instruments have been duly and validly authorized by all necessary
corporate and other action on the part of Buyers. This Agreement and
the Ancillary Instruments constitute valid and binding obligations of
Buyers, enforceable against them in accordance with their respective
terms, except to the extent such enforcement may be delayed, hindered
or otherwise affected by bankruptcy, insolvency, other similar laws
relating to the enforcement of creditors' rights generally or general
principles of equity.
6.3 No Conflicts. Neither the execution, delivery and performance of
this Agreement and the Ancillary Instruments, nor the consummation of
the transactions provided for herein or therein, will conflict with
or result in a breach of the charter or bylaws of Buyers or any of
the terms, conditions or provisions of any material agreement or
instrument to which Buyers are a party or by which it is bound or
will result in a violation of any applicable Law or Order applicable
to Buyers.
6.4 No Brokers. All contacts, introductions and negotiations relating to
this Agreement and the transactions contemplated hereby have been
carried out without the intervention of any person acting on the
Buyers' behalf in such manner as to give rise to any claim, Liability
or Litigation against Sellers for any brokerage or finder's
commission, fee or similar compensation.
ARTICLE 7.
EMPLOYEES - EMPLOYEE BENEFITS
7.1 Affected Employees; Employee Meetings and Interviews. "Affected
Employees" shall mean employees of the BFI Subsidiaries who are
employed by a Buyer and the employees of the Companies who continue
to be employed by such Company, in each case immediately after the
respective Closing for the sale of such Business. Prior to the
Closings, Sellers will, and will cause the Companies to, afford to
the authorized personnel and representatives of Buyers access to the
employees of the Businesses to allow Buyers to determine which
employees should become Affected Employees, including holding group
employee meetings and individual employee interviews. At the request
of Buyers, Sellers and Companies shall also provide to Buyers such
personnel records of such employees as Buyers reasonably request,
with all such records to be held in strict confidence by Buyers. As
far in advance as possible of each respective Closing Date hereunder,
Buyers shall use their best efforts to advise Sellers of which
employees of the BFI Subsidiaries or Companies that the Buyers do not
then believe will be offered the opportunity immediately after such
Closing Date to be an Affected Employee.
7.2 Retained Responsibilities. Sellers, jointly and severally, agree to
satisfy, or cause its insurance carriers to satisfy, all claims for
benefits, whether insured or otherwise (including, but not limited
to, workers' compensation, life insurance, medical and disability
programs), under the Sellers' or Companies' employee benefit programs
brought by, or in respect of, Affected Employees and other employees
and former employees of the Sellers or Companies, which claims arise
out of events occurring on or prior to the respective Closing Date.
7.3 Payroll Tax. Sellers jointly and severally agree to make a clean
cut-off of payroll and payroll tax reporting with respect to the
Affected Employees paying over to the federal, state and city
governments those amounts respectively withheld or required to be
withheld for periods ending on or prior to the relevant Closing Date
for the Business being sold. Sellers also agree to issue, by the
date prescribed by IRS regulations, Forms W-2 for wages paid through
the relevant Closing Date for the Business being sold. Except as set
forth in this Agreement, Buyers and the Companies shall be
responsible for all payroll and payroll tax obligations for Affected
Employees after the relevant Closing Date for the Business being
sold.
7.4 Termination Benefits.
(a) If any Affected Employee shall cease to be employed by any
Buyer, Company or Affiliate, other than terminated for "cause"
within the first 90 days after the Closing Date for the sale of
the particular Business for which the Affected Employee was
initially employed (herein, the "Relevant Closing Date"), then
Sellers, jointly and severally, shall pay to such employee any
and all severance payments and other termination benefits to
which such Affected Employee would have been entitled under
Sellers' employee benefit and severance plans in effect prior to
such Closing Date, which payments and benefits shall be in full
and complete satisfaction of any and all severance or
termination benefits otherwise due such employee by any Buyer,
Company, Seller or Affiliate (exclusive of rights under Law).
(b) If any action on the part of Sellers or the Companies prior to
the Closing for the relevant Business, or if the sale to Buyers
of the Businesses, Assets or Shares pursuant to this Agreement
or the transactions contemplated hereby, or if the failure by
Buyers to hire as an Affected Employee any employee of Sellers
or the Companies prior to the relevant Closing, shall directly
result in any Liability (i) for severance payments or
termination benefits or (ii) by virtue of any state, federal or
local "plant-closing" or similar Law, such Liability shall be
the sole joint and several responsibility of Sellers, and
Sellers shall, jointly and severally, indemnify and hold
harmless Buyers against such Liability without regard to any
limitations under Article 10.
7.5 Waiver of Applicable Waiting Periods. Buyers shall waive the waiting
periods for the benefit plans of Buyers (or the Companies after
Closing), including without limitation medical, dental, disability,
vacation and pension plans, with respect to each Affected Employee,
other than Buyers' 401(k) plan which, by its terms, does not allow
for such a waiver. Each such Affected Employee shall be eligible for
coverage in accordance with, and subject to, the other provisions of
Buyers' and Companies' plans after the relevant Closing. Buyers and
Companies shall further apply such respective Affected Employees'
years of service with any BFI Affiliate for purposes of calculating
benefits under all of Buyers' and Companies' benefit plans after the
relevant Closing.
7.6 No Third-Party Rights. Nothing in this Agreement, express or
implied, is intended to confer upon any of Sellers' or Companies'
former, current or future employees, collective bargaining
representatives, job applicants, any association or group of such
persons or any Affected Employees any rights or remedies of any
nature or kind whatsoever under or by reason of this Agreement,
including, without limitation, any rights of initial or continuing
employment.
7.7 Termination of Benefit Plan Coverage. BFI will terminate the
Companies' participation in all employee benefit plans of BFI or its
Affiliates on the respective Closing Date for the sale of the related
Business.
ARTICLE 8.
COVENANTS AND ACTIONS
The parties hereto agree as follows:
8.1 Access. Between the date of this Agreement and each respective
Closing Date with respect to the Business, Assets and/or Shares not
yet then purchased by Buyers, Sellers will, and will cause the
Companies to, afford to the authorized personnel and representatives
of Buyers such access to the properties, books, records and personnel
of Sellers and Companies as Buyers or their authorized personnel or
representatives may from time to time reasonably request and shall
furnish Buyers and their authorized personnel or representatives with
such additional financial and operating data and other information
regarding the Businesses, Assets and Assumed Liabilities as any of
them may from time to time reasonably request; provided, however,
such access shall not materially exceed the scope of access afforded
the authorized personnel and representatives of Buyers immediately
prior to the date hereof.
8.2 Operations. Between the date of this Agreement and each respective
Closing Date with respect to the Business, Assets and/or Shares not
yet then purchased by Buyers, BFI will, and will cause the Companies
and the BFI Subsidiaries to, with respect to the Businesses:
(a) carry on the respective Businesses in substantially the same
manner as currently conducted and will not make or institute any
material changes in its methods of service, transporting,
transfer, disposal, recycling, purchase, sale, management,
accounting or operation;
(b) maintain and repair their respective Businesses' Equipment,
Vehicles and other Assets and Real Property in their present
condition consistent with past practice, ordinary wear and tear
excepted;
(c) perform all of their respective material obligations under any
Contracts, Permits and/or Leases to which they are a party
respecting their Business, and otherwise will not do or omit any
act, which may cause a breach of any Material Contract, Material
Lease, Permit, Law or Order, or any breach of any
representation, warranty, covenant or agreement made by Sellers
herein, or which would have required disclosure on a schedule
hereto had it occurred prior to the date of this Agreement;
(d) keep in full force and effect present insurance policies or
other comparable insurance coverage and all Permits, including
Environmental Permits;
(e) with respect to each Business, use their respective commercially
reasonable best efforts to maintain and preserve their
respective business organizations intact, retain their
respective present employees and maintain their respective
relationships with Government Entities, lessors, licensors,
suppliers, customers, employees and others having business
relations with such respective Business;
(f) keep the Businesses and the goodwill associated therewith intact
in all material respects, including such Businesses' present
operations, physical facilities and working conditions; and
(g) continue the application process for expansion of the Green Tree
Landfill in cooperation and consultation with Buyers.
8.3 Maintenance of Condition. Between the date of this Agreement and
each respective Closing Date with respect to the Business, Assets
and/or Shares not yet then purchased by Buyers, the Companies and the
Sellers will not, without the prior written consent of Superior,
which shall not be unreasonably withheld with respect to any
Business:
(a) enter into any (i) Material Contract or Material Lease or (ii)
any other Contract or Lease or incur or agree to incur any
Liability or make any capital expenditures, except in the
ordinary course of business consistent in amount and nature with
past practice and in no event in excess of $5,000 individually
or $10,000 in the aggregate;
(b) except in the ordinary course of business consistent with past
practice, increase the compensation payable or to become payable
to any officer, employee or agent, or make any bonus payment to
such person;
(c) sell, assign, lease or otherwise transfer or dispose of any
Assets, except in the ordinary course of business consistent
with past practice and, with respect to any Business, in no
event having a book value of in excess of $5,000 individually or
$10,000 in the aggregate; or
(d) amend either Company's respective corporate charters or bylaws.
8.4 Consents; Cooperation. Beginning immediately after the execution of
this Agreement and under Buyers' specific direction and supervision,
subject to the other provisions of this Agreement, Sellers will, and
will cause the Companies to, actively cooperate and coordinate with
Buyers, and each will use its respective commercially reasonable best
efforts (to be deemed to not include the renegotiation of any Permit
terms or the financial terms of any Material Contract or Material
Lease), in obtaining estoppel certificates respecting a real estate
purchase option for or relating to the M&N Landfill and any requisite
Government Entity consents or authorizations to the consummation of
the respective transactions contemplated by this Agreement, with the
understanding that Sellers will at their sole cost and expense,
attempt to obtain the consents to assignment of the municipal
customer Contracts set forth in Schedule 11.3 prior to the Closing
for the sale of the respective Business to which such Contracts
relate; provided that if such consents are not obtained within thirty
(30) days following the relevant Closing Date, Sellers shall pay to
Buyers an amount equal to (i) for municipal customer Contracts of the
Green Bay Business the product of four (4) multiplied by the average
monthly revenues previously received by BFIW, MNR or MND from such
non-assigned municipal customer accounts over the past twelve (12)
months of each such Contract and (ii) for municipal customer
Contracts of the ▇▇▇▇▇▇ Business, the product of five (5) multiplied
by the average monthly revenues previously received by BFIP or HLC
from such non-assigned municipal customer accounts over the past
twelve (12) months of each such Contract (provided that the monthly
multiplier shall be seven and one-half (7-1/2) for the municipal
Contract with the City of ▇▇▇▇▇▇ if such Contract is not assigned)
which amount shall be repaid in full to Sellers if within twelve (12)
months following the relevant Closing Date, Buyers are awarded such
non-assigned municipal customer account on substantially the same
terms and conditions, and at a price equal to or greater than that of
the non-assigned municipal customer account and for a period at least
as long as that which remained in the non-assigned municipal customer
account at the relevant Closing Date. Similarly, if BFIP is awarded
a Contract for the Borough of ▇▇▇▇▇▇▇ based on BFIP's current bid
therefore, then Sellers will, at their sole cost and expense, attempt
to obtain consent for the assignment (if such assignment is required)
of such Contract to Superior-Pennsylvania in accordance with this
Section 8.4, provided that if such consent is not obtained within 30
days of the award date of such Contract Seller shall pay Superior-
Pennsylvania an amount equal to the product of 5 multiplied by the
average monthly revenues previously received by BFIP from the
predecessor Contract over the past twelve months under the
predecessor Contract. It is also understood and agreed that,
beginning immediately after the execution of this Agreement, with the
cooperation of Sellers and Companies, Buyers intend to solicit the
commercial account customers of the Businesses and request that such
customers execute a consent to assignment to Buyers of such
customers' Contracts with Sellers (utilizing a form letter previously
provided by Superior to BFI), with such assignment effective only
upon the actual Closing Date for the respective Business which
services such customers. Sellers will, and will cause the Companies
to, actively cooperate with Buyers, their representatives, agents and
counsel in the preparation of any documents or other material which
may be required by any Government Entity, or reasonably required by
any customer, landlord or other third party, in connection with any
approvals for consummation of the transaction contemplated by this
Agreement, including filing any necessary applications for the
transfer, reissuance or replacement of the operating licenses or
other Environmental Permits for the operations and facilities being
transferred to Buyers hereunder. If any of the transactions
contemplated by this Agreement, without the consent of a third party
or Government Entity, would constitute a breach of any Contract,
Lease, Permit or Law to which any of the Companies or Sellers is a
party, or in which any way would adversely affect the Businesses, and
such consent has not been obtained as of the respective Closing Date,
but nevertheless Superior elects to consummate the transactions
contemplated herein, the Sellers will cooperate and coordinate with
Superior thereafter in all respects to attempt to obtain such third
party or Government Entity consent.
8.5 Covenant and Agreement of the Companies to Perform Their Obligations
Hereunder. The Sellers covenant and agree that they shall, in a
prompt and timely fashion, perform, discharge or otherwise be
responsible in and with respect to each of the Sellers' affirmative
and negative covenants and agreements set forth in this Agreement.
8.6 Environmental Covenants. The Sellers will provide, or will cause to
be provided, Buyers written notice, with respect to any of the
Businesses, of (a) any actual or threatened release of Hazardous
Substances; (b) any receipt of any environmental claim or Litigation;
or (c) any violation of any Environmental Laws or Environmental
Permits by or against any Seller or Company in the conduct of the
Businesses.
8.7 Publicity; Confidentiality.
(a) Other than as contemplated below, none of Buyers, Sellers or
Companies will make any public disclosure of this Agreement or
its terms or conditions (or the February 25, 1997 letter of
understanding between Superior and BFI), including particularly
the purchase price of the individual Businesses being sold
hereunder, or the transactions contemplated hereby, and the
Buyers shall hold in confidence and not disclose to any person
for any purpose the "confidential information" received by
Buyers from Sellers or Companies with respect to each Business
without prior consultation with the other principal party
hereto, except such disclosure as may be required (a) by
applicable Laws, Orders or by obligations pursuant to any
listing agreement with or other requirement of any national
securities exchange (including the Nasdaq Stock Market) to which
either may be a party or (b) to disclose such information to (i)
its representative officers, directors, employees, agents and
consultants (collectively, "Representatives") who need to
evaluate the information on their behalf for the purposes
described herein; (ii) customers, lessors and Government
Entities as required to obtain consents and approvals hereunder
or the issuance or replacement of Permits, including
particularly to facilitate the consent to assignment of customer
Contracts to Buyers hereunder; or (iii) Government Entities as
otherwise required; provided, further, that Buyers may disclose
the information in response to any legally enforceable summons
or subpoena or in order to comply with any Order or Law
applicable to Buyers and provided further that, in response to
ordinary course inquiries Sellers may disclose the existence of
this Agreement (other than its specific terms and conditions)
and the identity and/or location of the Businesses sold. In
accordance with clause (a) above and to facilitate clause (b),
it is understood and agreed that, upon the execution of this
Agreement, Superior intends to publicly announce all or parts of
this Agreement and shall provide the other party with an advance
copy of any press release with respect thereto. If BFI or an
Affiliate intends to issue a press release or other similar
public disclosure, it shall provide Superior with an advance
copy thereof and neither BFI nor any Affiliate shall include in
such press release or public disclosure information regarding
the allocation of the purchase price among the Businesses being
sold hereunder as provided in Exhibit 3.1, except as required by
Law and subject to the other provisions of this section. If
either party becomes legally compelled to disclose such
confidential information, such party shall provide the other
party with prompt notice of such requirement so that the other
party may seek a protective order or other appropriate remedy.
Each party shall take all commonly reasonable steps necessary to
assure adherence by its Representatives to the provisions of
this Agreement respecting the confidentiality of information.
The obligation of Buyers to keep information confidential shall
not apply to any information which:
(i) is known to Buyers prior to its disclosure by BFI;
(ii) is in general use by competitors of Buyers;
(iii) is or becomes part of the public domain without any
breach by Buyers of any obligation of confidentiality
set forth herein; or
(iv) is communicated to any Buyer by a third party who is not
bound by a confidentiality agreement with BFI with
respect to such information.
(b) Upon termination of this Agreement with respect to the sale of
any Business hereunder, Buyers will, upon request of BFI, return
to BFI or provide evidence satisfactory to BFI that it has
destroyed, all confidential information received from Sellers or
the Companies in connection with the sale of such Business
contemplated by this Agreement.
(c) BFI and Superior expressly covenant and agree that if either of
them violates, or overtly threatens to violate, any of the
covenants in Section 8.7(a) or (b) above, the other party hereto
shall be entitled to an accounting and repayment (which
repayment may be effected through such party's offset of such
benefits against any payments otherwise owed by such party to
the other party hereunder or otherwise) of all profits,
compensation, commissions, remuneration or benefits which such
party, directly or indirectly, have realized and/or may realize
as the result of, arising out of, or in connection with any such
violation or threatened violation. BFI and Superior acknowledge
further that irreparable injury may result to the other party
and its business in the event of a breach by any party of any of
the covenants in Section 8.7(a) or (b) above. BFI and Superior
also acknowledge and agree that the damages or injuries which
the other party will sustain as a result of a breach by any such
party of any of the covenants in Section 8.7(a) or (b) above are
difficult to ascertain and money damages alone may not be an
adequate remedy to such party. BFI and Superior therefore
expressly agree that if a controversy arises concerning the
rights or obligations of a party under any of the covenants in
Section 8.7(a) or (b) above, such rights or obligations shall be
enforceable in a court of equity by decree of specific
performance and the parties hereto shall also be entitled to any
injunctive relief necessary to prevent or restrain any violation
of any of the covenants above. Such relief, however, shall be
cumulative and nonexclusive and shall be in addition to any
other remedy to which the parties may be entitled. In addition,
the parties hereto shall also be entitled to actual attorney's
fees and costs incurred in any action in which it is successful
in establishing a violation of any of the covenants above. The
provisions of Section 15.6 requiring arbitration of disputes
hereunder shall not be applicable to violations or alleged
violations of any of the covenants of Section 8.7(a) or (b)
above.
8.8 Exclusivity. Between the date of this Agreement and each respective
Closing Date with respect to the Businesses, Assets and/or Shares not
yet then purchased by Buyer, none of the Sellers, the Companies or
any of their Affiliates will directly or indirectly (through a
Representative, agent, director, officer, employee or otherwise) (i)
solicit, initiate or encourage the submission of any proposal,
indication of interest or offer from any person relating to the
acquisition of any capital stock or other voting securities, or any
substantial portion of the assets of, any of the Companies or the
Businesses (including any acquisition structured as a merger,
consolidation or share exchange) or (ii) solicit, initiate or
participate in any discussions or negotiations regarding, furnish any
information (other than information provided by Sellers to parties
prior to February 25, 1997, as to which Sellers have requested in
writing that such prior recipients return all such information to
BFI) with respect to, assist or participate in, or facilitate in any
other manner any effort or attempt by any person to do or seek any of
the foregoing. None of the Sellers will vote shares owned or
controlled by them in favor of any such acquisition structured as a
merger, consolidation or share exchange. The Sellers will notify
Superior immediately if any person makes any indication of interest,
proposal, offer, inquiry or contact with respect to any of the
foregoing.
8.9 Schedule Updates. Until the close of business on the day prior to
the Closing of the final Business to be sold to Buyers hereunder, the
Sellers shall advise Superior in writing within ten (10) days of the
end of each calendar month of any changes to the Schedules to this
Agreement to reflect any matters relating to such Business not sold
to Buyers which occur after the date of this Agreement which, if
existing on the date of this Agreement, would have been required to
be described in such Schedule to this Agreement, provided that no
such disclosure shall cure or mitigate any breach of any
representation or warranty which was inaccurate when made.
8.10 Risk of Loss. All risk of loss to the Assets and Shares shall be
borne by the Sellers until consummation of the respective Closing
with respect to such particular Assets or Shares. In the event that
any material item or portion of such Assets is damaged or destroyed
prior to the respective Closing with respect to such particular
Assets or Shares, Superior shall have the right, at its option, to
either terminate this Agreement with respect to such related
Business, or require the payment to it of any proceeds of insurance
payable to the Companies or Sellers on account of such damage or
destruction, including business interruption insurance, or require
the Sellers to repair or replace such damaged or destroyed item or
portion prior to such Closing at their sole cost and expense.
8.11 Title Insurance. Prior to, or as promptly as practicable after, each
respective Closing with respect to the sale of any Business
hereunder, and at BFI's sole cost and expense, Superior shall have
obtained, with respect to each parcel of owned Real Property then
being sold (including the Green Bay Collection Company Location) or
which is owned by the Company being sold (including, the M&N
Landfill, the M&N Collection Company, the real estate purchase
options relating to the M&N Landfill, and the Green Tree Landfill), a
commitment for the most recent version of ALTA Owner's Policy of
Title Insurance (or equivalent policy reasonably acceptable to
Superior if the owned Real Property is located in a state in which an
ALTA Owner's Policy of Title Insurance is not available) issued by
Chicago Title Insurance Company in such amount as Superior may
reasonably determine to be the fair market value of such Real
Property (including all improvements located thereon), insuring title
to such Real Property to be in the condition contemplated by this
Agreement as of such Closing. Each title insurance policy delivered
under this Section 8.11 shall (i) insure title to the owned Real
Property and all recorded easements benefitting such owned Real
Property; (ii) except with respect to matters disclosed pursuant to
Section 5.16 herein, contain an "extended coverage endorsement"
insuring over the general exceptions contained customarily in such
policies (i.e., result in removal of all standard, or pre-printed,
title insurance exceptions); (iii) contain an ALTA Zoning Endorsement
(except with respect to the Real Property located in the Commonwealth
of Pennsylvania or as otherwise disclosure pursuant to Section 5.16
herein); (iv) contain an endorsement insuring that the owned Real
Property described in the title insurance policy is the same real
estate as shown on the Survey (as defined below) delivered with
respect to such property; (v) contain an endorsement insuring that
each street adjacent to the owned Real Property is a public street
and that there is direct and unencumbered vehicular access to such
street from the owned Real Property, except with respect to matters
disclosed pursuant to Section 5.16 herein; (vi) contain an inflation
endorsement providing for annual adjustments in the amount of
coverage; (vii) except with respect to the Real Property which is the
subject of those real estate purchase options relating to the M&N
Landfill, if the owned Real Property consists of more than one record
parcel, contain a "contiguity" endorsement ensuring that all of the
record parcels are contiguous to one another; (viii) contain a "non-
imputation" endorsement to the effect that title defects known to the
officers, directors and stockholders of the owner prior to the
Closing shall not be deemed "facts known to the insured" for purposes
of the policy; and (ix) contain such other endorsements as Superior
may reasonably request. To the extent any title insurance commitment
or policy delivered under this Section 8.11 after the relevant
Closing Date for the sale of the Business as to which such Real
Property relates does not insure against or include or cover all of
the items set forth in the sentence above or shall otherwise reflect
a defect or deficiency in title to such Real Property, then BFI and
Superior shall mutually agree on the impact that such deficiency has,
or is likely to have, on the fair market value and the use and
operation of the affected Real Property. If Superior and BFI cannot
agree on the dollar amount of such impact within thirty (30) days
after the commencement of discussions between the parties with
respect to such matter, then the determination of such impact shall
be submitted to a mutually agreeable local independent MIA appraiser
who will make such a determination within thirty (30) days of his or
her engagement and which determination shall be binding on the
parties. Within ten (10) days of the determination of the dollar
amount of such impact (whether by agreement or by the appraiser), BFI
shall reimburse Superior in cash for the dollar amount of such impact
or Superior may otherwise offset such amount against any other
payments owed to Sellers. BFI shall pay the reasonable fees and
costs of any such appraiser.
8.12 Surveys. With respect to each parcel of owned Real Property then
being sold or which is owned by the Company being sold, Superior will
procure, at BFI's sole cost and expense, as promptly as practicable
after each Closing with respect to the sale of any Business, a
current survey of the Real Property certified to the Companies,
Superior and Chicago Title Insurance Company, prepared by a licensed
surveyor and conforming to current ALTA Minimum Detail Requirements
for Land Title Surveys, disclosing the location of all improvements,
easements, party walls, sidewalks, roadways, utility lines and other
matters shown customarily on such surveys, and showing access
affirmatively to public streets and roads (each, a "Survey"). To the
extent any Survey shall disclose any survey defect or encroachment
from or onto the owned Real Property which has not been cured or
insured over within fifteen (15) days after Buyers' request therefor,
Sellers shall take such mutually agreed reasonable action to cure or
mitigate such defect or encroachment as BFI and Superior mutually
agree or otherwise shall follow the process set forth in Section 8.11
above so that BFI will reimburse Superior for the dollar amount of
the adverse impact that such defect or encroachment is determined to
have upon the fair market value and use and operation of such
affected Real Property.
8.13 Environmental Audits. Buyers have retained firms engaged in the
regular business of environmental engineering to conduct such
environmental audits, assessments and due diligence of the
Businesses, operations and the owned or leased Real Property occupied
and used by Companies or Sellers with respect to the Businesses as
Buyers in their discretion shall consider necessary or appropriate.
Buyers shall deliver to BFI a complete and accurate copy of any
reports resulting from such environmental audits or assessments upon
the earlier to occur of (i) the respective Closing of the Business
the subject of such report and (ii) any termination of this Agreement
contemplated by Section 14 of this Agreement if Sellers pay the cost
of such reports.
8.14 Removal of ▇▇▇▇▇▇▇▇ Location USTs. Sellers, jointly and severally,
at their sole cost and expense, will promptly retain a firm
reasonably acceptable to Superior engaged in environmental consulting
and/or engineering to remove the underground storage tanks and
related contaminated soils and remediate any affected groundwater at
the ▇▇▇▇▇▇▇▇ Location in compliance with all Environmental Laws
(including, without limitation, the technical and corrective action
requirements under the Pennsylvania Storage Tank Law, regardless of
whether the tanks are regulated thereunder) and to the reasonable
satisfaction of Buyers.
8.15 HSR Act Filings. To the extent such filings have not been completed
prior to the execution of this Agreement, BFI and Superior will each,
in cooperation with the other, file any reports or notifications that
may be required to be filed by it under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust Improvements Act ("HSR Act") and any counterpart or similar
state statutes, with the Federal Trade Commission, the Antitrust
Division of the Department of Justice and any other appropriate state
Government Entity, and shall furnish to the other all such non-
confidential information in its possession as may be necessary for
the completion of the reports or notifications to be filed by the
other. Prior to making any communication, written or oral, with the
Federal Trade Commission, the Antitrust Division of the Department of
Justice or any other Government Entity or members of their respective
staffs with respect to this Agreement or the transactions
contemplated hereby, BFI and Superior will each consult with the
other. BFI shall comply with all requirements of any consent decrees
applicable to it in any state and will hold Buyers harmless
therefrom.
8.16 Sales Tax Matters. Within ten (10) days after each Closing for the
sale of any Business hereunder or as soon thereafter or practicable,
Sellers shall obtain all sales tax clearance certificates from each
applicable state agency regarding Sellers' liability for sales and
use tax and otherwise take all reasonable actions to assist Buyers in
qualifying for any applicable occasional sale exemption.
Additionally, BFIP shall deliver, within ten (10) days after the
Closing Date for the sale of the ▇▇▇▇▇▇ Business or as soon
thereafter as practicable: (i) to the Pennsylvania Department of
Revenue, a notice in accordance with the provisions of 72 Pa. Stat.
▇▇▇. Section 7240 regarding BFIP's liability for sales and use tax if
such statute so provides for such liabilities; (ii) to the
Pennsylvania Department of Revenue, a notice in accordance with the
provisions of 72 Pa. Stat. ▇▇▇. Section 7321.1 regarding BFIP's
liability for personal income tax withholding if such statute so
provides for such liabilities; (iii) to the Pennsylvania Department
of Revenue, a notice in accordance with the provisions of 72 Pa.
Stat. ▇▇▇. Section 1403 regarding BFIP's liability for corporate
taxes if such statute so provides for such liabilities; and (iv) to
the Pennsylvania Department of Labor and Industry, a notice in
accordance with the provisions of 43 Pa. Stat. ▇▇▇. Section 788.3
regarding BFIP's liability for unemployment compensation taxes if
such statute so provides for such liabilities. Additionally, BFIP
and HCL shall deliver to Buyer, within ten (10) days after the
Closing Date for the sale of the ▇▇▇▇▇▇ Business or as soon
thereafter as practicable, tax lien certificates from the
Pennsylvania Department of Revenue showing no Liens against BFIP or
HLC. BFIP shall file with the Pennsylvania Department of Revenue an
Application For Tax Clearance Certificate within ninety (90) days of
the Closing Date for the sale of the ▇▇▇▇▇▇ Business or as soon
thereafter as practicable and shall deliver a Tax Clearance
Certificate from the Pennsylvania Department of Revenue to Buyers
upon issuance of that certificate.
8.17 Transition Period Consulting Arrangements. For a transition period
equal to sixty (60) days after the Closing Date for the sale of the
▇▇▇▇▇▇ Business, Sellers and their Affiliates shall make available to
Superior-Pennsylvania and HLC the services of ▇▇▇ ▇▇▇▇▇▇▇ to assist
in the transition of ownership, management and operation of such
Business and to facilitate the retention of customer accounts and the
transition of relationships with applicable governmental agencies,
among other things. For a transition period equal to sixty (60) days
after the Closing Date for the sale of the Columbus Business, Sellers
and Affiliates shall make available to Superior-Ohio the services of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to assist in the transition of ownership, management
and operation of such Business and to facilitate the retention of
customer accounts and the transition of relationships with applicable
governmental agencies, among other things. It is contemplated and
agreed that for the first five business days of each such respective
60-day consulting period, Messrs. ▇▇▇▇▇▇▇'▇ and ▇▇▇▇▇▇▇'▇ services
shall be performed in person and on-site at the location(s) of the
▇▇▇▇▇▇ Business or Columbus Business, respectively, or otherwise at
locations of customers or government agencies relating to such
Business or other reasonable locations as may be required to
adequately perform their services, and on a substantially full-time
basis. After the first five business days of each such respective
60-day consulting period, Messrs. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ shall
reasonably provide their services from time to time and as reasonably
needed and determined by Buyers, by telephone. During each such
respective 60-day consulting period, Sellers and their Affiliates
agree to make Messrs. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ reasonably available and to
reasonably accommodate any reasonable requests of Buyers. In
consideration of Messrs. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ providing these
services, Buyers will reimburse Sellers a consulting fee at a
mutually agreed upon daily rate reflecting their current compensation
levels for each day for which Messrs. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ shall
perform services and shall otherwise reimburse Sellers for all
reasonable costs and expenses associated with providing Buyers with
such services. In connection with providing such services and by
reason of the former positions with the ▇▇▇▇▇▇ Business and the
Columbus Business each of Messrs. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ shall keep
confidential and not disclose during or after the consulting period
any confidential information of Buyers to any third person, including
BFI or any of its Affiliates, except to authorized representatives of
Buyers or as required by Law.
8.18 Billing System Transfer. Promptly hereafter, Sellers will, in
cooperation and coordination with Superior and under Superior's
direction, effect the transition and transfer of its computerized
billing data from the system(s) currently being used by Sellers and
Companies to Superior's billing system; provided, however, that
Sellers shall complete all billing functions for each Business and
for and through any other calendar month end which occurs after the
Closing with respect to the sale of such Business if such Closing
takes place on or after the 15th day of such month.
8.19 Purchase of Green Bay Collection Company Location; Interim Period
Sublease. Immediately prior to, and contingent upon, the Closing for
the sale of the Green Bay Business, BFI and BFIW will use their best
efforts to as soon as practicable purchase good and marketable, fee
simple title to the Real Property (land and building) constituting
the Green Bay Collection Company Location at the price and on other
terms satisfactory to Buyers and Buyers will contemporaneously
reimburse BFIW in cash for the mutually agreed upon purchase price
thereof when BFIW contemporaneously conveys good and marketable, fee
simple title, free and clear of all Liens, to the land and building
constituting the Green Bay Collection Company Location to Superior-
Wisconsin at such Closing or within ninety (90) days thereafter,
provided, however, that if title is not transferred there shall be no
liability to BFI or BFIW. BFIW shall continue to remain solely
responsible for all other obligations under the Real Property Lease
for the Germantown property. Until such time as BFIW shall convey
good and marketable, fee simple title, free and clear of all Liens,
to the land and building constituting the Green Bay Collection
Company Location to Superior-Wisconsin, BFI and BFIW shall, upon the
consent of the lessor (which BFI and BFIW will use their commercially
reasonable best efforts to obtain after the date hereof), sublease
such facility to Superior-Wisconsin upon the same terms and
conditions as the existing underlying Real Property Lease thereof by
BFIW (exclusive of the portion thereof attributable to the Germantown
Real Property) and, if title to such Real Property meeting the
requirements of Section 5.16(b)(i) cannot be conveyed to Superior-
Wisconsin (together with a title insurance commitment meeting the
requirements of Section 8.11 and a Survey meeting the requirements of
Section 8.12) on terms satisfactory to it within ninety (90) days
after the Closing of the sale of the Green Bay Business, then
Superior-Wisconsin may direct BFIW to the extent permitted by the
Real Property Lease for the Green Bay Collection Company Location to
(i) exercise its purchase option to acquire the land underlying the
Green Bay Collection Company Location at the option price thereof of
$125,000 and convey good and marketable, fee simple title, free and
clear of all Liens, to the same to Superior-Wisconsin for such price
and/or (ii) assign the Real Property Lease for the Green Bay
Collection Company Location to Superior-Wisconsin, but with no other
liability to BFI or BFIW.
8.20 Lease of Zanesville Transfer Station; Transfer of Improvements. At
the Closing of the sale of the Columbus Business, BFIO and Superior-
Ohio will enter into a mutually agreeable Real Property Lease of the
Real Property of the Zanesville Transfer Station at a monthly rental
rate of $1.00 per month and which Real Property Lease shall have a
term of two years, with three (3) successive one-year options to
renew such lease in favor of Superior-Ohio and provide Superior-Ohio
with a right of first refusal and an option to purchase such facility
at appraised fair market value as set forth in such Real Property
Lease. On the date all requisite final permits are received by
Superior-Ohio to operate the Zanesville Transfer Station, without
further deed or action on the part of any party and pursuant to this
Agreement, all ownership right, title and interest to the
improvements and fixtures constituting the Zanesville Transfer
Station shall be transferred to Superior-Ohio without further
consideration.
8.21 Subcontract to Haul Medical Waste; Disposal Agreement. At the
Closing of the sale of the ▇▇▇▇▇▇ Business, BFIP and Superior-
Pennsylvania will enter into a subcontract arrangement, on terms
mutually acceptable to both parties, allowing Superior-Pennsylvania
to the extent permitted by applicable Law, to continue to collect,
transport and dispose of the infectious and chemotherapeutic waste
currently collected, transported or disposed by BFIP in the conduct
of the ▇▇▇▇▇▇ Business until such time as Superior-Pennsylvania
receives the necessary Permits to perform such services on its own
and BFIP and Superior-Pennsylvania shall also enter into a mutually
acceptable five-year disposal agreement (with two (2) one-year
renewal options in favor of Superior-Pennsylvania) for such medical
waste with Superior-Pennsylvania allowing Superior-Pennsylvania to
dispose of such medical waste at Sellers' disposal site(s).
8.22 Return of Previously Distributed Confidential Information. Promptly
after the execution of this Agreement, Sellers shall undertake such
commercially reasonable steps to obtain the return, or confirm the
destruction of, all confidential information of the Businesses
previously distributed to other interested parties in connection with
soliciting indications of interest to acquire the Businesses to be
purchased by Buyers hereunder.
8.23 Divestiture of Forest Lawn Landfill to BFIP; Indemnification by BFI.
On the Closing Date for the sale of the ▇▇▇▇▇▇ Business to Buyers
hereunder, BFI and BFIP will enter into a divestiture agreement with
HLC providing that, as promptly as practicable, and in any event
within sixty (60) days (to the extent permitted by Law), after the
Closing for the sale of the ▇▇▇▇▇▇ Business, HLC shall transfer and
divest the Forest Lawn Landfill sites (including both the closed
solid waste municipal landfill and the closed solid waste
construction and demolition landfill) and all associated Real
Properties to BFIP or an Affiliate, together with any and all
associated Liabilities, all in full compliance with all applicable
Environmental Laws, Environmental Permits and Orders and otherwise to
the reasonable satisfaction of Buyers and its counsel. All costs,
fees and expenses of such disposition and transfer, including the
reasonable legal fees of Buyers' counsel, shall be paid by BFI.
Additionally, Sellers, jointly and severally, hereby indemnify, hold
harmless and fully release the Buyers, the Companies, and each of
Buyers' Affiliates (as hereinafter defined) from and against any and
all Claims (as hereinafter defined) asserted against, resulting to,
imposed upon, or incurred by any Buyer, Company or Buyers'
Affiliates, or any of the Businesses, Assets or Assumed Liabilities
transferred to Buyers or retained by Companies pursuant to this
Agreement, directly or indirectly, by reason of, arising out of or
resulting from directly or indirectly in any manner whatsoever the
ownership, use, possession, occupancy, operation, existence, closure
or transfer of the Forest Lawn Landfill and the associated Real
Properties and Liabilities, including without limitation, any
Liability arising under any Environmental Law, Environmental Permit,
Permit, Order, Law or Litigation, whether known or unknown,
contingent, fixed or occurring before the Closing Date. Sellers,
jointly and severally, acknowledge and agree that Sellers' and all
other parties' sole recourse for Claims or causes of action related
to the Forest Lawn Landfill site shall be against parties other than
the Buyers, Companies or Buyers' Affiliates and that economic
recovery may not be possible against some or all of such parties.
Sellers, jointly and severally, agree that if, notwithstanding the
provisions of this Section 8.23, a court of competent jurisdiction
determines, contrary to the intention of the parties hereto, that
this Section 8.23 does not bar the Claims and causes of action of the
Sellers or any other parties against the Buyers, Companies, or
Buyers' Affiliates, the provisions of this Section 8.23 shall serve
as the overwhelming factor in any equitable apportionment of response
costs under all applicable Environmental Laws, Orders or Litigation.
Sellers, jointly and severally, acknowledge and agree that the
provisions contained in this Section 8.23 were essential components
of the consideration for the agreement of Buyers to acquire the
Shares of HLC and the ▇▇▇▇▇▇ Business. Sellers' indemnification
obligations hereunder shall survive the Closing Date for the sale of
the ▇▇▇▇▇▇ Business indefinitely.
8.24 BFI Resolution of Payments to ▇▇▇▇▇▇/▇▇▇▇▇▇▇. Prior to the Closing
of the sale of the Green Bay Business, BFI or BFIW shall fully
resolve and pay Messrs. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ any and all purchase price
amounts or adjustments owing thereto for the purchase of MNR or MND
arising before or existing as of the Closing of the sale of the Green
Bay Business.
8.25 Specific Environmental Indemnification for Columbus Collection
Company Location. Sellers, jointly and severally, hereby agree to
indemnify, hold harmless and release the Buyers, the Companies and
Buyers' Affiliates, from and against any and all Claims asserted
against, resulting to, imposed upon, or incurred by any Buyer,
Company or Buyers' Affiliates, or any of the Businesses, Assets or
Assumed Liabilities transferred to Buyers or retained by Companies
pursuant to this Agreement, resulting from the ownership, use,
possession, occupancy, operation or lease by any BFI Affiliate of the
Columbus Collection Company Location, including without limitation,
any Liability arising under any Environmental Law, Environmental
Permit, Permit, Order, Law or Litigation, whether known or unknown,
contingent, fixed or occurring before the Closing Date for the sale
of the Columbus Business. Sellers' indemnification obligations
hereunder shall survive the Closing Date for the sale of the Columbus
Business indefinitely.
8.26 Long-Haul Customer Disposal Agreements. At the Closing of the sale
of the ▇▇▇▇▇▇ Business, BFI, BFIP and HLC will enter into a mutually
acceptable five-year disposal agreement (with two (2) one-year
renewal options in favor of HLC) for the continued disposal at the
Green Tree Landfill of the waste collected by BFIP (or any other
Affiliate) from the Long-Haul Customers of the ▇▇▇▇▇▇ Business at
mutually agreeable disposal rates and otherwise in form and substance
generally consistent with the medical waste disposal agreement
contemplated under Section 8.21. At the Closing of the sale of the
Columbus Business, BFIO and Superior of Ohio will enter into a
mutually acceptable five year disposal agreement (with two (2) one-
year renewal options in favor of Superior Ohio) for the continued
disposal at the Zanesville Transfer Station (or other alternative
transfer station designated by Superior-Ohio in that area) of waste
collected by BFIO (or any Affiliate) from the Long-Haul Customers of
the Columbus Business at mutually agreeable disposal rates and
otherwise in form and substance generally consistent with the medical
waste disposal agreement contemplated under Section 8.21.
8.27 Disposal Agreements Addenda. At the Closing of the sale of the Green
Bay Business, BFI and Superior will enter into addenda to certain
existing disposal agreements for the Milwaukee and Eau Claire,
Wisconsin markets, respectively, in substantially the form of Exhibit
"A" hereto ("Amended Disposal Agreements").
8.28 National Customer Accounts. For a period of five (5) years after the
respective Closing Date for the relevant Business, Sellers hereby
agree that any Buyer, Company or Affiliate thereof will be allowed a
first right of refusal to provide, in accordance with BFI's standard
subcontract for such services (a form of which has been provided to
Buyers), other than BFI's right to terminate the contract on 60 days
notice (which shall not apply), collection, recycling, transportation
and/or disposal service, on the same terms and conditions as
currently being provided by Sellers, to the place(s) of business of
currently existing national customers of Sellers which have locations
within the geographic boundaries of Section 9.1(A) with respect to
the Green Bay Business, Section 9.1(B) with respect to the Columbus
Business and Section 9.1(C) with respect to the ▇▇▇▇▇▇ Business,
respectively (collectively, the "Noncompete Areas"). BFI has
provided to Superior a true and complete list by respective Business
of all of such place(s) of business in the Noncompete Areas of
currently existing national customer accounts of Sellers and BFI has
also provided therewith to Superior a summary of all material terms
and conditions of the types and kinds of service(s) provided to such
customers, the pricing therefor, the duration of the service period,
and all other relevant information sufficient to allow a Buyer,
Company or Affiliate to adequately service such account. All of such
currently existing national customers so identified or in the future
identified as described below are herein called "National Customer
Accounts." An identical right of first refusal shall also be
provided to Buyers, Companies and their Affiliates with respect to
the opportunity for the renewal of service contracts for any such
currently existing National Customer Accounts which occur during the
relevant five (5)-year period with respect to the Noncompete Areas
described above; provided that BFI shall provide notice of such
opportunity for renewal of service to Superior sufficiently in
advance thereof, together with the same type of information described
above provided to Superior for currently existing National Customer
Accounts. In either event above (whether providing continuing
service to existing National Customer Accounts or renewal service to
existing National Customer Accounts), if none of Buyers, Companies or
Affiliates agree to service such accounts on such terms and
conditions, they must so notify BFI within fifteen (15) days of the
relevant Closing Date with respect to existing National Customer
Accounts or within fifteen (15) days of the date of receiving notice
and information about the renewal of such account. If none of
Buyers, Companies or their Affiliates determine to service such
accounts, then Sellers may engage the services of an independent
third-party contractor to provide such services on the same terms and
conditions as offered to Buyers and Companies, but in no case may
Sellers or their Affiliates directly service such locations during
the respective 5-year period after each relevant Closing Date for the
sale of that Business. During the respective five (5)-year periods
described above, if Sellers secure any new National Customer Accounts
with locations in the geographic areas described above in the
Noncompete Areas, it is agreed that none of Sellers or their
Affiliates may directly service such accounts in such Noncompete
Areas during such period, but that Sellers may solicit the services
of an independent third-party contractor to service such accounts in
such Noncompete Areas pursuant to BFI's standard competitive bid
process, provided that Buyers, Companies and any identified Affiliate
thereof are allowed to participate in such bid process on a fair and
equal basis to the same extent as all other bidders, but provided
that neither Buyers nor Companies shall have a right of first refusal
with respect to servicing such new National Customer Accounts.
ARTICLE 9.
RESTRICTIVE COVENANTS
9.1 Noncompete Covenant. As an essential and material inducement to
Buyers to enter into this Agreement and pay substantial consideration
for the Businesses being acquired hereunder, the Sellers, jointly and
severally, agree that for a period of five (5) years after the first
closing Date to occur under this Agreement, they will not, without
the prior written consent of Superior (which may be denied, withheld,
delayed or conditioned for any reason whatsoever in its discretion):
(a) Directly or indirectly, either as an employer, agent, partner,
shareholder, investor, financier, consultant or in any other
capacity, participate in, engage in, acquire, commence or have a
financial or other interest in any Venture in Competition (as
defined below); provided, however, that passive ownership, in
and of itself, of up to one percent (1.0%) interest in a
corporation whose shares of stock are traded on a recognized
stock exchange or over-the-counter market shall not be deemed a
violation of this Noncompete Covenant (as defined below);
(b) Directly or indirectly, as an employer, agent, partner,
shareholder, investor, financier, consultant or in any other
capacity canvas, contact, solicit or accept any Customers of any
Business (as defined below) for the purpose of providing waste
or recyclables collection, transportation, transfer or disposal
services (for purposes of this Agreement, "Customers of any
Business" shall include, on any given date, any customer within
the geographic boundaries of a "Venture in Competition"
described below as well as any of the Long-Haul Customers set
forth on Schedule 9.1 to this Agreement and only with respect to
those specific locations set forth on Schedule 9.1, as well as
any National Customer Accounts in the Noncompete Areas to the
extent set forth and in accordance with Section 8.28), provided,
that, Sellers may continue to provide collection services to the
Long-Haul Customers of the ▇▇▇▇▇▇ Business and Columbus Business
as contemplated by Section 8.26 and the related disposal
agreements to be executed thereunder and engage the services of
independent third party subcontractors for National Customer
Accounts in the Noncompete Areas to the extent allowed by
Section 8.28. Also with respect to the Columbus Business and
▇▇▇▇▇▇ Business, Sellers shall not be deemed to violate the
provisions of this noncompete solely because they advertise in
the Yellow Pages or similar mass market media which by its
nature may not be limited to a division of counties; or
(c) Actively solicit or induce, any employee, insurer or any other
person having a business or employment relationship with the
Businesses to terminate such relationship, or take any action
designed to interfere with the relationship of the Businesses
with any such person.
The foregoing covenants are herein collectively referred to herein as
the "Noncompete Covenant." The parties further agree that for
purposes of the Noncompete Covenant, a "Venture in Competition" is
defined to mean any business that, at any given date:
(A) with respect to the Green Bay Business, owns or operates
a landfill business, or in any manner collects, recycles
or disposes of solid, hazardous, medical, special or
other waste products (but specifically excluding the
transfer of any such wastes) within the area which is
bounded by Lake Michigan and the State of Michigan
border on the east, ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ to the south, ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇ to the west and State Highway 8 on the north.
(B) with respect to the Columbus Business, in any manner
collects, transports, transfers or recycles solid,
liquid, special or other waste products (but
specifically excluding the collection, transportation,
transfer or disposal of medical waste) within the
following entire counties in the State of Ohio: Madison,
Franklin, Pickaway, Fairfield, Perry, Muskingum,
Coshocton, ▇▇▇▇▇▇ and Washington, as well as within the
southern one-half of Delaware County (using everything
immediately north of the city limits of the City of
Delaware as the dividing line) and within the southern
one-half of Licking County (using everything immediately
north of the city limits of the City of Newark as the
dividing line).
(C) with respect to the ▇▇▇▇▇▇ Business, owns or operates a
landfill business, or in any manner collects, recycles
or disposes of solid, liquid, hazardous, medical,
special or other waste products (but specifically
excluding the transfer of any such wastes) within the
area including the following entire counties in the
Commonwealth of Pennsylvania: Potter, Venango, Forest,
Elk, Cameron, Clinton, Clarion, Jefferson, Clearfield,
Centre, Indiana, Cambria, Blair and Huntingdon, as well
as within the southern one-half of ▇▇▇▇▇▇ County (using
everything immediately south of the city limits of the
City of ▇▇▇▇▇▇ as the dividing line), within the western
part of Lycoming County (using a straight line extending
from the City of Ellenton in the north to and through
the City of Spring Garden in the south as the dividing
line) and within the northern one-half of Bedford County
(using everything immediately south of Interstate
Highway 70/76 as the dividing line).
9.2 Severability of Noncompete Covenant; Blue Penciling. The Sellers
acknowledge and agree that the Noncompete Covenant is reasonable and
valid in geographical and temporal scope and in all other respects
with respect to each Business. If any court determines that the
Noncompete Covenant, or any part thereof, is invalid or
unenforceable, it is expressly agreed by Sellers that: (a) the
remainder of the Noncompete Covenant shall not thereby be affected
and shall continue to be given full force and effect in accordance
with its terms, without regard to the invalid portions and (b) such
court shall have the power to reduce the duration or scope of such
provision, as the case may be, and, in its reduced form, such
provision shall then be given full force and effect in accordance
with its terms, without regard to the invalidated portion. The
parties agree that Buyers may sell, assign or otherwise transfer the
Noncompete Covenant, in whole or in part, without the consent or
approval of Sellers, to any person, corporation, firm or entity that
purchases all or part of the Business intended to be protected by
such Noncompete Covenant.
9.3 Confidential Information.
(a) None of Sellers or their Affiliates shall at any time subsequent
to any Closing, except as explicitly requested or agreed to by
Superior, disclose to any person any Records and Files
containing, any confidential information concerning the
Businesses, the Assets or the Assumed Liabilities which have
been transferred to Buyers hereunder, all such information being
deemed to be transferred to the Buyers hereunder, any
information (including particularly the purchase price of each
individual Business hereunder) relating to the terms and
conditions of this Agreement, except as may be required to be
disclosed to Government Entities or in response to any legally
enforceable summons or subpoena or an order to comply with any
Order or Law applicable to Sellers. For purposes hereof,
"confidential information" shall mean and include, without
limitation, all customer and vendor lists and related
information, all information used by or employed in any Business
concerning such Business' processes, products, costs, prices,
sales, marketing and distribution methods, properties and
assets, liabilities, finances, employees, all privileged
communications and work product, and any other information not
previously in the public domain. The foregoing provisions shall
not apply to any information which is (i) an "Excluded Asset" as
defined in Section 1.6, or which relates solely to one or more
Excluded Assets, (ii) in general use by competitors of Sellers,
or (iii) is or becomes part of the public domain without any
breach by Sellers of any obligation of confidentiality herein.
If at any time after a Closing any Seller should discover that
it is in possession of any records containing the confidential
information of Buyers, then the party making such discovery
shall immediately turn such records over to Buyers, which shall
upon request make available to the surrendering party any
information contained therein which is not confidential
information. Sellers, jointly and severally, agree that they
will not assert a waiver or loss of confidential or privileged
status of the information based upon such possession or
discovery.
(b) From and after any Closing, Sellers agree that they will not
disclose the customer names and addresses and material terms of
any Contracts to any person, firm, corporation, association or
other entity for any purpose or reason whatsoever, except to
authorized Representatives of Buyers or as required by
applicable Law. If Sellers become legally compelled to disclose
such confidential information, Sellers shall provide Superior
with prompt notice of such requirement so that Superior may seek
a protective order or other appropriate remedy.
(c) The covenants in this Section 9.3 along with the Noncompete
Covenant, are collectively referred to below as the "Restrictive
Covenants."
9.4 Equitable Relief for Violation. The Sellers expressly covenant and
agree that if any of them violates, or overtly threatens to violate,
any of the Restrictive Covenants, Buyers and Companies (and/or their
assigns) shall be entitled to an accounting and repayment (which
repayment may be effected through Buyers' offset of such benefits
against any payments otherwise owed by any Buyer to any Seller
hereunder or otherwise) of all profits, compensation, commissions,
remuneration or benefits which the Sellers, directly or indirectly,
have realized and/or may realize as the result of, arising out of, or
in connection with any such violation or threatened violation. The
Sellers acknowledge further that irreparable injury may result to
Buyers and Companies (and/or their assigns) and their business in the
event of a breach, or overt threat of breach, by any Seller of any of
the Restrictive Covenants. The Sellers also acknowledge and agree
that the damages or injuries which Buyers and/or the Companies will
sustain as a result of a breach by any Seller of any of the
Restrictive Covenants are difficult to ascertain and money damages
alone may not be an adequate remedy to Buyers and/or the Companies.
The Sellers therefore expressly agree that if a controversy arises
concerning the rights or obligations of a party under any of the
Restrictive Covenants, such rights or obligations shall be
enforceable in a court of equity by decree of specific performance
and Buyers an/or Companies shall also be entitled to any injunctive
relief necessary to prevent or restrain any violation of any of the
Restrictive Covenants. Such relief, however, shall be cumulative and
nonexclusive and shall be in addition to any other remedy to which
the parties may be entitled. In addition, Buyers and/or the
Companies shall also be entitled to actual attorney's fees and costs
incurred in any action in which it is successful in establishing a
violation of any of the Restrictive Covenants. The provisions of
Section 15.6 requiring arbitration of disputes hereunder shall not be
applicable to violations or alleged violations of any of the
Restrictive Covenants.
ARTICLE 10.
INDEMNIFICATION
10.1 Indemnity By BFI. BFI covenants and agrees that it will indemnify
and hold harmless the Buyers and, after the sale of the respective
Shares, the Companies, and each of their respective directors,
officers, employees and controlled and controlling persons
(hereinafter collectively, "Buyers' Affiliates"), from and against
all Claims (as defined below) asserted against, resulting to, imposed
upon, or incurred by any Buyer, Company or Buyers' Affiliates, or the
Business, Assets or Assumed Liabilities transferred to Buyers or
retained by Companies pursuant to this Agreement, directly or
indirectly, by reason of, arising out of or resulting from:
(a) the inaccuracy or breach of any representation or warranty of
Sellers contained in or made pursuant to this Agreement or in
any Ancillary Instrument (regardless of whether such breach is
deemed "material");
(b) the nonfulfillment or breach of any covenant of Sellers or any
Seller contained in this Agreement or in any Ancillary
Instrument (regardless of whether such nonfulfillment or breach
is deemed "material");
(c) any Claim brought by or on behalf of any broker or finder
retained, employed or used by Sellers, Companies or any of their
directors, officers, employees, shareholders or agents in
connection with the transactions provided for herein or the
negotiation hereof, whether or not disclosed herein; or
(d) any Liability, other than the specifically Assumed Liabilities,
arising out of the operation of the Businesses, or the use,
ownership, possession or occupancy of any Real Property, prior
to the Closing Date for the respective Business sold to Buyers
hereunder including, without limitation, (i) any Liability
arising under the Environmental Laws, Environmental Permits,
Permits, Orders, Laws or Litigation (including, without
limitation, any Liability for unpaid taxes), except to the
extent arising from the gross negligence, willful acts or
omissions of any of the Buyers or the Companies in the operation
of the respective Businesses following the respective Closing
Dates (provided, however that nothing herein shall be deemed to
limit, or constitute a waiver of, Buyers' rights against Sellers
for acts or omissions by or on behalf of Sellers prior to the
relevant Closing Date and which acts or omissions constitute the
basis for a Claim under the provisions of Section 10.1,
including without limitation, Buyers' continuation of such acts
and omissions after the relevant Closing Date); (ii) any
federal, state or local tax liability, including penalties or
interest of the Companies or the Sellers arising out of any
events occurring during any period ended on or before the
Closing Date for the sale of such Business (except to the extent
any such Liability is fully reflected and included in the
calculation of Net Working Capital for such Business); (iii) any
and all Liabilities and obligations of Sellers or Companies
under the December 2, 1988 letter agreement between BFI and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ arising and becoming fixed in amount prior to
the Closing Date for the sale of the ▇▇▇▇▇▇ Business,
Liabilities thereunder other than respecting the Green Tree
Landfill or any other existing Contract between any Seller,
Company or Affiliate and ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ or his Affiliates; (iv)
any Liability arising under Sections 8.14, 8.23 or 8.25; and (v)
any Liability arising from any events occurring on or prior to
the relevant Closing Date relating to (A) any "employee pension
benefit plan," as defined in Section 3(2) of ERISA, of the
Sellers or the Companies or any Affiliate thereof, (B) any
"prohibited transaction" as defined in ERISA relating to any
such employee pension benefit plan, or (C) any other violation
of ERISA by Sellers, Companies or any Affiliate thereof relating
to such employee pension benefit plan.
As used in this Article 10 or elsewhere in this Agreement, the term
"Claim" shall include (i) all Liabilities; (ii) all losses, damages
(including, without limitation, consequential damages, including any
differences in the purchase price which the Buyers would have paid
hereunder for any Business if there is a claim under Section 10.1
which alleges that the representations and warranties in Section 5.7
relating to the Financial Data are not true and correct), judgments,
awards, penalties and settlements; (iii) all demands, claims, suits,
actions, causes of action, proceedings and assessments, whether or
not ultimately determined to be valid; and (iv) all reasonable costs
and expenses (including, without limitation, interest (including
prejudgment interest in any litigated or arbitrated matter), court
costs and fees and reasonable expenses of attorneys and expert
witnesses) of investigating, defending or asserting any of the
foregoing or of enforcing this Agreement (including prosecuting an
indemnity claim hereunder).
10.2 By Superior. Superior hereby agrees to indemnify, defend and hold
harmless Sellers and their respective directors, officers, employees
and controlling persons, against all Claims asserted against,
resulting to, imposed upon or incurred by any such person, directly
or indirectly, by reason of or resulting from (a) the inaccuracy or
breach of any representation or warranty of Buyers contained in or
made pursuant to this Agreement or in any Ancillary Instrument
(regardless of whether such breach is deemed "material"); (b) the
nonfulfillment or breach of any covenant of Buyers contained in this
Agreement or in any Ancillary Instrument (regardless of whether such
breach is deemed "material"); or (c) all Claims of or against Sellers
or their Affiliates respecting the Assumed Liabilities; and (d) any
Liability, including without limitation, arising under the
Environmental Laws, Environmental Permits, Permits, Orders, Laws or
Litigation arising from the gross negligence, willful acts or
omissions of any of the Buyers or the Companies in the operation of
the respective Businesses following the respective Closing Dates
(provided, however that nothing herein shall be deemed to limit, or
constitute a waiver of, Buyers' rights against Sellers for acts or
omissions by or on behalf of Sellers prior to the relevant Closing
Date and which acts or omissions constitute the basis for a Claim
under the provisions of Section 10.1, including without limitation,
Buyers' continuation of such acts and omissions after the relevant
Closing Date).
10.3 Notice of Indemnity Claim. A party or parties seeking indemnity
hereunder (whether one or more, the "Indemnified Party") shall notify
the other party or parties (whether one or more, the "Indemnifying
Party") of the Claim in question within a reasonable time after an
officer of the Indemnified Party becomes actually aware of the
existence of such Claim, but in no event more than thirty (30) days
thereafter; provided, that the failure so to timely notify the
Indemnifying Party shall relieve the Indemnifying Party from the
obligation to indemnify against the Claim only to the extent the
Indemnifying Party establishes by competent evidence that it is
irrevocably prejudiced thereby.
10.4 Indemnification of Third-Party Claims. The following provisions
shall apply to any Claim subject to indemnification which is
(i) Litigation filed or instituted; (ii) any other Claim by any third
party; or (iii) any other form of proceeding or assessment instituted
by any Government Entity (each, a "Third Party Claim"):
(a) Notice and Defense. The Indemnified Party will give the
Indemnifying Party prompt written notice of any such Third Party
Claim, and the Indemnifying Party will undertake the defense
thereof by representatives chosen by it. Any such assumption of
defense shall constitute neither an admission nor denial by the
Indemnifying Party of its indemnification obligation hereunder
with respect to such Third Party Claim, and its undertaking to
pay directly all Claims incurred in connection therewith. So
long as the Indemnifying Party is defending any such Third Party
Claim actively and in good faith, the Indemnified Party shall
not settle such Third Party Claim. The Indemnified Party shall
make available to the Indemnifying Party or its representatives
all records and other materials required by them and in the
possession or under the control of the Indemnified Party, for
the use of the Indemnifying Party and its representatives in
defending any such Third Party Claim, and shall in other
respects give reasonable cooperation in such defense.
(b) Failure to Defend. If the Indemnifying Party, within a
reasonable time after notice of any such Third Party Claim,
fails to defend such Third Party Claim actively and in good
faith, the Indemnified Party will (upon further notice) have the
right to undertake the defense, compromise or settlement of such
Third Party Claim or consent to the entry of a judgment with
respect to such Third Party Claim, on behalf of and for the
account and risk of the Indemnifying Party, and the Indemnifying
Party shall thereafter have no right to challenge the
Indemnified Party's defense, compromise, settlement or consent
to judgment.
(c) Indemnified Party's Rights. Anything in this Article 10 to the
contrary notwithstanding, (i) if there is a reasonable
probability that a Third Party Claim may materially and
adversely affect the Indemnified Party, other than as a result
of money damages or other money payments, the Indemnified Party
shall have the right to participate equally with the
Indemnifying Party in the defense, compromise or settlement of
such Third Party Claim, and (ii) the Indemnifying Party shall
not, without the written consent of the Indemnified Party,
settle or compromise any Third Party Claim or consent to the
entry of any judgment which does not include as an unconditional
term thereof the giving by the claimant or the plaintiff to the
Indemnified Party of a full and complete release from all Claims
in respect of such Third Party Claim.
10.5 Payment. The Indemnifying Party shall promptly pay the Indemnified
Party any Claim amount due under this Article 10, which payment may
be accomplished in whole or in part, at the option of the Indemnified
Party, by the Indemnified Party setting off any Claim amount owed to
the Indemnifying Party by the Indemnified Party, including without
limitation, against any additional purchase price or other payments
payable to Sellers under Article 3 hereof. To the extent set-off is
made by an Indemnified Party in satisfaction or partial satisfaction
of any indemnity obligation under this Article 10 that is disputed by
the Indemnifying Party, upon a subsequent determination by final
judgment not subject to appeal that all or a portion of such
indemnity obligation was not owed to the Indemnified Party, the
Indemnified Party shall pay the Indemnifying Party the Claim amount
which was set off and not owed together with interest from the date
of set-off until the date of such payment at an annual rate equal to
the prime lending rate then being published by money center banks.
Upon judgment, determination, settlement or compromise of any Third
Party Claim, the Indemnifying Party shall pay promptly on behalf of
the Indemnified Party, and/or to the Indemnified Party in
reimbursement of any amount theretofore required to be paid by it,
the Claim amount so determined by judgment, determination, settlement
or compromise and all other Claims of the Indemnified Party with
respect thereto, unless in the case of a judgment an appeal is made
from the judgment. If the Indemnifying Party desires to appeal from
an adverse judgment, then the Indemnifying Party shall post and pay
the cost of the security or bond to stay execution of the judgment
pending appeal. Upon the payment in full by the Indemnifying Party
of such amounts, the Indemnifying Party shall succeed to the rights
of such Indemnified Party, to the extent not waived in settlement,
against the third party who made such Third Party Claim.
10.6 Limitations on Indemnities. Except for any willful or knowing
breach, misrepresentation or failure, as to which Claims may be
brought hereunder without limitation as to time or amount, the
obligations of indemnity provided above in Sections 10.1 and 10.2 are
subject to the following terms, conditions and limitations:
(a) The aggregate indemnity obligation of BFI pursuant to
Section 10.1 shall not exceed the aggregate purchase price for
all of the Assets and Shares as set forth in Article 3
(including the aggregate amount of all adjustments thereto,
contingent purchase price payments and Assumed Liabilities).
(b) Other than with respect to Claims under Sections 10.1(b),
10.1.(c) or (d), BFI shall have no obligation for Claims under
Section 10.1(a) until the aggregate Claim amount shall exceed:
(i) $185,000 with respect to any Claim or Claims relating
principally to the Green Bay Business; (ii) $138,000 with
respect to any Claim or Claims relating principally to the
Columbus Business; or (iii) $250,000 with respect to any Claim
or Claims relating principally to the ▇▇▇▇▇▇ Business (each, a
"Threshold Amount") and, in such event, where the Threshold
Amount is exceeded, Buyers shall be entitled to the full amount
of all such indemnity Claims with respect to such Business,
including those theretofore barred by the applicable Threshold
Amount. The Threshold Amounts shall be applied independently to
Claims respecting each Business sold hereunder, provided that,
if a Claim relating principally to one Business also includes
Claims relating to another Business, then such Claims may be
aggregated and applied to the Threshold Amount for the Business
as to which the Claim principally relates.
(c) The obligations of indemnity described in Sections 10.1(a) and
10.2(a) shall survive the Closing Date for the sale of the
particular Business to which the Claim relates for the following
time periods: (i) Claims alleging a breach of any of Sections
5.1 and 6.1 (existence and qualification), 5.2 and 6.2
(authority), 5.3 and 6.3 (no conflicts), 5.4 (capitalization;
ownership of shares), 5.16 (real property), 5.17 (environmental
matters) or 5.22 and 6.4 (brokers), shall survive the applicable
Closing Date for seven (7) years thereafter; (ii) Claims
alleging a breach of any of Sections 5.5 (no litigation), 5.13
(permits), 5.14 (compliance with laws and orders), 5.15
(employment and labor matters), 5.18 (taxes) or 5.25 (employee
benefit plans), shall survive for the applicable statute of
limitations; and (iii) Claims alleging a breach of any of
Sections 5.6 (assets), 5.7 (financial data), 5.8 (absence of
undisclosed liabilities), 5.9 (inventory), 5.10 (accounts
receivable), 5.11 (contracts), 5.12 (leases), 5.19 (performance
bonds; letters of credit), 5.20 (relationships), 5.21 (absence
of changes), 5.23 (intellectual property), 5.24 (insurance),
5.26 (disclosures) or otherwise under any Ancillary Instrument
shall survive the applicable Closing Date for two (2) years
thereafter. The obligations of indemnity for Claims under
Sections 10.1(c) and (d) and 10.2(c) and (d) shall survive the
applicable Closing Date indefinitely. The obligations of
indemnity for Claims under Sections 10.1(b) and 10.2(b) shall
survive until such agreements and covenants are fully performed
and discharged. Any Claim made by a party hereunder for breach
of a representation or warranty under Section 10.1(a) or 10.2(a)
prior to the termination of the survival period for such Claim
shall be preserved despite the subsequent termination of such
survival period provided such Claim has been transmitted in
accordance with Section 15.9 hereof. If any act, omission,
disclosure or failure to disclosure shall form the basis for a
Claim for breach of more than one representation or warranty,
and such Claims and/or representations and warranties have
different periods of survival hereunder, the termination of the
survival period of one Claim shall not affect a party's right to
make a Claim based on the breach of representation or warranty
still surviving.
(d) The obligations of indemnity for any Claim under Sections 10.1
and 10.2 shall be reduced by the dollar amount of any actually
received irrevocable recovery by the Indemnified Party for such
Claim under policies of insurance maintained by it or its
Affiliates with third parties less (i) all reasonable out-of-
pockets costs or expenses incurred by the Indemnified Party or
its Affiliates (excluding overhead costs) in recovering such
amount under any such insurance policy and (ii) any increased
premiums, deductible amounts and/or coinsurance amounts
thereafter to be incurred by the Indemnified Party or its
Affiliates as a result of the Claim or event; provided, however,
that this subsection shall apply only if this provision does not
constitute an improper waiver of the insurer's rights of
subrogation against the Indemnifying Party. Nothing contained
in this subsection (d) shall be deemed to create an obligation
of any party hereto to maintain any form or level of insurance
after any Closing, to name any other party as an additional
insured party or to obtain approval for any waiver of rights of
subrogation.
10.7 No Waiver. The Closing of any of the transactions contemplated by
this Agreement shall not constitute a waiver by any party of its
rights to indemnification hereunder, regardless of whether the party
seeking indemnification has knowledge of the breach, violation or
failure of condition constituting the basis of the Claim at or before
such Closing, and regardless of whether such breach, violation or
failure is deemed to be "material."
10.8 Sole Remedy. The sole remedy of Buyers and Sellers for Claims under
Section 10.1(a) or 10.2(a) shall be pursuant to the indemnity
provisions of this Article 10.
10.9 Survival of Representations and Warranties. The representations,
warranties, covenants and agreements of the parties contained in this
Agreement or in any Ancillary Instrument shall survive the
consummation of the transactions contemplated hereby and any
examination on behalf of the parties in accordance with the terms of
this Agreement for the respective periods of time contemplated by
Section 10.6(c); provided, that the right of any party herewith to
bring any action or make any Claim under Section 10.1(a) or 10.2(a)
for breach of any representation or warranty shall be limited as set
forth in this Article 10.
ARTICLE 11.
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYERS
With respect to each separate and independent transaction and
sale of each Business as hereby contemplated, the obligations of Buyers
hereunder are, at their option, subject to the satisfaction or waiver of
the following conditions on or prior to the respective Closing Date for
such transaction; provided, however, that the failure or delay in the
satisfaction of any condition which arises from and relates to the Closing
of the sale of any particular Business shall not operate to delay or
excuse the Buyers' obligations to consummate the transactions contemplated
by this Agreement with respect to the remaining Businesses and the Buyers
shall proceed to consummate the transactions with respect to such
remaining Businesses in accordance with the terms and conditions of this
Agreement.
11.1 Accuracy of Representations; Performance of Covenants. The
representations and warranties of Sellers contained in Article 5 of
this Agreement with respect to the Assets, Business and/or Shares
then subject to sale shall be true and correct in all material
respects on and as of the Closing Date with the same effect as though
such representations and warranties had been made on and as of such
date. Each and all of the covenants, obligations and agreements of
Sellers and the Companies to be performed on or before the Closing
Date pursuant to the terms hereof shall have been performed in all
material respects.
11.2 Governmental Consents; No Litigation; Permits. Those certain
consents of any Government Entities relating to the consummation of
the transactions contemplated in this Agreement as set forth on
Schedule 11.2 shall have been obtained, including the expiration or
earlier termination of the waiting period under the HSR Act; and no
Litigation before any court or any other Government Entity shall have
been instituted or threatened to restrain or prohibit, or which could
otherwise adversely affect, Buyers' acquisition of the Assets, Shares
and/or Business then subject to sale. The relevant Buyer or Company,
as the case may be, shall have received all material Permits,
including all Environmental Permits, necessary to operate after the
Closing the Business then being sold as set forth on Schedule 11.2.
11.3 Material Contract and Material Lease Consents. All necessary third
party and Government Entity consents set forth on Schedule 11.3 shall
have been obtained for the transfer to the relevant Buyer of the
Material Contracts and the Material Leases.
ARTICLE 12.
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLERS
With respect to each separate and independent transaction and
sale of each Business as hereby contemplated, the obligations of Sellers
hereunder are, at their option, subject to the satisfaction of the
following conditions on or prior to the respective Closing Date for such
transaction; provided, however, that the failure or delay in the
satisfaction of any condition which arises from and relates to the Closing
of the sale of any particular Business shall not operate to delay or
excuse the Sellers' obligations to consummate the transactions
contemplated by this Agreement with respect to the remaining Businesses,
and the Sellers shall proceed to consummate the transactions with respect
to such remaining Businesses, in accordance with the terms and conditions
of this Agreement.
12.1 Accuracy of Representations; Performance of Covenants. The
representations and warranties of Buyers contained in Article 6 of
this Agreement shall be true and correct in all material respects on
and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of such date.
Each and all of the covenants, obligations and agreements of Buyers
to be performed on or before the Closing Date pursuant to the terms
hereof shall have been performed in all material respects.
12.2 Governmental Consents. BFI shall have received all governmental
consents required from any Government Entity relating to consummation
of the transactions contemplated in this Agreement, including the
expiration or earlier termination of the waiting period under the HSR
Act, if applicable.
ARTICLE 13.
RIGHTS OF FIRST REFUSAL
13.1 Superior's Right of First Refusal. For a period equal to seven years
and six months after the execution date of the Amended Disposal
Agreements, BFI hereby grants to Superior two independent and
separate rights-of-first-refusal to meet any offer to purchase all or
a substantial part of BFI's current or future solid waste collection
operations in each and either of Milwaukee, Wisconsin and/or
Mansfield, Ohio. Upon receipt of any oral or written offer to
purchase all or a substantial part of either (or both) of such
operations by a third party, BFI shall give written notice to
Superior of such fact and all of the terms and conditions of such
third party offer. Superior shall have thirty (30) days after its
receipt of such notice (the "Election Term") to notify BFI in writing
of its election to purchase such operations on such terms. The
purchase price for such operations shall be identical to the purchase
price contained in the third party offer, and shall be upon the same
terms and conditions thereof, except as expressly set forth herein.
In the event the third party offer provides for consideration other
than in cash, the purchase price pursuant to the right of first
refusal granted herein shall include the cash equivalent of any non-
cash consideration in such amount as agreed upon by the parties in
lieu of the non-cash consideration. If the parties cannot agree upon
the cash equivalent value, the time periods for the exercise of the
right of first refusal granted shall be suspended, and each party
shall appoint a qualified appraiser, and the two appraisers so
appointed shall appoint a third qualified appraiser, who alone shall
determine the fair market value of the non-cash consideration. The
cost of the appraiser shall be shared equally by the parties. The
value so determined shall be binding upon the parties and be included
in the purchase price applicable to this right of first refusal. The
closing of the purchase of such operations by Superior shall occur on
or before ninety (90) days after Superior notifies BFI of its
election to so purchase. In the event Superior does not notify BFI
of its election to purchase such operations within the Election Term,
then BFI may sell such operations on such indicated terms and
conditions to such third party so long as such sale is consummated
within ninety (90) days after such Election Term. If such sale to
the third party is not consummated within such period, then Superior
shall again have the right-of-first-refusal to purchase such
operation prior to any offer to or sale to any third party in
accordance with the provisions of this Article 13. During the
Election Term, Superior and its Affiliates and representatives may at
all reasonable times conduct such reasonable due diligence
investigations and inquiries with regard to such operations. BFI
shall, during the Election Term, provide fully responsive information
to any reasonable due diligence request by Superior and its
Affiliates and representatives.
13.2 BFI's Right of First Refusal. For a period equal to seven years and
six months after the execution date of the Amended Disposal
Agreements, Superior hereby grants to BFI three independent and
separate rights-of-first-refusal to meet any specific offer to
purchase all or a substantial part of the Green Bay Business, the
Columbus Business and/or the ▇▇▇▇▇▇ Business (specifically exclusive
of any acquisition thereof which may be or is proposed to be effected
through a change in control or an acquisition of Superior); and
provided, further, that this right of first refusal shall not apply
to any offer to purchase relating to, or sale by Buyers of, the Green
Bay Business' medical waste collection Contracts and related business
being purchased herein or any offer to purchase relating to, or sale
by Buyers of, the Peshitgo, Wisconsin collection Contracts and
related business being purchased herein as part of the Green Bay
Business. Except as set forth in the sentence above, upon receipt of
any specific oral or written offer to purchase all or a substantial
part of any of such Businesses by a third party, Superior shall give
written notice to BFI of such fact and all of the terms and
conditions of such third party offer. BFI shall have thirty (30)
days after its receipt of such notice (the "Election Term") to notify
Superior in writing of its election to purchase such Business on such
terms. The purchase price for such Business shall be identical to
the purchase price contained in the third party offer, and shall be
upon the same terms and conditions thereof, except as expressly set
forth herein. In the event the third party offer provides for
consideration other than in cash, the purchase price pursuant to the
right of first refusal granted herein shall include the cash
equivalent of any non-cash consideration in such amount as agreed
upon by the parties in lieu of the non-cash consideration. If the
parties cannot agree upon the cash equivalent value, the time periods
for the exercise of the right of first refusal granted shall be
suspended, and each party shall appoint a qualified appraiser, and
the two appraisers so appointed shall appoint a third qualified
appraiser, who alone shall determine the fair market value of the
non-cash consideration. The cost of the appraiser shall be shared
equally by the parties. The value so determined shall be binding
upon the parties and be included in the purchase price applicable to
this right of first refusal. The closing of the purchase of such
Business by BFI shall occur on or before ninety (90) days after BFI
notifies Superior of its election to so purchase. In the event BFI
does not notify Superior of its election to purchase such Business
within the Election Term, then Superior may sell such Business on
such indicated terms and conditions to such third party so long as
such sale is consummated within ninety (90) days after such Election
Term. If such sale to the third party is not consummated within such
period, then BFI shall again have the right-of-first-refusal to
purchase such Business prior to any sale to any third party in
accordance with the provisions of this Article 13. During the
Election Term, BFI and its Affiliates and representatives may at all
reasonable times conduct such reasonable due diligence investigations
and inquiries with regard to such Business. Superior shall, during
the Election Term, provide fully responsive information to any
reasonable due diligence request by BFI and its Affiliates and
representatives.
ARTICLE 14.
TERMINATION, AMENDMENT AND WAIVER
14.1 Partial or Complete Termination. This Agreement may be terminated
with respect to any or all of the independent transactions
contemplated herein that have not yet been consummated at any time
prior to the Closing Date for such transaction:
(a) by mutual written consent of Superior and BFI.
(b) by either Superior or BFI:
(i) if any court of competent jurisdiction or any Government
Entity shall have issued an Order or ruling or taken any
other action permanently enjoining, restraining or
otherwise prohibiting the consummation of any such
individual transaction or of all of the transactions
contemplated hereby and such Order, ruling or other
action shall have become final and nonappealable;
provided, however, that if any reason which forms the
basis for termination of this Agreement under this
subparagraph does not affect all of the Closings for the
sales of all of the Businesses yet to be sold hereunder,
then this subparagraph shall only form the basis for
terminating this Agreement with respect to the
individual sales of the Businesses so affected; or
(ii) with respect to the sale of the (A) Green Bay Business,
if the Closing thereof has not occurred by May 31, 1997;
(B) the Columbus Business, if the Closing thereof has
not occurred by May 31, 1997; or (C) the ▇▇▇▇▇▇
Business, if the Closing thereof has not occurred by May
31, 1997, unless in any case above the failure to
consummate the Closing of such sale by such date is the
result of a material breach of this Agreement by the
party seeking to terminate this Agreement; provided,
however, that the failure to Close the sale of any
Business by its respective deadline date above shall not
otherwise form the basis for Superior or BFI to
terminate this Agreement with respect to the sale of any
other Business not yet consummated.
(c) by Superior if Sellers breach in any material respect any of
their representations or warranties herein or Sellers fail to
perform in any material respect any of their covenants,
agreements or obligations under this Agreement, and any such
failure to perform a covenant, agreement or obligation is not
waived by Superior or cured by Sellers within ten (10) days
after written notice from Superior (provided that BFI shall
promptly notify Superior of any such failure); provided,
however, that if any reason which forms the basis for
termination of this Agreement under this subparagraph does not
affect all of the Closings for the sales of all of the
Businesses yet to be sold hereunder, then this subparagraph
shall only form the basis for terminating this Agreement with
respect to the individual sales of the Businesses so affected.
(d) by BFI if Buyers breach in any material respect any of their
representations or warranties herein or fail to perform in any
material respect any of their covenants, agreements or
obligations under this Agreement, and any such failure to
perform a covenant, agreement or obligation is not waived by BFI
or cured by Buyers within ten (10) days after written notice
from BFI (provided that Superior shall promptly notify BFI of
any such breach or failure); provided, however, that if any
reason which forms the basis for termination of this Agreement
under this subparagraph does not affect all of the Closings for
the sales of all of the Businesses yet to be sold hereunder,
then this subparagraph shall only form the basis for terminating
this Agreement with respect to the individual sales of the
Businesses so affected.
14.2 Effect of Termination. Termination of this Agreement pursuant to
Section 14.1(a) or (b) shall be without further Liability of any
party to the other with respect to the sale of the Business or
Businesses not to be consummated as a result of such termination, but
shall not otherwise affect the parties' obligations under this
Agreement with respect to the Businesses not so affected.
Termination of all or any part of this Agreement pursuant to
Section 14.1(c) or (d) shall not in any way terminate, limit or
restrict the rights and remedies of any party hereto against any
other party which has violated, breached or failed to satisfy any of
the representations, warranties, covenants, agreements, conditions or
other provisions of this Agreement prior to any such termination. In
addition to the right of any party under common law to redress for
any such breach or violation, each party whose breach or violation
has occurred prior to any such termination shall jointly and
severally indemnify each other party for whose benefit such
representation, warranty, covenant, agreement or other provision was
made ("indemnified party") from and against all Claims asserted
against, resulting to, imposed upon, or incurred by the indemnified
party, directly or indirectly, by reason of, arising out of or
resulting from such breach or violation. Subject to the foregoing,
the parties' obligations under Section 8.7 of this Agreement shall
survive termination.
ARTICLE 15.
GENERAL
15.1 BFI Name and Logos. As soon as practicable (but in any event within
six (6) months for Vehicles and twelve (12) months for containers and
other Equipment and Assets) after the Closing Date for each sale of
any Business hereunder, Buyers, at Buyers' expense, shall remove all
BFI names and logos from all Equipment and Vehicles of such Business.
Nothing in this Agreement shall constitute a license or authorization
for Buyers to use in any manner any "BFI" or "▇▇▇▇▇▇▇▇-▇▇▇▇▇▇" name,
logo or ▇▇▇▇ owned by or licensed to BFI and its affiliates.
15.2 Access to Records and Properties. For a period of up to seven (7)
years subsequent to the Closing of each Business sold hereunder,
Buyers will afford to BFI, at its expense, reasonable access and an
opportunity to photocopy during normal business hours and upon
reasonable advance notice to Superior (provided that such access may
be structured to avoid or minimize business disruption or competitive
disadvantage to Buyers or Companies) to the financial and tax records
of such Business as well as the Assets related to such Business
conducted for all periods up to the respective Closing Date for the
sale of such Business, to (i) complete any financial statements or
audits thereof or tax returns; (ii) defend any tax disputes or claims
or respond to any requests in connection with any tax audits; (iii)
comply with any legal request or order; or (iv) defend any
Litigation.
15.3 Termination of Insurance Policies. BFI will on the respective
Closing Date for any sale of any Business, or promptly thereafter,
cancel any insurance policies maintained by the Companies prior to
such Closing and shall be entitled to any refunds or other amounts
paid in connection with any such cancellations.
15.4 Financial Assurance. On or before ninety (90) days following the
respective Closing Date for the sale of any Business hereunder, Buyer
shall submit such instruments of financial assurance required by the
respective Government Entities to effect the full and effective
release to BFI and its Affiliates of those instruments of financial
assurance set forth or described by respective Business in
Schedule 15.4 hereto.
15.5 Assignment. Except as otherwise provided herein, this Agreement and
the rights of the parties hereunder may not be assigned (except, in
whole or in part, (i) by operation of law; (ii) to an Affiliate of
the assigning party, provided the assignor remains responsible for
the performance thereby; or (iii) to a party who subsequently
acquires all or a substantial portion of any of the Businesses being
acquired herein) and shall be binding upon and shall inure to the
benefit of the parties hereto and the successors the parties hereto.
15.6 Arbitration. Any controversy or claim arising out of or related to
this Agreement, or any transactions contemplated herein, that cannot
be amicably resolved between Superior and BFI, including, without
limitation, whether such controversy or claim is subject to
arbitration, shall be resolved by binding arbitration held in
Chicago, Illinois, in accordance with the Commercial Arbitration
Rules of the American Arbitration Association, subject to this
Section 15.6. Arbitration proceedings shall be conducted by a panel
of three (3) persons selected as follows: (i) the party initiating
arbitration shall select one arbitrator; (ii) the other party shall
select a second arbitrator; and (iii) the two arbitrators shall
select a third arbitrator as soon as possible. Each party shall
provide prompt written notice of the arbitrator selected by it in
accordance with the terms of this Agreement. No arbitrator shall
have or previously have had any significant relationship with any of
the parties hereto. The decision of any two (2) of the arbitrators
on any submitted matter shall be final. Notwithstanding the
foregoing, if the controversy or claim in question is not resolved by
the arbitrators as provided herein within one hundred fifty (150)
days after selection of the first arbitrator, either party may pursue
any remedy with respect hereto providing by law.
15.7 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.
15.8 Fees and Expenses. Whether or not the transactions herein
contemplated shall be consummated, (i) BFI will pay the fees,
expenses and disbursements of Sellers and Companies and their agents,
representatives, accountants and counsel incurred in connection with
the subject matter of this Agreement and any amendments thereto, as
well as the following: (a) any sales, use, excise, transfer or other
similar tax imposed by Law on Sellers with respect to the
transactions provided for in this Agreement, and any interest or
penalties related thereto and (b) all premiums for the issuance of
the title insurance policies issued pursuant to Section 8.11 hereof,
and the cost of the Surveys performed pursuant to Section 8.12, and
(ii) Buyer will pay the fees, expenses and disbursements of Buyers
and their agents, representatives, accountants and counsel incurred
in connection with the subject matter of this Agreement and any
amendments hereto, including the entire HSR Act filing fee and the
taxes described in clause (i)(a) above which are not imposed by Law
on Sellers and any interest or penalties related thereto.
15.9 Notices. Any notice or communication required or permitted hereunder
shall be sufficiently given if sent by first class mail, postage
prepaid:
(a) If to BFI, addressed to it at
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
(b) If to Buyers, addressed to Superior at
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
With a copy to its counsel at
▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
15.10 Captions. The captions in this Agreement are for convenience
only and shall not be considered a part hereof or affect the
construction or interpretation of any provisions of this
Agreement.
15.11 Disclosure Schedule. The Schedules to this Agreement have been
compiled in a bound volume (the "Disclosure Schedule"), executed
by BFI and dated and delivered to Superior at least three
business days prior to the execution date of this Agreement.
Information set forth in the Disclosure Schedule specifically
refers to the specific Article and Section of this Agreement to
which such information is responsive and such information shall
not be deemed to have been disclosed with respect to any other
Article or Section of this Agreement or for any other purpose.
The Disclosure Schedule includes a table of contents and/or
index to all of the information and documents contained therein.
The Disclosure Schedule shall not vary, change or alter the
language of the representations and warranties contained in this
Agreement. Schedules which contain information relating to more
than one Business shall clearly identify, segregate and
distinguish such information by each respective Business.
15.12 Entire Agreement. This Agreement (including the schedules and
exhibits hereto) and the Ancillary Instruments delivered
pursuant hereto constitute the entire agreement and
understanding between Sellers and Buyers and supersede any prior
agreement and understanding relating to the subject matter of
this Agreement (including the February 25, 1997 letter of
understanding between Superior and BFI and the confidentiality
agreement between Superior and BFI dated November 22, 1996).
This Agreement may be modified or amended only by a written
instrument executed by BFI and Superior acting through their
duly elected officers.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year first above written.
SUPERIOR SERVICES, INC. ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ INDUSTRIES, INC.
By:/S/ G. W. "▇▇▇▇" ▇▇▇▇▇▇▇▇ By:/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇. ▇. "▇▇▇▇" ▇▇▇▇▇▇▇▇, President ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice
President
SUPERIOR OF WISCONSIN, INC. ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ INDUSTRIES OF
WISCONSIN, INC.
By:/S/ G. W. "▇▇▇▇" ▇▇▇▇▇▇▇▇ By:/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇. ▇. "▇▇▇▇" ▇▇▇▇▇▇▇▇, President ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice
President
SUPERIOR OF OHIO, INC. M&N RECYCLING, INC.
By:/S/ G. W. "▇▇▇▇" ▇▇▇▇▇▇▇▇ By:/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇. ▇. "▇▇▇▇" ▇▇▇▇▇▇▇▇, President ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice
President
SUPERIOR WASTE SERVICES BFI WASTE SYSTEMS OF OHIO, INC.
OF PENNSYLVANIA, INC.
By:/S/ G. W. "▇▇▇▇" ▇▇▇▇▇▇▇▇ By:/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇. ▇. "▇▇▇▇" ▇▇▇▇▇▇▇▇, President ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice
President
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ INDUSTRIES OF
PENNSYLVANIA, INC.
By:/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
