Exhibit 10.1
ASSET PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS (TOLLESON)
This ASSET PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (TOLLESON) (this “Agreement”) is made as of July 20, 2023 (the “Effective Date”), by and between Environmental Alternative Fuels, LLC (“Seller”), a Delaware limited liability company and wholly-owned subsidiary of EVO Transportation & Energy Services, Inc., a Delaware corporation, and Clean Energy, a California corporation (“Buyer”).
RECITALS
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NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained and subject to the conditions hereinafter set forth, it is agreed by and between the parties as follows.
AGREEMENT
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Buyer and Seller shall each have the option to extend the Closing Date one (1) time for a period of ten (10) days upon providing written notice to the other party at least five (5) business days prior to the then-scheduled Closing Date.
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In the event Buyer (for any reason or no reason) disapproves the Assets, Buyer may terminate its obligation to purchase the Assets by delivering written notice of its disapproval of the Assets to Seller at any time prior to the expiration of the Due Diligence Period (“Termination Notice”), in which case (a) the Deposit shall be immediately refunded to Buyer by Escrow Holder, less the Independent Consideration and any amounts due to Escrow Holder from Buyer pursuant to this Agreement (without the need for any further instructions from Seller or Buyer), and (b) Buyer’s obligation to purchase, and Seller’s obligation to sell, the Assets shall terminate, and neither party shall have any further obligation to the other, except as otherwise provided in this Agreement. In the event that Buyer elects in its sole and absolute discretion to approve all matters relating to the Assets, then Buyer shall deliver written notice of its approval of the Assets to Seller and Escrow Holder prior to the expiration of the Due Diligence Period (“Approval Notice”). If Buyer fails to deliver a Termination Notice or an Approval Notice to Seller prior to the expiration of the Due Diligence Period, Buyer shall be deemed to have delivered a Termination Notice. The provisions of this Section 3(A) shall survive the termination of this Agreement and/or the Closing.
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If Buyer’s Title Notice disapproves any of the Exceptions, then Seller shall have the right, but not the obligation, to indicate which matters, if any, identified in Buyer’s Title Notice will be satisfied or cured by the Closing Date by delivering written notice to Buyer (“Seller’s Title Notice”) within five (5) business days after Seller’s receipt of Buyer’s Title Notice. Seller’s failure to deliver Seller’s Title Notice shall be deemed to constitute Seller’s election not to satisfy or cure any of the matters set forth in Buyer’s Title Notice. Following Seller’s actual or deemed election not to cure or remove any title Exception, Buyer shall have five (5) business days after Seller’s actual or deemed election not to cure any title Exception to notify Seller of its waiver of any one or more of the title Exceptions, or Buyer may terminate this Agreement and receive the entire Deposit, plus any interest accrued thereon. If Buyer does not terminate this Agreement by the expiration of the later of such dates, then Buyer shall be deemed to have approved all such Exceptions, and Buyer shall have no right to terminate this Agreement except in the event of a Seller default.
Seller shall convey by Warranty Deed, in form reasonably satisfactory to Buyer, fee title to the Real Property, subject only to the Permitted Liens and the Exceptions approved or deemed approved by Buyer (the “Warranty Deed”). Buyer’s title to the Property shall be insured by an ALTA extended coverage owner’s policy of title insurance (the “Title Policy”) issued by the Title Company in the amount of the Purchase Price with premium for extended ALTA coverage paid by Buyer. The costs for an ALTA extended coverage and endorsements shall be paid by Buyer, and the cost of any curative endorsements pursuant to Buyer’s Title Notice shall be paid by Seller.
In the event of any supplement to or update of the Title Report, or if a survey discloses additional title exceptions (other than any resulting from Buyer’s activities on the Property), Buyer shall have an additional ten (10) day period following Buyer’s receipt of such supplement or update to approve or disapprove such item in its sole and absolute discretion. Any disapproval will be subject to the same notice/response provisions and right to a refund of the Deposit as set forth in this Section 5.
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9) ASSUMPTION AND EXCLUSION OF LIABILITIES: Except as expressly provided in this Agreement, Buyer shall not assume or become liable for any obligations, commitments, or liabilities of Seller, whether known or unknown, absolute, contingent, or otherwise, and whether or not related to the Assets, including, without limitation, any employment, business, sales, or use tax relating to Seller’s operation of the Business and use and ownership of the Assets prior to the Closing. Seller shall have the right to enter and inspect the Property after Closing upon reasonable notice to Buyer. The obligations set forth in this Section 9 shall survive Closing.
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Seller shall indemnify and defend Buyer against and hold Buyer, its successors and assigns, tenants, partners, shareholders, officers and/or directors (collectively, “Buyer Indemnitees”) harmless from any and all loss, damage, liability or expense, including court costs and reasonable attorneys’ fees, which Buyer Indemnitees may reasonably incur or sustain either prior to or following the Closing Date by reason of or in connection with (i) any breach of Seller’s representations and/or warranties contained herein; (ii) any and all liabilities, claims, demands or damages made or incurred by third parties, whether direct, contingent or consequential, in any way related to or arising from the ownership, use, operation or occupancy of the Property prior to the Closing Date; or (iii) in any way relating to the generation, treatment, storage or disposal of hazardous materials or substances existing on or about the Property prior to the Close of Escrow, except if such generation, treatment, storage or disposal was caused by Buyer when operating its business on and occupying the Property prior to the Closing Date. Seller is not obligated to indemnify any Buyer Indemnitee for any claim or loss arising out of the gross negligence, fraud or willful misconduct of Buyer or its affiliates. The aggregate total amount in respect of which Seller will be liable to indemnify Buyer pursuant to clause (i) above will not exceed the Purchase Price. The indemnity provided herein shall survive the Close of Escrow.
As used herein, the term “hazardous materials” shall mean (a) any toxic substance or hazardous waste, hazardous substance or related hazardous material; (b) asbestos in any form which is or could become friable, urea formaldehyde foam insulation, transformers or other equipment which contain dielectric fluid containing levels of polychlorinated biphenyls in excess of presently existing federal, state or local safety guidelines, whichever are more stringent; and (c) any substance, material or chemical which is defined as or included in the definition of “hazardous substances”, “toxic substances”, “hazardous materials”, “hazardous wastes” or words of similar import under any federal, state or local statute, law, code, or ordinance or under the regulations adopted or guidelines promulgated pursuant thereto, including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §9061 et seq.; the Hazardous Materials Transportation Act, as amended, 49 U.S.C. §1801, et seq.; the Resource Conservation and Recovery Act, as amended, 42 U.S.C. §6901, et seq.; and the Federal Water Pollution Control Act, as amended, 33 U.S.C. §1251, et seq.
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(a) shall perform all customary maintenance and repairs at the Property;
(b) shall not, without the prior written consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, enter into any contract with respect to the Assets which is not terminable by Seller or Buyer without penalty upon written notice of thirty (30) days or less;
(c) shall not create any new encumbrances affecting title to the Assets which are not reasonably approved in writing in advance by Buyer and which would not be released at or prior to the Closing; and
(d) shall maintain in existence all licenses, permits and approvals that are now in existence with respect to, and are required for, the ownership, operation or improvement of the Property, and are of a continuing nature, and shall operate the Business in compliance with all licenses, permits and applicable laws.
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(vii) Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended
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vi. Suitability. Neither Buyer nor any of its shareholders, members, and/or partners have ever been convicted of a felony.
vii. Future Profits/Losses. Buyer acknowledges and understands that any future profits or losses from the Business or the Assets acquired pursuant to this Agreement will be the result of Buyer’s labor and efforts and that Seller has made no representations or warranties, either express or implied, concerning same.
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Seller’s Initials MW
Buyer’s Initials RV
In the event Seller defaults in its obligations under this Agreement prior to the Close of Escrow, then Buyer may, at its option and as its sole and exclusive remedy, either (i) terminate this Agreement by giving written notice of termination to Seller whereupon Escrow Holder will return to Buyer the Deposit, Seller will reimburse Buyer for Buyer’s out-of-pocket costs and expenses incurred in connection with this Agreement, the due diligence investigations of the Property, and its proposed financing of the acquisition (including the costs of collection and enforcement thereof), and both Buyer and Seller will be relieved of any further obligations or liabilities hereunder, or (ii) seek specific performance of this Agreement; provided, however, that to the extent specific performance is not available to Buyer due to Seller’s actions, Buyer shall have all rights and remedies available at law or in equity. Seller hereby covenants and agrees it shall not seek to expunge a lis pendens recorded against the Real Property filed by Buyer in connection with an action by Buyer to specifically enforce this Agreement. Notwithstanding anything herein to the contrary, to the extent specific performance is not legally an available remedy to Buyer due to Seller’s actions, Buyer shall have all rights and remedies available at law or in equity to recover actual money damages and consequential “lost profits” damages. Except as specifically set forth and conditioned in this Section 18, Buyer does hereby specifically waive any right to pursue any other remedy at law or equity for any default of Seller, including, without limitation, any right to seek, claim or obtain any other damages or punitive, exemplary, special, indirect, or speculative damages. This Section shall survive the Closing or any termination of this Agreement.
Notwithstanding anything contained in this Agreement to the contrary, if a party is in breach under this Agreement (the “Defaulting Party”) the other party (the “Non-defaulting Party”) shall deliver written notice to the Defaulting Party of such breach, and (a) the Defaulting Party shall have until 5:00 p.m. local time in the state in which the Land is located on the date that is five (5) business days after the Defaulting Party’s receipt of such written notice to cure the breach, and (b) the Defaulting Party shall not be in default under this Agreement if the Defaulting Party cures such breach on or prior to 5:00 p.m. local time in the state in which the Land is located on the date that is five (5) business days after the Defaulting Party’s receipt of such written notice; provided, however, the foregoing shall not apply with respect to a default by Seller in its obligations to close the transactions contemplated by this Agreement on the Closing Date.
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[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date written above.
SELLER:
Environmental Alternative Fuels, LLC, a Delaware limited liability company
By: /s/ Melinda Wang Name: Melinda Wang Title: Secretary
ADDRESS: Environmental Alternative Fuels, LLC c/o EVO Transportation & Energy Services, Inc. 2075 W Pinnacle Peak Rd. Suite 130 Phoenix, AZ 85027
EMAIL: melinda.wang@evotransinc.com
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BUYER:
Clean Energy, a California corporation
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By: /s/ Robert M. Vreeland Name: Robert M. Vreeland Title: Chief Financial Officer
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California Clean Energy, Inc. with a copy to: California Clean Energy, Inc.
with a copy to:
Rutan & Tucker LLP 18575 Jamboree Road, 9th Floor Irvine, CA 92612 Attn: Bryan Wilbert, Esq. Email: bwilbert@rutan.com
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EXHIBIT A
LEGAL DESCRIPTION
The Land referred to herein below in situated in the County of Maricopa, State of Arizona, and is described as follows:
PARCEL NO. 1:
LOT 4, TOLLESON COMMERCE CENTER, ACCORDING TO THE PLAT OF RECORD IN THE OFFICE OF THE COUNTY RECORDER OF MARICOPA COUNTY, ARIZONA, RECORDED IN BOOK 982 OF MAPS, PAGE 18.
PARCEL NO. 2:
EASEMENTS FOR INGRESS AND EGRESS AS SET FORTH IN DECLARATION OF RECIPROCAL EASEMENTS RECORDED IN DOCUMENT NO. 2007-1215700 AND FIRST AMENDMENT TO DECLARATION OF RECIPROCAL EASEMENTS RECORDED IN DOCUMENT NO. 2011-0277613, RECORDS OF THE COUNTY RECORDER OF MARICOPA COUNTY, ARIZONA.
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