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EXHIBIT 10.18
ASSET PURCHASE AGREEMENT
Gibraltar Mausoleum Construction Company, Inc.
THIS ASSET PURCHASE AGREEMENT is dated this 16th day of September, 1998, and is
entered into between GIBRALTAR MAUSOLEUM CONSTRUCTION COMPANY, INC., a Delaware
corporation, (the "Seller") and MATTHEWS INTERNATIONAL CORPORATION, a
Pennsylvania corporation, (the "Purchaser").
W I T N E S S E T H:
Whereas, on the date of this Agreement, the Seller is the owner and operator of
a mausoleum construction business operated under the name of "Gibraltar
Mausoleum Construction Co.", which business shall be referred to herein as the
"Business"; and
Whereas, certain of the assets of the Business are to be sold by the Seller to
the Purchaser pursuant to this Agreement and are identified in Section 1.1 below
and the schedules attached hereto; and
Whereas, the parties to this Agreement also contemplate the execution and
delivery of certain collateral agreements and documents described in this
Agreement;
Now, Therefore, the Seller and the Purchaser agree as follows:
Article One
Sale and Purchase of Assets
The sale and purchase of those assets hereinafter described shall be
accomplished as follows:
Section 1.1. Assets To Be Sold to Purchaser. For and in consideration of the
payment of the consideration set forth in Section 1.2 below and the mutual
covenants and agreements herein contained, and subject to the other terms and
conditions hereof, the Seller agrees to SELL, CONVEY, AND DELIVER to the
Purchaser, and the Purchaser agrees to PURCHASE AND ACCEPT from the Seller, the
following described assets:
(a.) That inventory, fixtures, equipment, machinery, and other personal
tangible property used in the operation of the Business and listed on Exhibit
"A" attached hereto;
(b.) All of the contracts for work in process of the Business as set forth on
the listing attached hereto as Exhibits "B" and "C", plus or minus any changes
in that work in process which result from the ordinary course of the operation
of the Business subsequent to the date of the listing and until the Effective
Date, as hereinafter defined; and
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(c.) The goodwill of the Seller related to the Business, together with all
lists of present, future, or former customers; all mailing lists; all business
books, files, and records beneficial and useful to Purchaser in continuing the
Business; all transferrable licenses and permits of the Business, if any; all
customer and sales brochures, pamphlets, advertising literature, catalogs, and
related buying or sales material; and all other intangibles, rights, and
privileges desirable or useful to Purchaser in continuing the Business in its
present form and maintaining and retaining the existing customers and goodwill
of the Business, including, without limitation, the right to use the trade name
Gibraltar Mausoleum Construction Co. and any related trademark, but only in
connection with its construction related activities; the right, but not the
obligation, to assume any other contract rights of use not specified as to any
equipment or service leased, rented, or utilized in the operation of the
Business; all other contract rights useful or related to the Business and rights
to make claims thereunder; and all purchasing and buying rights necessary or
useful for the continued operation of the Business.
(d.) Accounts Receivable as of the Effective Date, except those relating to
Green Hills, Rancho Palos Verdes, California (Job No. 191-23), which amounts are
set forth on Exhibit "D" attached hereto.
(e.) Rights pursuant to leases and agreements which are set forth on Exhibit
"E" attached hereto.
It is specifically intended that there shall not be conveyed or sold as a part
of the Business (i) any cash or cash equivalents on hand and/or held in accounts
maintained by or in connection with the operation of the Business; and (ii) all
of the Seller's minutes and other corporate records.
All of the assets to be sold to the Purchaser as described in this Section 1.1
shall be hereinafter collectively referred to as the "Assets."
Section 1.2. Payment of Consideration. The total purchase price for the Assets
is $10,000,000.00, payable in the form of a cashier's check or wire transfer,
plus the assumption of certain listed liabilities as described in Section 2.1
below and Purchaser's agreement to perform construction services for Seller
under that Construction Services Agreement to be executed in conjunction
herewith.
Section 1.3. Allocation of Purchase Price. The parties have agreed on the
fair-market values of the various categories of Assets being sold pursuant to
this Agreement, and those values are set out in Exhibit "F" attached hereto.
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Article Two
Assumption of Certain Liabilities
Section 2.1. Liabilities Assumed. It is agreed that, as additional
consideration for the conveyance of the Assets, the Purchaser shall assume all
obligations to provide services and/or merchandise pursuant to the terms of the
contracts listed on Exhibits "B" and "C" attached hereto for which work is in
the process of completion, and Seller's obligations pursuant to leases and other
contracts set forth on Exhibit "E". Purchaser's obligations shall specifically
include the warranty of work it performs with respect to the contracts listed
on Exhibits "B" and "C", consistent with Seller's customary construction
warranty.
As to all debts, obligations, liabilities, and duties (whether fixed or
contingent) of the Business which are not to be assumed by Purchaser as
expressly set forth in this Section, Seller agrees that it will fully indemnify
and hold Purchaser harmless from and against any loss, cost, or expense
(including attorneys' fees) that Purchaser might suffer or incur in any way
connected with or related to (a) any of such non-assumed obligations,
liabilities, or duties, or (b) any obligations, liabilities, or duties arising
solely from the operation of the Business by Seller before the Effective Date.
Likewise, Purchaser agrees that it will fully indemnify and hold Seller harmless
from and against any loss, cost, or expense (including attorney's fees) that it
might suffer or incur in any way connected with or related to (a) any of such
specifically assumed obligations, liabilities, or duties, or (b) any
obligations, liabilities, or duties arising solely from operation of the
Business by Purchaser after the Effective Date. It is not intended that the
provisions of this Section benefit anyone that is not a party to this Agreement.
Section 2.2. Project Overruns. Upon completion of each of the projects set
forth on Exhibit "B", in the event that a project is completed over estimated
cost, Seller will remit to Purchaser the amount that said project exceeds the
estimated cost, identified as the "1998 Revised Job Cost Estimate" on
Exhibit "B". However, Seller's obligation shall be limited to an aggregate of
$250,000.00 with respect to all of the projects set forth on Exhibit "B". Upon
completion of a project listed on Exhibit "C", in the event that such a project
is completed over estimated cost, Seller will remit to Purchaser the amount that
said project exceeds the estimated cost identified as the "Job Cost Estimate B-4
Overhead 7/98" on Exhibit "C". Seller shall have the right to audit Purchaser's
records and accounts prior to remitting any amount to Purchaser pursuant to this
section.
Article Three
The Closing and Effective Date
Section 3.1. Closing and Effective Date. The sale and purchase of the Assets
as provided in Article I hereof (the "Closing") shall occur at the offices of
Seller, or at such other location as may be mutually agreed upon, on September
16, 1998. The date of the Closing is herein called the "Closing Date." At the
Closing, the Seller shall execute and deliver to the Purchaser
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(a) a general warranty Bill of Sale conveying all of the Assets and (b) an
Assignment and Assumption instrument by which certain continuing rights and
obligations will be assigned to and assumed by Purchaser, against payment and
delivery by the Purchaser of the total purchase price therefor as set forth in
Section 1.2 hereof. In addition, the Seller shall execute and deliver to and
in favor of the Purchaser such other instruments of transfer, conveyance, and
assignment, in forms satisfactory to counsel for Purchaser, as shall be
effective to vest good title to the Assets in Purchaser. The Seller agrees that
whatever right, title, or interest it may have in or to the Assets shall be
deemed fully and effectively conveyed to the Purchaser by and pursuant to the
terms of the Bill of Sale and other such instruments to be executed and
delivered. The Seller further agrees to take all steps as may be required to
put Purchaser in actual possession and control of the Assets and to take such
actions as may be necessary to allow Purchaser full and unfettered use of the
trade name Gibraltar Mausoleum Construction Co., in connection with its
construction related activities. All action to be taken at the Closing and all
documents and instruments to be delivered in connection therewith, and all
actions contemplated in Section 4.1 hereof and all documents and instruments to
be delivered in connection therewith, shall be considered to have been taken or
delivered simultaneously, and no such action, delivery, or payment shall be
considered complete until all actions incident to the Closing, and all actions
incident to the related transactions described in Section 4.1 hereof, have been
completed.
It is recognized that the Seller is presently operating a mausoleum construction
business as an ongoing operation, which Purchaser intends to continue operating
subsequent to the Closing, and in connection therewith, the following additional
agreements are made:
(a.) The "Effective Date" of the transfer of the Assets and business operations
of the Business shall be as of 11:59 p.m. on September 30, 1998. Possession of
all property and assets to be conveyed pursuant hereto shall be deemed delivered
as of the Effective Date.
(b.) All personal property taxes and similar assessments relating to the Assets
shall be prorated to the Effective Date. To the extent any party pays any
expense relating to or benefitting a period of operation of the Business other
than the applicable period of its ownership, it shall immediately, upon such
payment and notice to the party properly owing the expense, be reimbursed
therefor.
(c.) The parties agree to cooperate with each other so that during the twelve
(12) month period after the closing there is an orderly transfer of the business
operations of the Business, collection of all applicable income of each party,
and payment of applicable expenses attributable to each party in accordance with
the terms and conditions of this Agreement.
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Article Four
Related Transactions
Section 4.1. Related Transactions. Also at the Closing, the Purchaser and
Seller shall enter into a Construction Services Agreement wherein Purchaser will
agree to perform certain construction services for Seller for a period of five
(5) years after the Effective Date. Such Agreement shall be dated as of the
Closing Date and shall contain such provisions and agreements as the parties
thereto shall approve prior to the Closing.
Article Five
Representations and Warranties of the Seller
The Seller represents and warrants to and agrees with the Purchaser that:
Section 5.1. Organization and Existence of Seller. The Seller is a corporation
duly organized, validly existing, and in good standing under the laws of
Delaware, with all requisite corporate power to enter into and perform this
Agreement.
Section 5.2. Title to Assets, Etc. The Seller is in the possession of and has
good and indefeasible title to all of the Assets, free and clear of all liens,
mortgages, security interests, encumbrances, and restrictions, including any
conditional sale or other title retention agreements, except:
(a.) liens for any taxes not yet due and payable;
(b.) minor defects and irregularities that do not impair the use thereof for
the purposes for which they are held.
Section 5.3. Furniture, Machinery and Equipment. All items of those fixtures,
machinery, and equipment listed on Exhibit "A" attached hereto are in good
operating condition, in a state of reasonable maintenance and repair, and free
from any known defects.
Section 5.4. Contracts. Each contract or agreement, the liability for which
is to be assumed by Purchaser pursuant to Section 2.1 above, if any, and/or
which will otherwise accrue to the benefit of Purchaser as a result of the
consummation of the transaction contemplated herein, is in full force and effect
and neither Seller (nor to the best knowledge of Seller, any other party
thereto) is in default to any degree with respect to its obligations
thereunder. Except for those to be so assumed by the Purchaser or as otherwise
expressly disclosed to the Purchaser in writing, there are no other contracts
or agreements of any kind to which the Seller is a party in any way related to
or arising from the operation of the Business or that affects the continued
operation of the Business in its present form in any way.
Section 5.5. Brokers. The Seller is not a party to or in any way obligated
under any broker's contract or other such agreement, and there are no
outstanding claims against Seller for the payment of any broker's or finder's
fee in connection with the origins, negotiation, execution, or performance of
this Agreement.
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Section 5.6. Authority of the Seller. The execution, delivery, and performance
by the Seller of this Agreement and all other agreements ancillary hereto to
which it will be a party have been duly and effectively authorized by the Board
of Directors of the Seller and by the Executive Committee of the Board of
Directors of Service Corporation International, and no further corporate action
is necessary on the part of the Seller to make this Agreement and such other
agreements valid and binding upon the Seller in accordance with their respective
terms. The Closing of the transactions contemplated by this Agreement will not
result in any breach of, violation of, or default under the Articles of
Incorporation or Bylaws of Seller or any judgment, decree, mortgage, agreement,
indenture, or other instrument applicable to Seller.
Section 5.7 Environmental Legal and Regulatory Compliance. To the best of
Seller's knowledge, Seller has operated and is presently operating, in
substantial compliance with all applicable federal, state and local statutes and
regulations, including environmental statutes and regulations.
Article Six
Representations and Warranties of the Purchaser
The Purchaser represents and warrants to and agrees with the Seller that:
Section 6.1. Organization and Existence of Purchaser. The Purchaser is a
corporation duly organized, validly existing, and in good standing under the
laws of Pennsylvania, with all requisite corporate power to enter into and
perform this Agreement.
Section 6.2. Brokers. The Purchaser is not a party to or in any way obligated
under any broker's contract or other agreement, and there are no outstanding
claims against Purchaser for the payment of any broker's or finder's fee in
connection with the origin, negotiation, execution, or performance of this
Agreement.
Section 6.3. Authority. The execution, delivery, and performance by the
Purchaser of this Agreement and all other agreements ancillary hereto to which
it will be a party have been duly and effectively authorized by the Board of
Directors of the Purchaser, and no further corporate action is necessary on the
part of the Purchaser to make this Agreement and such other agreements valid and
binding upon the Purchaser in accordance with their respective terms. The
closing of the transactions contemplated by this Agreement will not result in
any breach of, violation of, or default under the articles of incorporation or
bylaws of Purchaser or any judgment, decree, mortgage, agreement, indenture, or
other instrument applicable to Purchaser.
Article Seven
Covenants of the Parties
The Seller covenants with the Purchaser that:
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Section 7.1. Conduct of Business. Except as specifically contemplated in this
Agreement, from the date of this Agreement to the Closing, the Business and all
of its financial affairs will be conducted only in the ordinary course.
Section 7.2. Access to Information. The Seller will, prior to the Closing,
give to the Purchaser, its counsel, accountants, engineers, and other
representatives, full and free access to all properties, books, contracts,
commitments, and records of the Business related to the Assets so that the
Purchaser may have full opportunity to make such investigation and examination
as it shall desire to make of the affairs and properties of the Business,
provided that such investigation and examination shall not unreasonably
interfere with the continued operations of the Business.
Section 7.3. Preservation of Goodwill. The Seller will use its best efforts
to preserve the business organization of the Business, and, both prior and
subsequent to the Closing, to preserve for the Purchaser the goodwill of all
suppliers, customers, and others having or potentially having business relations
with the Business.
Section 7.4. Further Assurances. From time to time at the request of the
Purchaser and without further consideration, the Seller will execute and deliver
those additional instruments of conveyance and transfer and take such other
actions as the Purchaser may reasonably require to more effectively convey,
assign, transfer, and deliver the Assets to the Purchaser and otherwise carry
out the terms of this Agreement.
Section 7.5. Communications. Neither before nor after the Closing shall the
Seller issue or present any statement or release to anyone, including any
members of the press, regarding the transactions contemplated by this Agreement
without the written approval of Purchaser.
Section 7.6. Collection of Receivables. Any post-Effective Date collections
of the accounts receivable of the Business as of the Effective Date, which are
herein expressly to be retained by Seller, shall be made by Purchaser in the
ordinary course of the continued operation of the Business, and the amounts so
collected for the benefit of the Seller shall be remitted by the Purchaser to
the Seller on a periodic basis (at least monthly) after the Effective Date.
Article Eight
Conditions to Obligations of the Purchaser
The obligations of the Purchaser under this Agreement shall, at its option, be
subject to the following conditions, any one or more of which may be waived, in
whole or in part, in writing by the Purchaser:
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Section 8.1. Seller's Representations and Warranties True at Closing. The
Purchaser shall not have discovered any material error, misstatement, or
omission in the representations and warranties made by the Seller in Article V
hereof; the representations and warranties made by the Seller herein shall be
deemed to have been made again at and as of the time of Closing and shall then
be true in all material respects; and the Seller shall have performed and
complied with all agreements and conditions required by this Agreement to be
performed or complied with at or before the Closing.
Section 8.2. Approval by Counsel. All actions, proceedings, instruments, and
documents required to carry out the transactions contemplated by this Agreement
or incidental thereto, and all other related legal matters, shall have been
approved by legal counsel for the Purchaser, and such counsel shall have been
furnished with those copies of actions and proceedings and all other instruments
and documents that it has reasonably requested. There shall have been delivered
to Purchaser's counsel (a) a copy of the Seller's charter, including all
amendments thereto, certified by the Secretary of State or other appropriate
official of the State of Delaware, (b) a copy of the Bylaws of the Seller,
certified by the Secretary of Seller as being true and correct and in effect on
the Closing Date, (c) a certificate from the Secretary of State or other
appropriate official of the State of Delaware to the effect that the Seller is
in good standing and subsisting in such jurisdiction, and (d) a certificate as
to the tax good standing or other status of the Seller from the appropriate
Delaware official dated no later than fifteen (15) days prior to the Closing
Date.
Section 8.3. No Damage or Destruction. Prior to the Closing, there shall not
have occurred any casualty to any inventory, fixture, equipment, or machinery
used in the Business, as a result of which the monetary amount of damage or
destruction aggregates at least $5,000.00. Additionally, there shall have been
no changes in the properties or operations of the Business that would have a
materially adverse effect on the value of the Business, its properties, and/or
the Assets.
Section 8.4. Related Transactions. All related transactions contemplated by
Section 4.1 of this Agreement shall have been consummated to Purchaser's
satisfaction.
Section 8.5. Ownership of Assets. The Purchaser shall be satisfied that, after
the consummation of the transactions contemplated by this Agreement, the
Purchaser will have sole ownership of all of the Assets and that there shall
exist no potential for any claim by any third person of an ownership interest
in the Assets.
Article Nine
Conditions to Obligations of the Seller
The obligations of the Seller under this Agreement shall, at its option, be
subject to the following conditions, any one or more of which may be waived, in
whole or in part, in writing by the Seller:
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Section 9.1. Purchaser's Representations and Warranties True at Closing. The
Seller shall not have discovered any material error, misstatement, or omission
in the representations and warranties made by the Purchaser in Article Six
hereof; the representations and warranties made by the Purchaser herein shall
be deemed to have been made again at and as of the time of Closing, and shall
then be true in all material respects; and the Purchaser shall have performed
and complied with all agreements and conditions required in this Agreement to
be performed or complied with by it at or before the Closing.
Section 9.2. Approval by Counsel. All actions, proceedings, instruments, and
documents required to carry out the transactions contemplated by this Agreement
or incidental thereto, and all other related legal matters, shall have been
approved by legal counsel for the Seller, and such counsel shall have been
furnished with those copies of actions and proceedings and all other instruments
and documents that it has reasonably requested.
Section 9.3. Related Transactions. All related transactions contemplated by
Section 4.1 of this Agreement shall have been consummated to Seller's
satisfaction.
Article Ten
Indemnification by the Seller
Section 10.1. Indemnification by Seller. The Seller shall and hereby agrees
to indemnify and hold harmless the Purchaser, its successors, assigns, officers,
and directors, from and against any loss, cost, damage, deficiency, liability,
or expense (including reasonable attorneys' fees) caused by or arising out of:
(a.) any breach or default in the performance by the Seller of any covenant or
agreement of the Seller contained in this Agreement;
(b.) any breach of warranty or inaccurate or erroneous representation made by
the Seller herein or in any schedule hereto or in any certificate or other
instrument delivered by or on behalf of the Seller pursuant hereto;
(c.) the failure of the Seller to fully pay and discharge as and when the same
are due the obligations, liabilities, and/or duties relating to or arising from
the Business not to be assumed by the Purchaser as described above;
(d.) any violation or claimed violation of any statute, rule, regulation,
ordinance, order, or other law, which violation or claimed violation occurred
prior to the Effective Date;
(e.) to any applicable extent, the non-compliance by the parties with the bulk
sales laws of the State of Texas; and
(f.) any liability arising out of any or all actions, suits, settlements,
proceedings, claims, demands, assessments, judgments, costs, and expenses
(including reasonable attorneys' and accounting fees) incident to any of the
foregoing.
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The Seller shall reimburse the Purchaser an amount satisfactory to compensate
the Purchaser for any liability, obligation, claim, or adverse result arising
from an event or circumstance to which the foregoing indemnities relate. In
addition to any remedies that Purchaser may otherwise be entitled to by law, if
the Seller shall become obligated to indemnify the Purchaser pursuant to the
terms hereof, the Purchaser shall, at its option and without prejudice to any
right of the Purchaser to proceed directly against the Seller, be entitled to
immediately setoff all or any part of the amount of such indemnity against any
sums owing to the Seller under any agreement with the Purchaser or any of its
affiliates, to be entered into between the Seller and Purchaser as referenced
above. The proper, good faith, exercise of any such right of setoff, after
adequate notice to Seller and reasonable efforts to resolve any claim, by the
Purchaser hereunder shall not constitute a default under the terms of any such
agreement.
Article Eleven
Indemnification by Purchaser
Section 11.1. Indemnification by Purchaser. The Purchaser shall and hereby
agrees to indemnify and hold harmless the Seller, its affiliates, successors,
assigns, officers, and directors, from and against any loss, cost, damage,
deficiency, liability, or expense (including reasonable attorneys' fees) caused
by or arising out of:
(a.) any breach or default in the performance by the Purchaser of any covenant
or agreement of the Purchaser contained in this Agreement;
(b.) any breach of warranty or inaccurate or erroneous representation made by
Purchaser herein or in any schedule hereto or in any certificate or other
instrument delivered by or on behalf of the Purchaser pursuant hereto;
(c.) the failure of the Purchaser to fully pay and discharge as and when same
are due the obligations, liabilities, and/or duties relating to or arising from
the Business which are expressly to be assumed by the Purchaser as described
above;
(d.) any violation or claimed violation of any statute, rule, regulation,
ordinance, order, or other law, which violation or claimed violation occurs
after the Effective Date; and
(e.) any liability arising out of any or all actions, suits, settlements,
proceedings, claims, demands, assessments, judgments, costs, and expenses
(including reasonable attorneys' and accounting fees) incident to any of the
foregoing.
The Purchaser shall reimburse the Seller an amount satisfactory to compensate
the Seller for any liability, obligation, claim, or adverse result arising from
an event or circumstance to which the foregoing indemnities relate. In addition
to any remedies that the Seller may otherwise be entitled to by law, if the
Purchaser shall become obligated to indemnify the Seller pursuant to the terms
hereof, the Seller shall, at its option and without prejudice to any right of
the Seller to proceed directly against the Purchaser,
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be entitled to immediately setoff all or any part of the amount of such
indemnity against any sums owing to the Purchaser under any agreement with
Seller or any of its affiliates, to be entered into between Purchaser and Seller
as referenced above. The proper, good faith, exercise of any such right of
setoff, after adequate notice to the Purchaser and reasonable efforts to resolve
any claim, by the Seller hereunder shall not constitute a default under the
terms of any such agreement.
Article Twelve
Confidentiality
Purchaser acknowledges that, in the course of Purchaser's involvement with the
Business and in the course of Purchaser's association with the Seller, Purchaser
has received and learned and will receive and learn of trade secrets, lists of
customers, and other confidential information which Seller desires and intends
to protect. Purchaser acknowledges that, among other things, the management
methods, operating techniques, procedures, and methods; customer lists;
collection procedures; pricing structures; and financial reports, including
results of operations of Seller, are confidential. Purchaser agrees not to
reveal or divulge to anyone not affiliated with Purchaser any such confidential
information or trade secrets so long as the confidential or secret nature of
such information shall continue (which shall be continually presumed by Seller,
unless given written directive otherwise by Purchaser), unless specifically
required to do so by law or by court order. Purchaser further agrees not to use
any such confidential information or trade secrets in competing with Seller at
any time during or after the Effective Date. Notwithstanding the provisions in
the foregoing, Purchaser and Seller shall each be permitted to comply with their
respective reporting requirements to the Securities and Exchange Commission
without any prior disclosure or consent from the other party.
Article Thirteen
Miscellaneous
Section 13.1. Good Faith Efforts. All parties hereto agree to make reasonable,
good-faith efforts to carry out all of the terms of this Agreement, to satisfy
the conditions to their respective obligations as set forth in Articles Eight
and Nine hereof, and to effect the Closing as contemplated herein.
Section 13.2. Expenses. The Seller and the Purchaser shall each pay its own
expenses (including, without limitation, attorneys' and accounting fees and
expenses) incident to the preparation and carrying out of this Agreement and the
consummation of the transactions contemplated herein.
Section 13.3. Notices. All notices, requests, consents, and other
communications hereunder shall be in writing and shall be deemed to have been
delivered (i) on the date personally delivered, (ii) three (3) days after the
date same is mailed, first class, registered or certified mail, postage prepaid,
or (iii) when delivered by an overnight delivery service (including United
States Express Mail), with receipt acknowledged, and with all charges prepaid
by the sender addressed as provided in this section.
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Notices shall be directed as follows:
(1) If to the Seller, to:
Gibraltar Mausoleum Construction Company, Inc.
1929 Allen Parkway
Houston, Texas 77019
Attn: General Counsel
(2) If to the Purchaser, to:
Matthews International Corporation
1315 West Liberty Avenue
Pittsburgh, Pennsylvania 15226
Attn: David J. DeCarlo
or to such other address as shall be given by like method by any party to the
other party hereto.
Section 13.4. Assignment. This Agreement may not be assigned by any party
hereto without the consent of the other party hereto; provided, however, that
the rights and/or obligations of the Seller as contained in this Agreement or
any other agreement or instrument executed and delivered in connection with the
consummation of the transaction contemplated hereby may be assigned by it in
whole or in part to (i) any successor to Seller in any or all of the Assets or
operations of the Business or (ii) any other corporation or entity which is
wholly owned or controlled by SERVICE CORPORATION INTERNATIONAL, provided that
in either case, Purchaser shall not thereby be relieved of its obligations
hereunder.
Section 13.5. Successors Bound. Subject to the provisions of Section 13.4,
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
Section 13.6. Headings and Schedules. The section and paragraph headings in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. All exhibits attached hereto,
and all information set forth therein, are fully incorporated into the terms of
this Agreement by this reference for all purposes as though fully set forth at
length herein.
Section 13.7. Amendment. This Agreement may be amended only by an instrument
in writing executed by the parties hereto.
Section 13.8. Entire Agreement. This Agreement and the schedules,
certificates, and documents referred to herein constitute the entire agreement
of the parties hereto and supersede all prior oral and written negotiations,
understandings, and communications with respect to the subject matter hereof.
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Section 13.9. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
Section 13.10.Governing Law. This Agreement shall be construed and enforced
under and in accordance with and governed by the law of Texas.
Section 13.11. Attorneys' Fees and Specific Performance. In the event of any
controversy, claim, or dispute between or among any of the parties hereto
arising out of or relating to this Agreement or any default or breach or alleged
default or breach hereof, each party shall pay its own attorneys' fees and costs
associated with any such action. If any party hereto shall be joined as a party
in any judicial, administrative, or other legal proceeding arising from or
incidental to any obligation, conduct, or action of another party hereto, the
party so joined shall be entitled to be reimbursed by the other party for its
reasonable attorneys' fees and costs associated therewith. The parties agree
that damages for breach of the agreements and covenants contained herein will
be inadequate and that each of the parties shall be entitled to specific
performance, injunctive relief, or both.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto
as of the 16th day of September, 1998.
SELLER: PURCHASER:
GIBRALTAR MAUSOLEUM MATTHEWS INTERNATIONAL
CONSTRUCTION COMPANY, INC. CORPORATION, a Pennsylvania
A Delaware corporation corporation
By: Curtis G. Briggs By: D.J. DeCarlo
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Name: Curtis G. Briggs Name: D.J. DeCarlo
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Title: Secretary Title: President, Bronze Division
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