Exhibit 5.1
PURCHASE AND SALE OF ASSETS AGREEMENT
between
USL ENVIRONMENTAL SERVICES, INC.,
a Maryland corporation, d/b/a A & A Environmental
and
PERMA-FIX OF MARYLAND, INC., a Maryland corporation
TABLE OF CONTENTS
ARTICLE I
Sale of Assets................................................................1
Section 1.1 Purchase and Sale of Acquired Assets.............................1
Section 1.2 Acquired Assets..................................................1
Section 1.3 Excluded Assets..................................................3
ARTICLE II
Payment of Purchase Price.....................................................3
Section 2.1 Purchase Price...................................................3
Section 2.2 Purchase Price Adjustment........................................3
Section 2.3 Assumption of Liabilities........................................4
Section 2.4 Excluded Liabilities.............................................4
ARTICLE III
Closing.......................................................................5
Section 3.1 Date and Place of Closing........................................5
Section 3.2 Conditions to Buyer's Obligation to Close........................5
Section 3.3 Conditions to Seller's Obligation to Close.......................8
Section 3.4 Deliveries by Seller.............................................8
Section 3.5 Deliveries by Buyer..............................................9
ARTICLE IV
Covenants.....................................................................9
Section 4.1 Transition.......................................................9
Section 4.2 Inventory; Disposal Responsibility...............................10
Section 4.3 Retained Obligations.............................................10
Section 4.5. Access to Server................................................10
Section 4.6 Employee Health Insurance........................................10
Section 4.7 Title Insurance; Title Defects...................................10
ARTICLE V 11
Representations and Warranties of Seller .....................................11
Section 5.1 ..................................................................11
Section 5.2 Disclaimer of Warranties.........................................13
Section 5.3 Survival.........................................................13
ARTICLE VI
Representations and Warranties of Buyer ......................................14
Section 6.1...................................................................14
Section 6.2 Survival.........................................................14
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ARTICLE VII
Indemnification...............................................................14
Section 7.1 Indemnification by Seller........................................14
Section 7.2 Indemnification by Buyer.........................................15
Section 7.3 Procedure for Indemnification....................................15
Section 7.4 Sole Remedy......................................................16
ARTICLE VIII
General ......................................................................17
Section 8.1 Further Assurance................................................17
Section 8.2 Waiver...........................................................17
Section 8.3 Time of the Essence..............................................17
Section 8.4 Notice...........................................................17
Section 8.5 Entire Agreement.................................................18
Section 8.6 Binding Effect; Assignment.......................................18
Section 8.7 Expenses of Transaction..........................................18
Section 8.8 Broker's Commission..............................................18
Section 8.9 Modification; Remedies Cumulative................................19
Section 8.10 Severability....................................................19
Section 8.11 Governing Law...................................................19
Section 8.12 Counterparts and Facsimile Signatures...........................19
Section 8.13 Authority.......................................................19
Section 8.14 Certain Definitions.............................................19
Section 8.15 Rules of Construction...........................................20
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PURCHASE AND SALE OF ASSETS AGREEMENT
THIS PURCHASE AND SALE OF ASSETS AGREEMENT (the "Agreement") is executed
and delivered as of this 23rd day of March 2004, by and among USL ENVIRONMENTAL
SERVICES, INC., a Maryland corporation, d/b/a A & A Environmental ("Seller"),
and PERMA-FIX OF MARYLAND, INC., a Maryland corporation ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller is the wholly owned subsidiary of U S Liquids, Inc., a
Delaware corporation ("U S Liquids"); and
WHEREAS, Seller owns certain contractual rights, properties, equipment and
other operating assets relating to its environmental and industrial maintenance
services, non-hazardous liquid waste collection and processing and hazardous
waste transportation business in Pennsylvania, Maryland, Virginia, Delaware and
the District of Columbia (the "Business"); and
WHEREAS, Buyer desires to purchase and acquire all of the operating assets
and contractual rights associated with the Business as more particularly set
forth herein, and Seller desires to sell such assets and contractual rights to
Buyer, all in accordance with the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged, the parties agree as follows:
ARTICLE I
Sale of Assets
Section 1.1 Purchase and Sale of Acquired Assets. Upon the terms and
subject to the conditions set forth in this Agreement, at the Closing, the
Seller shall sell, assign, transfer, and convey to the Buyer, and the Buyer
shall purchase from the Seller, free and clear of all Liens, all rights, title,
and interest in and to the Acquired Assets. For purposes of this Agreement, the
term "Liens" means all security interests, liens, mortgages, deeds of trust,
options, claims, charges, pledges, restrictions, equitable interests, easements,
property rights or encumbrances of any nature.
Section 1.2 Acquired Assets. The term "Acquired Assets" means all right,
title and interest in ll assets, both tangible and intangible, owned and/or
operated by Seller and/or used by Seller in the operation of its Business
(except for the Excluded Assets, as defined in Section 1.3), including but not
limited to all of the following:
(a) all equipment and machinery used or for use primarily in the
operations of the Business, including the equipment listed in the attached
Schedule 1.2 (a) (the "Equipment");
(b) all motor vehicles and other rolling stock used or for use
primarily in the Business (the "Rolling Stock"), including the Rolling Stock
listed and more completely described
by manufacturer, model number and model year in the attached Schedule 1.2(b);
(c) all of the customers of the Business ("Customer Accounts"), the
listing of which is set forth in the attached Schedule 1.2(c);
(d) all accounts receivable of Seller relating to the Business as of
the Closing Date ("Receivables"), a listing of which, as of March 12, 2004, is
attached as Schedule 1.2(d);
(e) to the extent transferable, all permits, licenses, franchises,
consents and other approvals relating to the Business set forth in the attached
Schedule 1.2(e) (the "Permits");
(f) the real property used in the Business, with all improvements
and appurtenances constructed thereon, which is more particularly described in
attached Schedule 1.2(f) (the "Real Property");
(g) all of the inventory of spare parts, tires, office and shop
supplies, if any, on the Closing Date (the "Inventory")
(h) all furnishings and fixtures used or for use in the operations
of the Business, including the equipment and furnishings listed in the Schedule
1.2(h) (the "Furnishings");
(i) to the extent transferable, all contractual rights, warranties,
and obligations relating exclusively to the Business or the assets owned by
Seller, whether or not in writing, including all equipment leases, supply or
vendor contracts, the Customer Accounts and all other contracts to which Seller
is a party or by which it is bound, including the contracts set forth in the
attached Schedule 1.2(i) (the "Business Contracts"); provided, however, the
Buyer shall not be liable, obligated or responsible for any claims, obligations,
actions, demand, loss or expenses arising as a result of acts or actions or
events or requirements occurring, or required to be performed, prior to the
Closing Date under such Business Contracts.
(j) all telephone numbers currently used by or assigned to the
Business;
(k) all trademarks, service marks, trade logos, patents, patent
application and trade names used in the Business, the URL associated with any
web sites owned and used by the Business (if any), and the rights to all web
sites owned and operated by the Business (if any), all of which are listed in
attached Schedule 1.2(k);
(l) all petty cash and all certificates of deposit with commercial
banks, savings and loans and/or other financial institutions;
(m) all existing documents, books and records, files, and other such
material (including electronically stored materials) related to each of the
foregoing and the Business (the "Books and Records"); and
(n) the goodwill and going concern value generated by Seller with
respect to the Business, if any.
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Section 1.3 Excluded Assets. The term "Excluded Assets" means the
following assets owned by Seller: (a) local checking accounts in the name or on
deposit in the name of Seller; (b) inter-company receivables and inter-company
payables; (c) all contracts and contract rights and obligations of Seller
(whether oral or in writing), other than the Business Contracts; (d) all
commitments, lists, leases, permits, licenses, consents, approvals, franchises
and other instruments not relating to the Business, the Acquired Assets or the
Real Property, or not assignable to Buyer; (e) all computer software and
programs of Seller or Seller's parent company, U S Liquids; (f) all motor
vehicles of Seller that are not included in the Rolling Stock; (g) all other
assets and property, real or personal, tangible or intangible, not listed or
referred to in Section 1.2, above; and (h) all of the specific assets and
property set forth on the attached Schedule 1.3. The Excluded Assets will remain
the property of the Seller.
ARTICLE II
Payment of Purchase Price
Section 2.1 Purchase Price. At the Closing, Buyer shall pay to Seller the
aggregate sum of $2,734,686.00, which amount is subject to adjustment pursuant
to Sections 2.2 and 4.6 and the other terms of this Agreement, (such amount, as
adjusted pursuant to Sections 2.2 and 4.6 and the other terms hereof is referred
to as the "Purchase Price"). The Purchase Price is payable by a wire transfer
made pursuant to the wiring instructions contained in the attached Schedule 2.1.
Section 2.2 Purchase Price Adjustment. On the Closing Date, the Purchase
Price will be (a) increased by the dollar amount by which Seller's Net Working
Capital (as defined below), as reflected in the Closing Balance Sheet (as
defined below), is greater than $1,544,000, and (b) decreased by the dollar
amount by which Seller's Net Working Capital, as reflected in the Closing
Balance Sheet, is less than $1,544,000.
(a) For purposes of this Agreement, the term "Net Working Capital"
means the amount equal to (a) the sum of all of Seller's (i) accounts receivable
excluding accounts receivable owing by Affiliates of Seller and net of bad debt
reserves, (ii) pre-paid expenses, and (iii) inventory, minus (b) the sum of (i)
the Assumed Payables (hereafter defined), (ii) all accounts payable accruals,
including accrued processing cost relating to transportation and disposal cost
and accruals reflecting unreimbursed employee business expenses incurred by
employees of the Seller solely for performing emergency response work during the
period beginning the Closing Balance Sheet, and ending March 22, 2004, and which
employees are employed by the Buyer immediately upon the Closing, (iii)
additional adjusted payroll expense over and above the amount estimated by the
Seller as of March 19, 2004, for emergency response work on March 20, 2004 and
March 21, 2004, and (iv) checks that the Seller has delivered to its trade
vendors arising in the ordinary course of business that have not cleared the
Seller's bank as of the Closing Date.
(b) For purposes of this Agreement, the term "Closing Balance Sheet"
means the true, complete and accurate unaudited balance sheet of Seller, as of
the March 12, 2004, in the form and substance agreed upon between Buyer and
Seller prepared in accordance United
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States generally accepted accounting principles, consistently applied ("GAAP"),
which, to the extent required by GAAP, shall include all accruals, except as
otherwise provided by the terms of this Agreement.
Section 2.3 Assumption of Liabilities. From and after the Closing Date,
Buyer shall assume, discharge and pay all of the following debts, liabilities
and obligations of the Seller, but only to the extent specifically set forth on
Schedule 2.3 (the "Assumed Liabilities"): (a) current trade payables set forth
on the Closing Balance Sheet that are outstanding as of the Closing (including
any checks delivered by Seller to its trade vendors arising in the ordinary
course of business that have not been cleared by Seller's banks as of the
Closing Date), that were incurred in the ordinary course of the business and
which are listed in the attached (the "Assumed Payables"), and (b) all
obligations, as of the Closing, arising under the Permits, real estate lease and
Business Contracts, but only to the extent that such obligations first arise and
are first required to be performed under such Permits, Leases and Business
Contracts after the Closing.
Section 2.4 Excluded Liabilities. Except for the Assumed Liabilities as
provided in Section 2.3, Buyer is not assuming any debt, liability or obligation
of Seller and Seller shall retain and, unless disputed in good faith, timely
pay, perform and discharge, and Seller shall indemnify, defend and hold harmless
Buyer from, all debts, liabilities and obligations of Seller, whether relating
to the Business, the Acquired Assets or otherwise, and arising or accruing prior
to the Closing Date, including the following:
(a) all liabilities and obligations of Seller with respect to any
claim, demand, cause of action, suit, proceeding, judgment, loss, liability,
damage or expense against Seller, including all liabilities and obligations
under Employee Benefit Plans (as defined in Section 5.1(k);
(b) any other debt, liability or obligation of Seller (including,
but not limited to, debts, liabilities and obligations under all of Seller's
Permits, Leases and Business Contracts) that accrued, occurred or arose prior to
the Closing Date;
(c) all liabilities and obligations to all employees of Seller
accrued since its inception through the Closing Date for Seller's employees,
including accruals reflecting all earned but unpaid vacations, holidays and
bonuses as shown in the Closing Balance Sheet;
(d) all liabilities and obligations relating to Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), with respect to Seller's
employees;
(e) all income taxes, payroll taxes, statutory federal, state and
local taxes and any taxes which may become due by virtue of a change in Seller's
accounting method or as a result of the transactions contemplated by this
Agreement;
(f) all income taxes, payroll taxes, statutory federal, state and
local taxes that Seller may owe relating to or arising in connection with its
business activities or operations occurring on or prior to the Closing Date;
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(g) all debt and liabilities between Seller and any Affiliate of
Seller;
(h) any environmental or other claims, demands, actions, losses,
judgments, suits made or arising under any Environmental Laws, toxic tort laws
or otherwise relating to, or involving or in connection with any real or
personal property (other than the Real Property included in the Acquired Assets)
or events on or prior to the Closing Date;
(i) any present or future environmental and/or toxic tort liability
for any past activities, past practices, or past projects on-site or on any
customer sites, which were performed by Seller, any Affiliate of Seller, or any
other companies or subsidiaries acquired, owned, or operated by U S Liquids; and
(j) any debt, liability or obligation of Seller that is not
specifically listed in attached Schedule 2.1.
The Buyer shall be entitled to the benefit of and shall have the right to
enforce all of the Seller's rights, defenses or claims under or related to the
Business Contracts.
ARTICLE III
Closing
Section 3.1 Date and Place of Closing. Unless the parties otherwise agree,
this transaction shall be closed when all the conditions of this Article III
have been satisfied and all documents required by this Agreement have been
signed and delivered to the respective parties (the "Closing"). The Closing
shall take place at the offices of Mayer Brown Rowe and Mawe at 10:00 a.m., on
March 23, 2004 ("Closing Date"), or at such other time and place mutually
agreeable to Buyer and Seller.
Section 3.2 Conditions to Buyer's Obligation to Close.
(a) Buyer's Review of Seller and the Assets. Buyer shall have from
the date of the execution of this Agreement until the Closing Date (the "Review
Period") to examine, investigate and review (i) the financial statements,
balance sheets and books and records of Seller and (ii) the Acquired Assets for
the purpose of determining whether the Business and the Acquired Assets are
suitable for Buyer's intended use. Seller has provided Buyer with all documents
and materials relating to Seller, the Business and the Acquired Assets which are
in the possession and control of Seller, which are reasonably available to
Seller or Seller's Affiliates, in addition to such documents and materials which
have been requested by Buyer. During the Review Period, Buyer, its agents,
contractors and subcontractors shall have the right to enter upon the Real
Property, at reasonable times during ordinary business hours, to make any and
all inspections and tests as Buyer deems desirable and which may be accomplished
without causing any alteration or material damage to the Acquired Assets. At any
time during the Review Period, Buyer may terminate this Agreement, with or
without cause, by written notice to Seller;
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(b) Approval by Lender. Buyer's lenders under all credit facilities
shall have been consented to the transactions contemplated by this Agreement;
(c) Financing. Buyer shall have secured the funds necessary to
enable Buyer to fund the Purchase Price, with such funding on the terms and the
conditions satisfactory to Buyer in Buyer's sole discretion;
(d) Representations and Warranties of Seller to be True and
Compliance With Covenants. Except to the extent waived in writing by Buyer
hereunder, (i) the representations and warranties of Seller herein contained
shall be true in all material respects on the Closing Date with the same effect
as though made at such time; and (ii) Seller shall have performed all
obligations and complied with all covenants, obligations, and agreements
required by this Agreement to be performed or complied with by Seller on or
prior to the Closing Date. Seller shall also have delivered to Buyer a
certificate of Seller (in form and substance satisfactory to Buyer), dated the
Closing Date and signed by Seller, to both of the aforementioned effects;
(e) Third Party Consents. Seller shall have obtained (i) consents to
the transactions contemplated by this Agreement from the parties to all
contracts, permits, agreements, debt instruments and other documents referred to
in the Schedules delivered by Seller to Buyer in accordance with this Agreement
or otherwise, which require such consents and (ii) consents from, or
notification to, all Governmental Authorities (as defined below) which require
such consents or notifications. For purposes of the Agreement, the term
"Governmental Authority" means any agency, instrumentality, department,
commission, court, tribunal or board of any government, whether foreign or
domestic and whether national, federal, state, provincial, or local;
(f) No Material Adverse Change. There shall not have occurred (i)
any material adverse change since February 29, 2004, in the business,
properties, assets, results of operations or financial condition of Seller, or
(ii) any loss or damage to any of the properties or assets (whether or not
covered by insurance) of Seller which will materially affect or impair the
ability of Seller to conduct, after consummation of the transactions
contemplated hereby, the business of Seller as now being conducted by Seller;
(g) Statutory Requirements; Litigation. In a manner satisfactory to
Buyer, all authorizations, consents and approvals of all Governmental
Authorities required to be obtained in order to permit consummation by Seller of
the transactions contemplated by this Agreement and to permit the business
presently conducted by Seller to continue unimpaired immediately following the
Closing shall have been obtained. Between the date of this Agreement and the
Closing, no Governmental Authority, whether federal, state or local, shall have
instituted (or threatened to institute either orally or in a writing directed to
Seller or Seller's Affiliates) an investigation which is pending on the Closing
relating to this Agreement and the transactions contemplated hereby, and between
the date of this Agreement and the Closing no action or proceeding shall have
been instituted or, to the knowledge of Seller, shall have been threatened
before a court or other governmental body or by any public authority to restrain
or prohibit the
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transactions contemplated by this Agreement or to obtain damages in respect
thereof;
(h) Opinions of Seller's Counsel and Delaware Counsel. Buyer shall
have received from counsel licensed and regularly practicing in the State of
Delaware and acceptable to Buyer and its counsel, an opinion, dated the Closing
Date, stating that the approval of the shareholders of U S Liquid is not
required under the Delaware General Corporation Law in order to lawfully
consummate the transactions contemplated by this Agreement, in the form
reasonably satisfactory to Buyer and its counsel;
(i) Environmental Audit. Buyer shall have conducted and completed an
environmental audit of Seller, and shall have determined to the satisfaction of
Buyer that, (i) Seller has been and is currently in compliance in all material
respects with all applicable Environmental Laws, except as otherwise disclosed
herein; (ii) none of the assets (including, but not limited to, the soils and
groundwater on or under the Real Property) owned, leased, operated or used by
Seller are contaminated with any hazardous substance (as defined in Section
101(14) of CERCLA or any analogous state or local Laws) or petroleum (as defined
in Subtitle I of RCRA or any analogous state or local Laws) in a manner that
might have a material adverse effect on Seller, except as otherwise disclosed
herein; and (iii) Seller is not or would not be subject to any liability in any
material amount under any provision, or as a result of any past or present
violation, of any applicable Environmental Laws. For purposes of this Agreement,
the term "Environmental Laws" means any federal or state laws applicable to the
Business or Seller in effect as of the date of this Agreement and the Closing
Date relating to Hazardous Substances (as defined below) or the protection of
the environment under the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, 42 U.S.C. ss.9601 et seq. as amended by the Superfund
Amendments and Reauthorization Act ("CERCLA"); the Resource Conservation and
Recovery Act, 42 U.S.C. ss.6901 et seq.; the Hazardous Material Transportation
Act, 42 U.S.C. ss.1801 et seq.; the Federal Water Pollution Control Act, 33
U.S.C. ss.1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. ss.2601 et
seq.; the Clean Air Act, 42 U.S.C. ss.7401 et seq.; and all analogous laws of
the State of Maryland; each as amended or supplemented as of the date of this
Agreement and the Closing and any rules or regulations promulgated under any of
the foregoing as of the date of this Agreement and the Closing. The term
"Hazardous Substances" means hazardous substances subject to regulation under
CERCLA;
(j) Permits and Licenses. All permits and licenses (including, but
not limited to, all permits issued or issuable by Governmental Authorities under
all Environmental Laws) which Buyer deems necessary to conduct Seller's business
after the Closing Date as currently conducted by Seller shall have been duly and
validly transferred, or approved for transfer to Buyer, effective upon the
Closing, in a manner satisfactory to Buyer by all appropriate Governmental
Authorities;
(k) No Liens on Acquired Assets. Seller's debts and obligations to
lenders under all existing credit facilities shall have been paid in full, and
such lenders shall have released all liens and security interest in and to the
assets of Seller, all in form and substance satisfactory to Buyer. All Acquired
Assets shall be free and clear of any and all Liens;
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(l) Financial Statements. Buyer shall have received from BDO
Siedman, LLP, a letter stating that Buyer is not required to provide to and/or
file with, the Securities and Exchange Commission audited financial statements
of the Business pursuant to Rule 3-05 of Regulation S-X (17 CFR Part 210) as a
result of consummation of this Agreement;
(m) Good Standing Certificates. Seller shall have delivered to Buyer
good standing and tax certificates (or analogous documents), dated as close as
practicable to the Closing, from the appropriate authorities in each
jurisdiction of incorporation of Seller and in each jurisdiction in which Seller
is qualified to do business, showing Seller to be in good standing and to have
paid all taxes due in the applicable jurisdiction;
(n) Title Commitment. Buyer shall have received a commitment to
issue to Buyer a title insurance policy insuring fee simple title to the Real
Property, contain such exceptions as acceptable to Buyer, in Buyer's sole
discretion;
(o) Release. Chaparral Group LLC, Wiley O Orr and William A. Rothrok
shall have executed a release releasing U S Liquids, the Seller, the Buyer and
their affiliates from any and all claims, demands, liabilities or actions as a
result of or in connection with or relating to that certain letter of intent
dated November 19, 2003, between Chaparral Group LLC and U S Liquids, more fully
described in that certain letter dated March 5, 2004, to counsel for the Seller
and Dr. Louis F. Centofanti of Perma-Fix Environmental Services, Inc. from
Slovak Baron and Empey LLP, with such release containing such terms and
provisions that are satisfactory to Buyer.
(p) Settlement of Lawsuits. Seller shall have settled, on terms
satisfactory to the Buyer, all of the litigation pending against the Seller,
including the litigation listed in Schedule 5.1(k) attached to this Agreement,
and shall demonstrate to Buyer that all settlement amounts have been duly paid.
(q) Deliveries. Seller shall have delivered to Buyer the items set
forth as Seller's deliveries in Section 3.4 of this Agreement.
Section 3.3 Conditions to Seller's Obligation to Close.
(a) Approval by Lenders. The execution of this Agreement, and
consummation of the transactions contemplated by this Agreement, shall have been
approved by U S Liquid's lenders under all credit facilities in effect as of the
Closing Date.
(b) Deliveries. Buyer shall have delivered to Seller the items set
forth as Buyer's deliveries in Section 3.5 of this Agreement.
Section 3.4 Deliveries by Seller. At Closing, Seller shall deliver to
Buyer, duly executed originals of the following:
(a) A Bill of Sale for the Acquired Assets, including, the
Equipment, Rolling
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Stock, Furnishings and Inventory, in form substantially identical to that set
forth in the attached Exhibit A;
(b) An Assignment and Assumption Agreement for the Customer
Accounts, Permits, accounts receivables, Business Contracts and other assets, in
form substantially identical to that set forth in the attached Exhibit B;
(b) An executed deed, conveying to Buyer, subject only to Liens for
ad valorem taxes not yet due and payable, the Real Property, in form
substantially identical to that set forth in the attached Exhibit C;
(c) A "Non-Competition Agreement" substantially in the form attached
as Exhibit D.
(d) A "Software License and Support Services Agreement"
substantially in the form attached as Exhibit E.
(e) A certified copy of resolutions of the shareholders and
directors of Seller, in form and substance satisfactory to Buyer (i) authorizing
the execution and delivery of this Agreement, the sale of the Assets to Buyer
and the consummation of the transactions contemplated by this Agreement, along
with true and correct copies of the articles of incorporation and bylaws of
Seller; and (ii) an incumbency certificate for the officers of Seller.
(e) A certificate pursuant to Section 3.2(d).
(f) The opinions of Delaware counsel pursuant to Section 3.4(h).
(g) Good standing and tax certificates pursuant to Section 3.4(m).
(h) If any of the Acquired Assets are encumbered by any Lien, a
release of all such Liens in form and substance acceptable to Buyer.
(i) executed consents to assignment from each of the parties to each
of the Contracts other than Seller to the extent a consent to the assignment of
such Contract by Seller to Buyer is required by the terms of such Contract or is
otherwise required by law;
(j) Such other documents as are reasonably requested by Buyer in
connection with the consummation of the transactions contemplated hereto.
Section 3.5 Deliveries by Buyer. At Closing, Buyer shall deliver to
Seller:
(a) The Purchase Price in cash, by wire transfer to Seller, as
provided in Section 2.1, above.
(b) Certified copies of the resolutions of the shareholders and
directors of
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Buyer authorizing the execution and delivery of this Agreement, the purchase of
the Acquired Assets from Seller and the consummation of the transactions
contemplated by this Agreement, along with true and correct copies of the
articles of incorporation and bylaws of Buyer.
(c) Such other documents as are reasonably requested by Seller in
connection with the consummation of the transactions contemplated hereto.
ARTICLE IV
Covenants
Section 4.1 Transition. Between the date hereof and the Closing Date,
Seller will not take any action designed or intended to have the effect of
discouraging any customer or business associate of Seller from maintaining the
same business relationships with Buyer after the Closing that it maintained with
Seller before the Closing, and will use good faith efforts to preserve such
customers and business associates. In addition, Seller will cause the Business
to be operated in its normal course from the date of the execution of this
Agreement to the Closing Date.
Section 4.2 Inventory; Disposal Responsibility. Buyer and Seller agree
that any waste materials stored at the Real Property included in the Acquired
Assets shall become the property and responsibility of Buyer at the time of
Closing. Seller shall not be obligated to empty or clean any storage tanks or
dispose of any waste materials or residual contents existing on the Real
Property on the Closing Date. Buyer covenants and agrees that following the
Closing it will assume full responsibility for the proper disposal of any waste
materials and of any residual contents of the storage tanks then located on the
Real Property.
Section 4.3 Employees. On or prior to the Closing Date, Seller shall
terminate all of its employees associated with the Business ("Terminated
Employees"). Buyer shall have the option, but not the obligation, to offer
employment to any of the Terminated Employees upon conditions of employment
established by Buyer in its sole discretion. Seller shall be liable for all
liabilities and responsible for all obligations to its employees and shall pay
all expenses relating to Terminated Employees through the Closing Date
(including the Closing Date). These expenses shall include, but are not limited
to, all salary and wages, accrued vacation leave, accrued personal days,
commissions, employee incentives, severance packages, reimbursements for
reasonable and necessary business expenses, union dues, contributions to
employee savings and pension plans, employer payroll taxes, unemployment
compensation charges, workers' compensation claims based on injuries initially
occurring prior to or on the Closing Date (regardless of the date on which the
claim was filed or whether subsequent injuries occurred), ERISA obligations, and
all similar expenses. The fact that Buyer may offer employment to certain of the
Terminated Employees and may actually hire certain of the Terminated Employees
shall not affect Seller's obligations under this Section 4.3.
Section 4.5. Access to Server. For a period of 90 days following the
Closing, and subject to the terms of the Software License and Support Services
Agreement, Buyer shall have right to on-line access to Seller's computer system
server and to the server of U S Liquids for the purpose of facilitating Buyer's
operation of its intended business which will utilize the Assets.
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Section 4.6 Title Insurance; Survey; Title Defects. Seller shall obtain
commitments for title insurance with respect to the Real Property and deliver to
Buyer a certified ALTA survey as to the Real Property to the title company. The
title commitment shall show good and marketable fee simple title in Seller to
the Real Property, commit the title company to issue to the Buyer a title policy
showing good and marketable title in fee simple in the Buyer, free and clear of
Liens. The title commitment shall be in form and commitment satisfactory to
Buyer. The cost to obtain such title insurance and surveys shall be borne by
Seller. At the request of Buyer, Seller shall exercise commercially reasonable
efforts to (a) remove any Title Defect, or (b) with the consent of Buyer, cause
the title company issuing the title insurance to commit to insure over each such
Title Defect prior to Closing. If a Title Defect cannot be removed prior to
Closing or the title company does not commit to insure over such Title Defect
prior to Closing, and if acceptable to Buyer in the exercise of its reasonable
discretion, at the Closing, the Purchase Price will be reduced by the dollar
amount of the expense, as determined by Buyer in good faith, estimated to be
incurred by Buyer to remove such Title Defect. The term "Title Defect" means any
Lien which prevents access to or which could prevent or impede the use or
operation of the Real Property for the purposes for which it is currently used
or operated by Seller.
Section 4.7. Buyer shall be responsible for payment of sales taxes
required to be paid by the State of Maryland in connection with the transfer of
title from Seller to Buyer of the tangible personal property included in the
Acquired Assets.
ARTICLE V
Representations and Warranties of Seller
Section 5.1 Seller represents and warrants to Buyer that as of the Closing
Date:
(a) Organization. Seller is a corporation duly formed, validly
existing and in good standing under the laws of the State of Maryland and
qualified to conduct the Business in all jurisdictions in which the Business is
currently being conducted.
(b) Authority. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and the compliance by
Seller with the terms of this Agreement do not and will not conflict with or
result in a breach of any terms of, or constitute a default under, the Articles
of Incorporation or Bylaws of Seller, or any instruments or other agreement to
which Seller is a party or by which Seller is bound. This Agreement constitutes
a valid obligation of Seller enforceable against Seller in accordance with its
terms except as limited by bankruptcy, insolvency, reorganization or other such
laws concerning the rights of creditors.
(c) Title to Acquired Assets. At Closing, title to all Acquired
Assets shall be good and marketable, free and clear of all Liens. The parties
agree that Buyer shall not assume any monetary Lien relating to any Acquired
Asset.
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(d) Real Property. Schedule 5.1(d) contains complete and accurate
descriptions of the Real Property included in the Acquired Assets. Except as
otherwise disclosed on Schedule 5.1(d), Seller holds fee simple title to the
Real Property disclosed as being owned by Seller, and the valid and enforceable
right to use and possess such Real Property. All Real Property (including the
improvements thereon) (i) is in usable condition, (ii) is available to Seller
for immediate use in the conduct of the Business, and (iii) complies in all
material respects with all applicable building or zoning codes and the
regulations of any Governmental Authority having jurisdiction except for such
noncompliance as would not have a material adverse effect on the operation of
the Business at the Real Property.
(e) Financial Statements. Except as set forth on Schedule 5.1(e),
all financial statements, balance sheets and other financial information
delivered by Seller to Buyer are true and accurate and have been prepared in
accordance with GAAP, applied on a consistent basis.
(f) Tax Matters. All tax returns and all similar filings required to
be filed on or before the Closing Date with respect to any tax obligation of
Seller have been timely filed with the appropriate governmental agencies in all
jurisdictions in which such tax returns are required to be filed, and all such
tax returns correctly reflect the liability of Seller for taxes during the
periods and the events covered by these tax returns. Further, all taxes payable
with respect to these tax returns will have been paid in full prior to the
Closing Date or an adequate accrual in accordance with GAAP shall have been
provided with respect to these taxes. No deficiency in respect to any taxes,
which have been assessed against Seller, remains unpaid and there are no
unassessed tax deficiencies or any audits or investigations pending or
threatened against it with respect to any taxes. For the purposes of this
Agreement, the term "taxes" means taxes, duties, assessments, fees or levies,
together with any interest, penalties and additions to tax, imposed by any
taxing authority, wherever located (i.e. whether federal, state, local,
municipal or foreign), including without limitation all net income, gross
income, gross receipts, net receipts, sales, use, transfer, franchise,
privilege, profits, social security, disability, withholding, payroll,
unemployment, employment, excise, severance, real property, windfall profits,
value added, ad valorem, occupation or any other similar governmental charge or
imposition.
(g) No Default Under Business Contracts. Seller is not in material
default under any of the Business Contracts.
(h) Permits. Seller has all permits necessary for or customary in
connection with the operation of the Business. Seller has delivered to Buyer an
accurate list and summary description as of the date of this Agreement, of all
permits, entitlements, fuel permits, licenses, franchises and other
certificates, owned or held by Seller, to the extent such relate to the Business
or operation thereof, and all of which are now valid, in good standing and in
full force and effect. All such permits, entitlements, fuel permits, licenses,
franchises and certificates required by law have been obtained, are in good
standing and are adequate for the operation of the Business. No third parties
have asserted claims against Seller alleging that any of such permits, titles,
fuel permits, licenses, franchises and other certificates infringe on the rights
of said third parties.
(i) Applicable Laws; Compliance. Seller is not in default (i) under
any
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applicable federal, state or local laws, ordinances or regulations (including,
but not limited to all environmental, health and safety laws and the Americans
with Disabilities Act) or (ii) under any order of any court or governmental
administrative body having jurisdiction over Seller, the Real Property, or any
related operations or activities. Further, there are no claims, actions, suits
or proceedings, pending or threatened, against or affecting Seller, the Acquired
Assets or the Business at law or in equity, or before or by any administrative
body having jurisdiction; no notice of any claim, action, suit or proceeding,
whether pending or threatened, has been received; and to the best of Seller's
knowledge, there are no facts or circumstances which would give rise to the
same.
(j) Litigation. Except as set forth on the attached Schedule 5.1(j),
Seller is not currently a party to, nor has been threatened with any lawsuits,
actions or investigations which would adversely affect the Acquired Assets.
(k) Employee Benefit Plans. Except as set forth in the immediately
succeeding sentence, Seller (i) does not now, and has not in the past,
maintained, contributed to or been required to contribute to any "employee
benefit plan" (as such term is defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or any profit
sharing, deferred compensation, bonus, retirement, severance, health, welfare or
incentive plan or arrangement (ii) is not required to contribute to and has no
withdrawal liability with respect to any "multiemployer plan" as defined in
Section 414(f) of the Code or ERISA section 3(37) or 4001(a)(3), (iii) does not
now, and has not in the past, maintained, contributed to or been required to
contribute to any plan which is part of a multiple employer plan within the
remaining of Section 413(c) of the Code or ERISA sections 4063, 4064 and 4066
and (iv) does not own any assets that are subject to any Lien under ERISA
section 302(f) or Section 412(n) of the Code. The plans and arrangements
described in this Section 5.15(b) are referred to as "Employee Benefit Plans."
Set forth on Schedule 5.1(k) is a true, complete and correct list of all
Employee Benefit Plans that Seller has maintained or to which Seller is required
to contribute and Seller has provided or made available to Buyer true, complete
and correct copies of all such Employee Benefit Plans.
(l) Collective Bargaining Agreements. Except as set forth in the
attached Schedule 5.1(l), Seller is not a party to any collective bargaining
agreements. To the knowledge of Seller, there is no intention on the part of its
employees to seek union representation.
(m) Violation of Law and Contamination of Real Property. Seller is
not in violation of any laws, (including, but not limited to, environmental
laws) which violation might have a material adverse effect on the Business or
the Acquired Assets or the financial condition or operations of the Business or
the Acquired Assets, except as disclosed in Schedule 5.1(m) attached hereto and
none of the Real Property owned or leased by Seller is contaminated or requires
remediation of any kind as a result of being contaminated, except as disclosed
in Schedule 5.1(m). Seller does not have any knowledge of any past, present, or
future events, actions or plans that may interfere with or prevent full
compliance or continued full compliance with all laws, or that may be reasonably
expected to give rise to any common law or legal liability or otherwise form the
basis of any claim, action, demand, suit, proceeding, hearing,
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study or investigation related to the processing, recycling, reclamation,
distribution, use, treatment, storage, disposal, transport, release or
threatened release of any pollutant, contaminant, chemical or industrial or
solid or toxic waste or radioactive materials.
(n) No Violation of Other Agreements. The consummation of the
transactions contemplated by this Agreement and the operation of a business
enterprise by Buyer similar to the Business currently conducted by Seller will
not violate any agreement to which Seller or U S Liquids is a party, including,
but not limited to, existing covenants-not-to-compete.
Section 5.2 Disclaimer of Warranties. Except for the representations and
warranties of Seller expressly set forth in this Agreement, (i) Seller makes no
warranties, express or implied, with respect to the quality, design, physical
condition, fitness for a particular purpose or capacity of any of the Real
Property or the Acquired Assets; (ii) all such Acquired Assets are being
transferred to the Buyer "AS IS" and "WITH ALL FAULTS" in the condition existing
on the Closing Date; and (iii) SELLER EXPRESSLY DISCLAIMS AND NEGATES TO BUYER
AND ALL THIRD PARTIES ANY AND ALL WARRANTIES CONCERNING SUCH ACQUIRED ASSETS,
EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, OTHER THAN THOSE EXPRESSLY SET
FORTH IN THIS AGREEMENT, INCLUDING WITHOUT LIMITATION (A) ANY WARRANTY OF
QUALITY, CONDITION OR MERCHANTABILITY; (B) ANY WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE; OR (C) ANY WARRANTY OF HABITABILITY.
Section 5.3 Survival. Each of the representations and warranties set forth
in this Article V shall survive the Closing and the transfer of the Assets.
ARTICLE VI
Representations and Warranties of Buyer
Section 6.1. Buyer represents and warrants to Seller that as of the
Closing Date:
(a) Organization. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Maryland.
(b) Authorization. Buyer has all requisite power and authority to
enter into this Agreement, perform its respective obligations hereunder and
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement, the consummation of the transactions contemplated hereby and the
compliance by Buyer with the terms of this Agreement do not and will not
conflict with or result in a breach of any terms of, or constitute a default
under, Buyer's Articles of Incorporation or Bylaws or any other agreement or
instrument to which Buyer is a party or by which Buyer is bound. All necessary
corporate action has been taken by each Buyer with respect to the execution and
delivery of this Agreement, and this Agreement constitutes a valid obligation of
Buyer enforceable in accordance with its terms except as limited by bankruptcy,
insolvency, reorganization or other such laws concerning the rights of
creditors.
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Section 6.2. Disclaimer of Warranties. BUYER EXPRESSLY DISCLAIMS AND
NEGATES TO SELLER AND ALL THIRD PARTIES ANY AND ALL WARRANTIES CONCERNING SUCH
ACQUIRED ASSETS, EXPRESSED OR IMPLIED, BY STATUTE OR OTHERWISE, OTHER THAN
EXPRESSLY SET FORTH IN THIS AGREEMENT.
Section 6.3. Survival. Each of the representations and warranties set
forth in this Article VI shall survive the Closing and the transfer of the
Assets.
ARTICLE VII
Indemnification
Section 7.1 Indemnification by Seller. Seller agrees to defend, indemnify
and hold harmless Buyer, its officers, partners, managers, affiliates,
employees, agents, and their successors and assigns, from and against all
losses, claims, actions, causes of action, damages, liabilities, expenses and
other costs of any kind or amount whatsoever (including, without limitation,
reasonable attorneys' fees), whether equitable or legal, matured or contingent,
known or unknown, foreseen or unforeseen, ordinary or extraordinary, patent or
latent, which result, either before or after the date of this Agreement, from:
(a) Any inaccuracy in or breach of any representation or warranty
made by Seller in this Agreement;
(b) Any failure of Seller duly to perform and observe any term,
provision, covenant, agreement or condition under this Agreement;
(c) Any liability of Seller imposed upon Buyer arising out of the
conduct of the Business by the Seller prior to the Closing, except the Assumed
Liabilities;
(d) Any claim by a third party that, if true, would mean that a
condition for indemnification set forth in this Section 7.1 had been satisfied;
or,
(e) The inaccuracy of or a material misrepresentation in any
documents provided by Seller to Buyer during Buyer's due diligence investigation
of the Business.
Buyer shall be deemed to have suffered such loss, claim, action, cause of
action, damage, liability, expense or other cost, or to have paid or to have
become obligated to pay any sum on account, of, the matters referred to in
subparagraphs (a) - (e) of this Section 7.1 if the same shall be suffered, paid
or incurred by Buyer or any parent, subsidiary, Affiliate, or successor of
Buyer.
Section 7.2 Indemnification by Buyer. Buyer agrees to defend, indemnify
and hold harmless Seller, its officers, shareholders, directors, divisions,
subdivisions, affiliates, parent, employees, agents, successors, assigns and the
Assets from and against all losses, claims, actions, causes of action, damages,
liabilities, expenses and other costs of any kind or amount whatsoever
(including, without limitation, reasonable attorneys' fees), whether equitable
or legal, matured or contingent, known or unknown, foreseen or unforeseen,
ordinary or extraordinary, patent or
15
latent, which result, either before or after the date of this Agreement, from:
(a) Any inaccuracy in or breach of any representation or warranty
made by Buyer in this Agreement;
(b) Any failure of Buyer duly to perform and observe any term,
provision, covenant, agreement or condition under this Agreement;
(c) Any liability of Buyer imposed upon Seller arising out of the
conduct of the Business by the Buyer following the Closing, except for those
obligations which Seller retains under this Agreement; or,
(d) Any claim by a third party that, if true, would mean that a
condition for indemnification set forth in this Section 7.2 had been satisfied.
Seller shall be deemed to have suffered such loss, claim, action, cause of
action, damage, liability, expense or other cost, or to have paid or to have
become obligated to pay any sum on account, of, the matters referred to in
subparagraphs (a) - (d) of this Section 7.2 if the same shall be suffered, paid
or incurred by Seller or any parent, subsidiary, affiliate, or successor of
Seller. The amount of the loss, claim, action, cause of action, damage,
liability, expense or other cost deemed to be suffered, paid or incurred by
Seller shall be an amount equal to the loss, claim, action, cause of action,
damage, liability, expense or other cost suffered, and/or incurred by such
parent, subsidiary, affiliate, or successor.
Section 7.3 Procedure for Indemnification. Promptly after a party hereto
(hereinafter the "Indemnified Party") has received notice of or has knowledge of
any claim by a person not a party to this Agreement ("Third Person") or the
commencement of any action or proceeding by a Third Person, the Indemnified
Party shall, as a condition precedent to a claim with respect thereto being made
against any party obligated to provide indemnification pursuant to this
Agreement (hereinafter the "Indemnifying Party"), give the Indemnifying Party
written notice of such claim or the commencement of such action or proceeding
(the "Notice"). The Notice shall state the nature and the basis of such claim
and a reasonable estimate of the amount thereof. The Indemnifying Party, after
receipt of the Notice, shall defend and settle, at its own expense and by its
own counsel, each such matter so long as the Indemnifying Party pursues the same
diligently and in good faith and the claim does not involve injunction or
equitable relief or involve criminal penalties. The Indemnified Party shall
cooperate with the Indemnifying Party and its counsel in the defense thereof and
in any settlement thereof. Such cooperation shall include, but shall not be
limited to, furnishing the Indemnifying Party with any books, records or
information reasonably requested by the Indemnifying Party that are in the
Indemnified Party's possession or control. Notwithstanding the foregoing, the
Indemnified Party shall have the right to participate in any matter through
counsel of its own choosing at its own expense, provided that the Indemnifying
Party's counsel shall always be lead counsel and shall determine all litigation
and settlement steps, strategy and the like. After the Indemnifying Party has
received the Notice, the Indemnifying Party shall not be liable for any
additional legal expenses incurred by the Indemnified Party in connection with
any defense or settlement of such asserted liability, except
16
to the extent such participation is requested by the Indemnifying Party, in
which event the Indemnified Party shall be reimbursed by the Indemnifying Party
for reasonable additional legal expenses, out-of-pocket and allocable share of
employee compensation incurred in connection with such participation for any
employee whose participation is so requested. The foregoing notwithstanding, if
the Indemnifying Party fails diligently to defend any such matter to which the
Indemnified Party is entitled to indemnification hereunder or if the claim
involves criminal penalties, the Indemnified Party may undertake such defense
through counsel of its choice and at the Indemnifying Party's expense. In each
case where the Indemnifying Party is obligated to pay the costs and expenses of
the Indemnified Party, the Indemnifying Party shall pay the costs and expenses
of the Indemnified Party as such costs and expenses are incurred. If the
Indemnifying Party desires to accept a final and complete settlement of any such
Third Person claim and the Indemnified Party refuses to consent to such
settlement, then the Indemnifying Party's liability under this Section with
respect to such Third Person claim shall be limited to the amount so offered in
settlement by said Third Person and the Indemnified Party shall reimburse the
Indemnifying Party for any additional costs of defense which it subsequently
incurs with respect to such claim.
Section 7.4 Sole Remedy. Except in the case of fraud or intentional
misrepresentation, and except for violations of the non-competition agreement
referred to in Section 3.4(b), above, indemnification pursuant to this Article
VII is the sole and exclusive remedy of the parties after the Closing for
matters arising out of the representations, warranties, covenants and agreements
of Seller or Buyer set forth in this Agreement (without limiting the rights of
the parties under any other agreement).
ARTICLE VIII
General
Section 8.1 Further Assurance. From time to time after the Closing, each
of the parties will, without further consideration, execute and deliver such
other instruments of conveyance and transfer, and take such other action as the
other party may reasonably request: (i) to more effectively convey, transfer to
and vest in Buyer and to put Buyer in possession of the Assets to be transferred
hereunder, and in the case of contracts and rights, if any, which cannot be
transferred to Buyer effectively without the consents of third parties, to
endeavor to obtain such consents promptly, and if any be unobtainable, to use
reasonable efforts to provide Buyer with the benefits thereof in some other
manner; and (ii) to more effectively transfer to Seller the consideration
identified herein.
Section 8.2 Waiver. Except as otherwise provided herein, no delay of or
omission in the exercise of any right, power or remedy accruing to any party as
a result of any breach or default by any other party under this Agreement shall
impair any such right, power or remedy, nor shall it be construed as a waiver of
or acquiescence in any such breach or default, or of or in any similar breach or
default occurring later; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default occurring before or after that
waiver.
Section 8.3 Time of the Essence. Time is of the essence of this Agreement.
17
Section 8.4 Notice. All notices or communications required or permitted
under this Agreement shall be given in writing and served either by personal
delivery, overnight courier or by deposit in the United States mail and sent by
first class registered or certified mail, return receipt requested, postage
prepaid:
If to the Seller:
USL Environmental Services, Inc.
411 N. Sam Houston Parkway East, Suite 400
Houston, TX 77060
Attn: President
With a copy to:
Law Office of Gary Van Rooyan, P.C.
1201 Prince Street
Houston, Texas 77008
Attn: Gary J. Van Rooyan
If to the Buyer:
Perma-Fix of Maryland, Inc.
1940 N.W. 67th Place
Suite A
Gainesville, Florida 32653
Attn: Richard T. Kelecy
With a copy to:
Irwin H. Steinhorn, Esquire
Conner & Winters, P.C.
211 North Robinson, Suite 1700
Oklahoma City, OK 73102
Notice shall be deemed given and effective the day personally delivered,
the day after being sent by overnight courier, subject to signature
verification, and three days after deposit in the U.S. mail as provided above,
or when actually received, if earlier. Either party may change the address for
notices or communications to be given to it by written notice to the other party
given as provided in this Section.
Section 8.5 Entire Agreement. This Agreement, the Schedules hereto and the
other agreements referred to herein constitute the entire agreement and
understanding of the parties with respect to the subject matter hereof, and
supersede all prior and contemporaneous agreements, understandings,
representations and covenants, oral or written, relative to said
18
subject matter. Any recitals above, and any exhibits or schedules referred to
and/or attached to this Agreement, are incorporated by reference.
Section 8.6 Binding Effect; Assignment. This Agreement and the various
rights and obligations arising hereunder shall inure to the benefit of and be
binding upon the parties hereto and their respective executors, administrators,
heirs, legal representatives, successors and permitted assigns. The Buyer
entities may assign their rights in this Agreement, either jointly or severally,
to an entity either controlled by the assigning Buyer entity or controlled by
the principals of the assigning Buyer entity.
Section 8.7 Expenses of Transaction. Seller shall pay all costs and
expenses incurred by Seller in connection with this Agreement and the
transactions contemplated hereby and thereby, including, without limitation, the
fees and expenses of Seller's attorneys and accountants and will make all
necessary arrangements so that the Acquired Assets will not be charged with or
diminished by any such cost or expense. Buyer shall pay all costs and expenses
incurred by it in connection with this Agreement and the transactions
contemplated hereby and thereby, including without limitation, the fees and
expenses of its attorneys and accountants.
Section 8.8 Broker's Commission. Seller represents and warrants to Buyer
and Buyer represents and warrants to Seller that the warranting party has had no
dealing with any dealer, broker or agent so as to entitle such dealer, broker or
agent to a commission or fee in connection with the sale of the Acquired Assets
to Buyer. If for any reason any commission or fee shall become due, the party
dealing with such dealer, broker or agent shall pay such commission or fee and
agrees to indemnify and save the other party harmless from all claims for such
commission or fee and from all attorneys' fees, litigation costs and other
expense relating to such claim.
Section 8.9 Modification; Remedies Cumulative. This Agreement may not be
changed, amended, terminated, augmented, rescinded or otherwise altered, in
whole or in part, except by a writing executed by all of the parties hereto. No
right, remedy or election given by any term of this Agreement shall be deemed
exclusive but each shall be cumulative with all other rights, remedies and
elections available at law or in equity.
Section 8.10 Severability. In case any provision of this Agreement shall
be invalid, illegal or unenforceable, it shall, to the extent possible, be
modified in such manner as to be valid, legal and enforceable but so as to most
nearly retain the intent of the parties. If such modification is not possible,
such provision shall be severed from this Agreement. In either case the
validity, legality and enforceability of the remaining provisions of this
Agreement shall not in any way be affected or impaired thereby.
Section 8.11 Governing Law. This Agreement shall in all respects be
governed by and construed in accordance with the internal laws of the State of
Maryland, without giving effect to any choice or conflict of law provision or
rule (whether of the State of Maryland or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of
Maryland.
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Section 8.12 Counterparts and Facsimile Signatures. This Agreement may be
executed simultaneously in counterparts, each of which shall be deemed an
original, but all of which shall together constitute one and the same
instrument. A signature of a party transmitted by facsimile shall be as valid
and as binding on the signer as an original signature.
Section 8.13 Authority. Each party signing this Agreement on behalf of an
entity warrants that he or she has the authority to sign on behalf of said
entity.
Section 8.14 Certain Definitions. For purposes of this Agreement, in
addition to any other terms defined herein, the following terms will have their
respective meanings set forth below:
(a) "Affiliate" means a person that directly or indirectly, through
one or more intermediaries, controls, or is controlled by, or is under common
control with the person specified whether or not such is an Affiliate now or
becomes an Affiliate after the date hereof.
(b) "Control" means the possession, directly or indirectly, alone or
in concert with other, of the power to direct or cause the management of a
person, whether through the ownership of securities, by contract or otherwise.
(c) "Person" means any individual, partnership, joint venture,
corporation, trust, limited liability company, unincorporated organization,
government, or department or agency thereof or other entity.
Section 8.15 Rules of Construction. Unless otherwise expressly provided in
this Agreement: (i) accounting terms used in this Agreement shall have the
meaning ascribed to them under U.S. GAAP; (ii) words used in this Agreement,
regardless of the gender used, shall be deemed and construed to include any
other gender, masculine, feminine, or neuter, as the context requires; (iii) the
word "including" is not limiting, and the word "or" is not exclusive; (iv) the
capitalized term "Section" refers to sections of this Agreement; (v) references
to a particular Section include all subsections thereof; (vi) references to a
particular statute or regulation include all amendments thereto, rules and
regulations thereunder and any successor statute, rule or regulation, or
published clarifications or interpretations with respect thereto, in each case
as from time to time in effect; (vii) references to a Person include such
Person's successors and assigns to the extent not prohibited by this Agreement;
and (viii) references to a "day" or number of "days" shall be interpreted as a
reference to a calendar day or number of calendar days.
Section 8.16 Lease. Buyer agrees to use reasonable efforts to negotiate
(a) a new lease on its behalf with respect to the real property that is subject
to the lease described in the attached Schedule 8.16 (the "Leases") on terms and
conditions satisfactory to Buyer and, in connection therewith, (b) the release
of Seller by the landlord from all payment obligations arising under the Lease
which arise on and after the Closing Date. Buyer is not assuming any obligations
or liabilities under the Leases. Buyer acknowledges that Buyer will be occupying
the premises subject to the Leases immediately after Closing.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed effective as of the day and year first above written.
BUYER:
PERMA-FIX OF MARYLAND, INC.
By: /s/ Richard T. Kelecy
-----------------------
Name: Richard T. Kelecy
Title: Vice President
SELLER:
USL ENVIRONMENTAL SERVICES, INC.
By: /s/ James Jackson
-----------------------
Name: James Jackson
Title: Vice President
22