Exhibit 10 (u)
ASSET PURCHASE AGREEMENT
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AGREEMENT dated September 30, 1999 among BERKSHIRE SERVICE SOLUTIONS,
INC., a Massachusetts corporation principal place of business in
Pittsfield, Massachusetts ("BSS"), YANKEE PLUMBING & HEATING CO., INC., a
Massachusetts corporation with a principal place of business in Pittsfield,
Massachusetts ("Yankee"), and KEVIN O. HARRINGTON of Pittsfield,
Massachusetts ("Harrington" or "Stockholder").
PRELIMINARY STATEMENT
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BSS is a wholly owned subsidiary of Berkshire Energy Resources, a
Massachusetts Business Trust, with a principal place of business in
Pittsfield, Massachusetts ("BER").
Yankee is engaged in the plumbing, heating and mechanical contracting
business in Berkshire County, Massachusetts with a place of business at 381
Tyler Street, Pittsfield, Massachusetts (the "Yankee Business").
Yankee and Harrington desire to sell to BSS, and BSS desires to
purchase from Yankee and Harrington, substantially all of the assets of the
Yankee Business and Harrington's goodwill, on the terms and subject to the
conditions set forth herein.
AGREEMENT
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IT IS THEREFORE AGREED AS FOLLOWS:
1. SALE OF ASSETS. At the Closing (as defined in Section 6),
Yankee shall sell to BSS, and BSS shall purchase from Yankee, for the
Purchase Price (defined in Section 4) the following assets of Yankee (the
"Purchased Assets"):
(a) all machinery and equipment ("Equipment"), including, without
limitation, the Equipment listed on Schedule 1 (a) attached hereto;
(b) all accounts receivable ("Accounts Receivable") listed on
Schedule 1 (b) attached hereto;
(c) all inventory ("Inventory") listed on Schedule 1 (c) attached
hereto;
(d) all customer lists of any type or description;
(e) all rights to the telephone numbers assigned to Yankee;
(f) the business name "Yankee";
(g) all of Yankee's contract rights under all contracts entered
into in connection with the Yankee Business (the "Yankee
Contracts") to the extent such rights are transferable;
(h) all customer work-in-process ("Work-in-Process") listed on
Schedule 1 (h) attached hereto;
(i) all vehicles utilized in the operation of the Yankee Business
listed on Schedule 1 (i) attached hereto;
(j) Corporate Goodwill; and,
(k) all other assets utilized in the operation of the Yankee
Business, excluding the Excluded Assets (defined in
Section 2).
2. EXCLUDED ASSETS. The Purchased Assets shall not include (a)
cash and cash equivalents such as prepaid insurance and (b)
those assets listed on Schedule 2, which includes one (1) 1999 Ford
Explorer, attached hereto (the "Excluded Assets").
3. INDEMNIFICATION OF LIABILITIES.
3.1 Yankee Indemnification. BSS shall not assume, and shall
have no obligation to pay, any liabilities or obligations of Yankee
or the Stockholder. Yankee and Stockholder shall execute the
Indemnification and Hold Harmless Agreement (the "Yankee
Indemnification") set forth on Exhibit 3.1, attached hereto.
3.2 Yankee Accounts Payable; Vehicle Loans. At the Closing,
Yankee shall cause to be paid in full the trade payables and vehicle
loans listed at Schedule 3.2 attached hereto and shall deliver to BSS
the motor vehicle titles assigned over to BSS immediately upon their
receipt from the secured lender. Yankee agrees to allow BSS to
utilize the vehicles subsequent to the Closing Date at no cost and
shall continue all insurance coverage at present levels. BSS shall
pay the cost of insurance premiums attributable to the post-closing
period. Provided Yankee has otherwise performed pursuant to this
Paragraph 3.2, BSS shall indemnify and hold Yankee harmless against
any uninsured claims arising out of BSS's use of the vehicles
subsequent to the Closing Date.
3.3 Yankee's Contracts. At the Closing, Yankee shall
execute the assignment of its outstanding contracts (the "Contract
Assignment") set forth at Exhibit 3.3 attached hereto.
4. PURCHASE PRICE; ALLOCATION OF PURCHASE PRICE.
4.1 Purchase Price. The purchase price for the Purchased
Assets (the "Purchase Price") shall be $228,700.00 (subject to
adjustment as set forth in Section 4.3) and
shall be paid at the Closing in cash, by certified or official bank
check payable to the order of Yankee or by wire transfer to Yankee of
immediately available funds to accounts designated by Yankee. The
Purchase Price is calculated as follows:
4.1.1 $200,000.00 less the reduction in inventory
($56,900.00 - $39,100.00) plus the 1998 accounts payable
balance ($46,500.00).
4.2 Purchase Price Allocation. The allocation of the Purchase
Price (the "Purchase Price Allocation") shall be as follows, subject
to adjustment as set forth in Section 4.3:
4.3.1.1 Adjustments:
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Motor Vehicles $ 85,000.00
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Equipment $ 36,400.00
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Accounts Receivable $ 48,200.00+$6,800.00=$55,000.00
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Inventory $ 39,100.00
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Goodwill $ 20,000.00
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Purchase Price $228,700.00+$6,800.00=$235,500.00
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To the extent permitted by law, the parties shall not take any position on
any income tax returns or before any governmental agency charged with the
collection of any tax, or in any judicial proceeding relating thereto, that
shall be inconsistent with the allocation of the Purchase Price set forth
in this Section 4.2.
4.3 Adjustment of the Purchase Price and Purchase Price
Allocation.
4.3.1 The Purchase Price is predicated in part on the
value of Accounts Receivable, Equipment, Inventory and Work-in-
Process. At Closing, the following adjustment shall be made to
the Purchase Price:
4.3.1.1 As of the Closing Date (as defined in
Section 6), if the good and collectible Accounts
Receivable shall exceed $48,200.00, the amount of such
excess of $6,800 shall be added to the Purchase Price.
If the Accounts Receivable shall be less than $48,200.00,
the amount of such deficit shall be deducted from the
Purchase Price. For purposes of this Section 4.3.1.1,
"good and collectible" Accounts Receivable shall mean
accounts which shall be paid by the third party obligor
within six (6) months of the Closing Date.
4.3.1.2 Based upon the adjustment to the Purchase
Price made pursuant to this Section 4.3.1.1, the Purchase
Price Allocation shall be appropriately adjusted.
5. STOCKHOLDER GOODWILL. In addition to all other amounts payable
by BSS to Yankee, BSS shall pay Harrington, as consideration for his
personal goodwill the sum of $700,000.00 at the closing in cash, by
certified or official bank check payable to the order of Harrington or by
wire transfer to Harrington of immediately available funds to accounts
designated by Harrington.
6. CLOSING. The closing (the "Closing") of BSS's purchase of the
Purchased Assets and of Harrington's Goodwill shall take place on September
30, 1999 (the "Closing Date"), at 2:00 p.m. at the offices of Martin &
Oliveira, LLP, 100 North Street, Suite 301, Pittsfield, Massachusetts, or
at such other time and place as shall be mutually agreed upon by the
parties.
7. REPRESENTATIONS AND WARRANTIES BY YANKEE AND THE STOCKHOLDER.
Yankee and the Stockholder jointly and severally represent and warrant to
BSS as follows:
7.1. Organization. Yankee is a corporation duly organized,
validly existing and in good standing under the laws of the
Commonwealth of Massachusetts and is qualified to conduct its
business as it is presently conducted. Yankee has the corporate
power and is duly authorized to carry on its business where and as
now conducted and to own, lease, use and operate its properties as it
now does.
7.1.1 Stockholder represents that he conducts business
activities only through Yankee and that there are no other
affiliates or subsidiaries of Yankee.
7.1.2 The authorized equity securities of Yankee consist
of 5,000 shares no par common stock, of which 100 are issued
and outstanding (the "Shares"). Harrington is and will be on
the Closing Date the record and beneficial owner and holder of
the Shares, free and clear of all encumbrances.
7.2 Capacity. Yankee and the Stockholder have full authority
and capacity to enter into and to perform this Agreement in
accordance with its terms, and is not bound by or subject to any
contractual or other obligation that would be violated by the
execution or performance of this Agreement, and this Agreement is
valid and binding upon Yankee and the Stockholder in accordance with
its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditor's rights in general.
7.3 Financial Statements. Yankee has delivered to BSS
financial statements of Yankee for the fiscal years ended August 31,
1998 and August 31, 1999, prepared on a "compilation" basis by
Yankee's independent certified public accountants, including balance
sheet of Yankee as at such dates and statements of income and
retained earnings for the periods then ended, together with related
schedules (the "Yankee Financial Statements"). The Yankee Financial
Statements have been prepared in accordance with generally accepted
accounting principles applied on a basis consistent with prior
periods and fairly present the financial condition of Yankee as of
the respective dates thereof and the results of operations of Yankee
for the period then ended.
7.4 Absence of Certain Changes. Except as noted on the Yankee
Financial Statements or as set forth on Schedule 7.4 attached hereto,
from the date of the Yankee Financial Statements through the date
hereof, the business of Yankee has been operated in the ordinary
course and there has not been:
7.4.1 Any change in the assets, liabilities, business,
prospects, or condition (financial or otherwise) of Yankee
except changes in the ordinary course of business, none of
which shall have been materially adverse.
7.4.2 Any damage, destruction or loss (whether covered
by insurance or not) materially or adversely affecting the
business or properties of Yankee.
7.4.3 Any general salary increase made for the benefit
of the employees of Yankee or any specific increase in the
salary of any employee of Yankee.
7.4.4 Any unusual commitment or liability incurred, or
any unusual acquisitions or purchases made, by Yankee.
7.4.5 Any significant event or condition of any
character materially or adversely affecting the business or
prospects of Yankee.
7.5 Taxes. Yankee has filed all federal, state and local
income, employment and other tax returns required to be filed by it
on or before the dates on which such returns were due to be filed or
extensions to file such returns have been timely filed or granted and
have not expired. Except as set forth on Schedule 7.5 attached
hereto, Yankee has paid all taxes of any nature for which Yankee is
responsible, except for taxes which are not yet due and payable as of
the date hereof. The amounts established as provisions for taxes on
the Yankee Financial Statements are sufficient for the payment of all
accrued and unpaid federal, state and local income, employment and
other taxes of Yankee for all periods ending prior to August 31,
1999.Except as set forth on Schedule 7.5, (a) there are no claims
pending or threatened against Yankee for unpaid taxes, (b) there are
no outstanding waivers or agreements by Yankee for the extension of
the time for the assessment of any tax, (c) neither the Internal
Revenue Service nor any state agency, other than the Massachusetts
Department of Employment and Training, has conducted a tax audit or
examination of Yankee for the past three years, and (d) no
deficiencies in taxes or any other governmental charges have been
claimed, proposed or assessed against Yankee, and no facts exist or
have existed which would constitute a basis for assessment of
liability for any tax or other governmental charge which is not
reflected on the Yankee Financial Statements.
7.6 Title. Except as set forth on Schedule 7.6 attached
hereto, Yankee has, and as of the Closing shall be conveying to BSS,
good and marketable title to the Purchased Assets, free and clear of
all claims, liens or other encumbrances.
7.7 Personnel. Attached hereto as Schedule 7.7 is a true and
complete (a) list of all employees of Yankee which sets forth (i) the
full name, address and social security number of each employee, (ii)
each employee's date of hire, (iii) the method of payment (i.e.
hourly or salaried) and current rate of earnings for each employee
and (iv) any written agreement relating to such employee's employment
and (b) description of all employee benefit plans, programs or
arrangements, written or unwritten, to which Yankee is a party,
including, without limitation, any pension, profit sharing or other
retirement plans, any health and welfare benefit plans, and plans,
programs or arrangements for bonuses, vacation and other leaves,
severance and deferred compensation. Yankee has no collective
bargaining agreement with any of its employees.
7.8 Litigation; Etc. Except as set forth on Schedule 7.8
attached hereto, (a) there is no litigation, proceeding or
governmental investigation pending or, to the knowledge of Yankee or
the Stockholder, threatened, and there is no order, injunction or
decree outstanding against or relating to Yankee or the Stockholder,
the property, assets or business of Yankee or the Stockholder.
Neither Yankee nor the Stockholder is in violation of any applicable
law, regulation, ordinance, order, injunction or decree, or any other
requirement of any governmental body or court, relating to the
property or business of Yankee.
7.9 Leases, Contracts, Etc. Attached hereto as Schedule 7.9
are complete and accurate lists, descriptions and/or schedules of the
following:
7.9.1 With respect to the real property or personal
property leased by Yankee:
7.9.1.1 The location of such property;
7.9.1.2 The name of the landlord or lessor of each
such property which is leased, together with (a) the name
of the tenant or lessee, (b) the rental payable,
(c) the expiration date of existing leases and a
specification of all rights of renewal or purchase or
other rights existent upon expiration, and (d) a copy of
each existing lease.
7.9.2 All mortgages, pledges, deeds of trust, loan and
credit instruments, and agreements and similar instruments to
which Yankee is a party.
7.9.3To the extent not included in the foregoing, all
leases, purchase and sales orders, licenses, contracts,
agreements, commitments and understandings of any nature,
written or oral to which Yankee is a party in any capacity or
by which it is bound, and which cannot be terminated by Yankee
on less than 30 days' notice without liability or which involve
expenditure by Yankee of more than $10,000.00 (a "Contract").
With respect to each Contract :
7.9.3.1 Yankee is, and at all times since the
first day of the last completed fiscal year has been, in
full compliance with all applicable terms and
requirements of each Contract under which Yankee has or
had any obligation or liability or by which Yankee or any
of the assets owned or used by Yankee is or was bound.
7.9.3.2 No event has occurred or circumstances
exists that (with or without notice or lapse of time) may
contravene, conflict with, or result in a violation or
breach of, or give Yankee the right to declare a default
or exercise any remedy under, or to accelerate the
maturity or performance of, or to cancel, terminate, or
modify, any Contract.
7.9.3.3 Yankee has not given to or received from
any other party, at any time since the first day of the
last completed fiscal year of Yankee, any notice or other
communication (whether oral or written) regarding any
actual, alleged, possible, or potential violation or
breach of, or default under, any Contract.
7.10 Accuracy of Representations. All statements
contained in any exhibit, certificate or other document
delivered by or on behalf of Yankee or Stockholder pursuant to
this Agreement or in connection with the transactions
contemplated hereby shall be deemed representations and
warranties hereunder by Yankee and Stockholder. No
representation or warranty by Yankee or Stockholder in this
Agreement or in any exhibit, certificate or other document
delivered or to be delivered by Yankee or Stockholder pursuant
to this Agreement or in connection with the transactions
contemplated hereby contains or will contain any untrue
statement of a material fact, or omits or will omit to state a
material fact necessary to make the statements contained
therein not misleading.
7.11 Condition and Sufficiency of Assets. The Motor Vehicles
and Equipment of Yankee listed on Schedule 1 (a) and Schedule 1 (i)
are in good operating condition and repair, and is adequate for the
uses to which they are being put, and none of such Motor Vehicles and
Equipment are in need of maintenance or repairs except for ordinary,
routine maintenance and repairs that are not material in nature or
cost. Motor Vehicles and Equipment of Yankee are sufficient for the
continued conduct of Yankee's business after the Closing in
substantially the same manner as conducted prior to the Closing.
7.12 Accounts Receivable. All accounts receivable of Yankee
that are listed on Schedule 1 (b) and all unbilled Work-In-Progress
that is listed on Schedule 1 (h) as of the Closing Date
(collectively, the "Accounts Receivable") represent or will represent
valid obligations arising from services actually performed in the
ordinary course of business. Unless paid prior to the Closing Date,
the Accounts Receivable are or will be as of the Closing Date current
and collectible. Each of the Accounts Receivable either has been or
will be collected in full, without any set-off, within six (6) months
after the day on which it first becomes due and payable. There is no
contest, claim, or right of set-off, other than returns in the
ordinary course of business, under any contract with any obligor of
an Accounts Receivable relating to the amount or validity of such
Accounts Receivable. Stockholder agrees to reimburse BSS for any
accounts receivable not collected by BSS within six (6) months of the
Closing Date provided BSS assigns to Stockholder its contractual
right to collect said accounts.
7.13 Inventory. BSS acknowledges that it has inspected
Yankee's inventory and that Yankee makes no representations as to the
quantity or quality of its present inventory on hand.
7.14 No Undisclosed Liabilities. Yankee has no liabilities or
obligations of any nature (whether known or unknown and whether
absolute, accrued, contingent, or otherwise) except for liabilities
or obligations reflected or reserved against in the Yankee Financial
Statements. Yankee and Stockholder represent and warrant that they
shall promptly pay, as of the Closing, all liabilities of Yankee.
8. REPRESENTATIONS AND WARRANTIES BY BSS. BSS represents and
warrants to Yankee and Stockholder as follows:
8.1 Organization. BSS is a wholly owned subsidiary of BER,
which is a Massachusetts Business Trust, and is a Massachusetts
corporation duly organized, validly existing and in good standing
under the laws of Massachusetts and is qualified to conduct its
business as it is presently conducted. BSS has the requisite power
and is duly authorized to carry on its business where and as now
conducted and to own, lease, use and operate its properties as it now
does.
8.2 Capacity. BSS has full authority and capacity to enter
into and to perform this Agreement in accordance with its terms, and
is not bound by or subject to any contractual or other obligation
that would be violated by the execution or performance of this
Agreement, and this Agreement is valid and binding upon BSS in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditor's rights in
general.
8.3 Litigation; Etc. Except as set forth on Schedule 8.3
attached hereto, (a) there is no litigation, proceeding or
governmental investigation pending or to the knowledge of BSS,
threatened, and there is no order, injunction or decree outstanding
against or relating to BSS or the property, assets or business of
BSS.
8.4 Accuracy of Representations. All statements contained in
any exhibit, schedule, certificate or other document delivered by or
on behalf of BSS pursuant to this Agreement or in connection with the
transactions contemplated hereby shall be deemed representations and
warranties hereunder by BSS. No representation or warranty by BSS in
this Agreement or in any exhibit, schedule, certificate or other
document delivered or to be delivered by BSS pursuant to this
Agreement or in connection with the transactions contemplated hereby
contains and will contain any untrue statement of a material fact, or
omits or will omit to state a material fact necessary to make the
statements contained therein not misleading.
9. EMPLOYMENT AGREEMENT. As of the Closing Date, the Stockholder
shall enter into an employment agreement with BSS, in the form of Exhibit
9-1 attached hereto (the "Employment Agreement").
10. LEASE AGREEMENT. As of the Closing Date, BSS shall enter into
the following agreement (the "Lease Agreement"):
10.1.1 Lease for premises located at 360 and 381 Tyler Street,
Pittsfield, Massachusetts, in the form of Exhibit 10-1 attached
hereto.
11. COVENANT NOT TO COMPETE. As of the Closing Date, the
Stockholder shall enter into an Employment Agreement which, in part,
contains a covenant not to compete with BSS, in the form of Exhibit 9-1
attached hereto.
12. CONDITIONS TO CLOSING; TERMINATION.
12.1 Conditions Precedent to Obligations of BSS. The Closing
and all obligations of BSS pursuant to this Agreement shall be
conditioned upon the following:
12.1.1 Representations and Warranties. All
representations and warranties of Yankee and Stockholder
contained in Section 7 shall be true in all material respects
as of the Closing Date and BSS shall
have received a confirmation from an executive officer of
Yankee, in form acceptable to BSS and its counsel, to that
effect.
12.1.2 No Material Changes. From the date hereof
through the Closing Date, the Yankee Business shall have been
operated in the ordinary course and there shall not have been:
12.1.2.1 Any change in the assets, liabilities,
business, prospects or condition (financial or otherwise)
of Yankee except changes in the ordinary course of
business, none of which shall have been materially
adverse.
12.1.2.2 Any damage, destruction or loss (whether
covered by insurance or not) materially or adversely
affecting the business or properties of Yankee.
12.1.2.3 Any general salary increase made for the
benefit of the employees of Yankee or any specific
increase in the salary of any employee of Yankee.
12.1.2.4 Any unusual commitment or liability
incurred, or any unusual acquisitions or purchases made,
by Yankee.
12.1.2.5 Any significant event or condition of any
character materially or adversely affecting the business
or prospects of Yankee.
12.1.3 Performance of Obligations. Yankee and
Stockholder shall have performed all of their obligations under
this Agreement required to be performed as of the Closing Date.
12.1.4 Consents and Approvals. All consents, waivers,
authorizations and approvals of any governmental authority,
domestic or foreign, or of any other person, entity or
organization shall have been obtained, and the transactions
contemplated hereby shall not conflict with or result in any
breach or violation of the terms and conditions of, or
constitute (or with notice or lapse of time, or both,
constitute) a default under applicable federal, state, local or
foreign statute, regulation, order, judgment or decree.
12.1.5 Due Diligence. BSS shall have been satisfied
with its "due diligence" examinations of Yankee pursuant to
Section 16.1.
12.1.6 Delivery of Documents. BSS shall deliver all
documents, certificates and any other instruments set forth in
Section 13.1.
12.2 Conditions Precedent to Obligations of Yankee and
Stockholder. The Closing and all obligations of Yankee and
Stockholder pursuant to this Agreement shall be conditioned upon the
following:
12.2.1 Representations and Warranties. All
representations and warranties of BSS contained in Section 8
shall be true in all material respects as of the Closing Date
and Yankee and Stockholder shall have received confirmation
from the Trustees of BER, in form acceptable to Yankee, the
Stockholder and their counsel, to that effect.
12.2.2 Performance and Obligations. BSS shall have
performed all of its obligations under this Agreement required
to be performed as of the Closing Date.
12.2.3 Consents and Approvals. All consents, waivers,
authorizations and approvals of any governmental authority,
domestic or foreign, or of any other person, entity or
organization shall have been obtained and the transactions
contemplated hereby shall not conflict with or result in any
breach or violation of the terms and conditions of, or
constitute (or with notice or lapse of time, or both,
constitute) a default under applicable
federal, state, local or foreign statute, regulation, order,
judgment or decree.
12.2.4 Delivery of Documents. Yankee and Stockholder
shall deliver all documents, certificates and any other
instruments set forth in Section 13.2.
12.3 Termination.
12.3.1 Termination by the Parties. This Agreement may
be terminated and the transactions contemplated hereby may be
abandoned prior to the Closing as follows:
12.3.1.1 At any time by the mutual written consent
of BSS, Yankee and Stockholder.
12.3.1.2 By notice from BSS to Yankee and
Stockholder if all of the conditions set forth in Section
12.1 shall not have been either (i) satisfied or (ii)
waived, on or prior to the Closing Date.
12.3.1.3 By notice from Yankee and Stockholder to
BSS if all of the conditions set forth in Section 12.2
shall not have been either (i) satisfied or (ii) waived,
on or prior to the Closing Date.
12.3.1.4 By notice from BSS, Yankee or Stockholder
to the others if for any reason the Closing shall not
have taken place on or before September 30, 1999;
provided, however, that any party may extend the closing
date up to and including October 15, 1999 after which
time this Agreement shall terminate.
12.3.2 Effect of Termination. If this Agreement shall
be terminated pursuant to Section 12.3.1, it shall become null
and void and of no further force or effect and no party to this
Agreement shall have any liability or further obligation to any
other party to this Agreement with respect to this Agreement or
the transactions contemplated hereby except as provided in
Section 12.3.3 and Section 18.11; provided, however, that no
termination of this Agreement pursuant to the provisions of
Section 12.3.1 shall relieve any party of liability for a
breach of any provision of this Agreement occurring prior to
such termination.
12.3.3 Return of Documents Upon Termination. In the
event of termination of this Agreement pursuant to Section
12.3.1, BSS, Yankee and Stockholder shall each return to the
other party any documents or copies thereof in possession of
such party furnished by the other party in connection with the
transactions contemplated by this Agreement.
13. DELIVERIES TO BE MADE AT CLOSING. At the Closing, BSS, Yankee
and Stockholder shall deliver to each other the documents, certificates and
other instruments set forth in this Section 13.
13.1 BSS's Deliveries. At or prior to the Closing, BSS shall
deliver to Yankee the following:
13.1.1 Trustee's Certificate. A copy of the resolutions
of the trustees of BER, certified as having been duly and
validly adopted and as being in full force and effect on the
Closing Date, authorizing the execution and delivery by BSS of
this Agreement, the other agreements and instruments to be
executed and delivered by BSS as provided herein, and the
performance by BSS of the transactions contemplated hereby.
13.1.2 BSS Clerk's Certificate. A copy of the
resolutions of the directors of BSS, certified by its corporate
clerk or assistant clerk as having been duly and validly
adopted and as being in full force and effect on the Closing
Date, authorizing the execution and delivery by BSS of the
Employment Agreement, the Lease Agreement and any other
agreements and instruments to be executed and delivered by BSS
as provided herein.
13.1.3 Incumbency Certificates. A certified incumbency
and signature certificate for the trustees of BER, and a
certified incumbency and signature certification for the
officers of BSS.
13.1.3 Certificates of Good Standing. Certificates of
Good Standing issued by the Massachusetts Secretary of State as
to the good standing of BER and BSS.
13.1.4 Opinion of BSS's Counsel. The written opinion of
counsel for BER and BSS satisfactory in form and substance to
Yankee, the Stockholder and counsel for Yankee and Stockholder
and substantially in the form of Exhibit 13.1.4 attached
hereto, dealing with the matters set forth in Exhibit 13.1.4
and such other matters as Yankee, the Stockholder and counsel
for Yankee and Stockholder may reasonably request.
13.1.5 Certificate of Directors. Certificate of the
Directors of BSS containing the confirmation described in
Section 12.2.1 that all representations and warranties of BSS
contained in Section 8 shall be true in all material respects
as of the Closing Date.
13.1.6 Employment Agreement. The Employment Agreement
executed by BSS.
13.1.7 Lease Agreement. The Lease Agreement executed
by BSS.
13.1.8 Other Documents. All such other documents,
certificates and instruments as Yankee, the Stockholder and
their counsel may reasonably request in connection with the
consummation of the transactions contemplated by this
Agreement.
13.2 Yankee's Deliveries. At or prior to the Closing,
Yankee shall deliver to BSS the following documents:
13.2.1 Corporate Resolutions. A copy of the resolutions
of the stockholder and directors of Yankee, certified by its
corporate clerk or assistant clerk as having been duly and
validly adopted and as being in full force and effect on the
Closing Date, authorizing the execution and delivery by Yankee
of this Agreement, the other agreements and instruments to be
executed and delivered by Yankee as provided herein, and the
performance by Yankee of the transactions contemplated hereby.
13.2.2 Incumbency Certificate. An incumbency and
signature certificate for the officers of Yankee certified by
the clerk or assistant clerk of Yankee.
13.2.3 Bill of Sale. A Bill of Sale, conveying all of
Yankee's right, title and interest in the Purchased Assets to
BSS.
13.2.4 Certificate of Corporate Good Standing. A
Certificate of Good Standing issued by the Massachusetts
Secretary of State as to the corporate good standing of Yankee.
13.2.5 Certificate of Executive Officer. The
Certificate of an Executive Officer of Yankee containing the
confirmation described in Section 12.1.1 that all
representations and warranties of Yankee and Stockholder
contained in Section 7 shall be true in all material respects
as of the Closing Date.
13.2.7 Opinion of Yankee's Counsel. The written opinion
of counsel for Yankee and Stockholder satisfactory in form and
substance to BSS and BSS's counsel and substantially in the
form of Exhibit 13.2.7 attached hereto, dealing with the
matters set forth in Exhibit 13.2.7 and such other matters as
BSS and BSS's counsel may reasonably request.
13.2.8 Employment Agreement. The Employment Agreement
executed by each of the Stockholder.
13.2.9 Lease Agreement. The Lease Agreement executed by
Harrington.
13.2.10 Assignment Agreement. The Assignment Agreement
executed by Yankee.
13.2.11 Indemnification Agreement. The Indemnification
Agreement executed by Yankee and the Stockholder.
13.2.12 Other Documents. All such other documents,
certificates and instruments as BSS and its counsel may
reasonably request in connection with the consummation of the
transactions contemplated by this Agreement.
14. EMPLOYEES. On the Closing Date, Yankee shall terminate all of
its employees currently employed in connection with the Yankee Business
(the "Employees") and BER and BSS shall cause hire the Employees for
substantially the same wages and under terms of employment, including
fringe benefits, similar to their present terms of employment as Employees-
At-Will.
15. INDEMNIFICATION.
15.1 Indemnification by Yankee. Yankee and Stockholder shall,
jointly and severally, indemnify, defend and hold BSS and its
officers, directors, stockholders, agents, employees,
representatives, successors and assigns (collectively, the "BSS
Indemnified Parties"), harmless from and against any and all damage,
loss, cost, obligation, claims, demands, assessments, judgments or
liability (whether based on contract, tort, product liability, strict
liability or otherwise), including taxes, and all expenses,
including, without limitation, interest, penalties and reasonable
attorneys' and accountants' fees and disbursements (collectively,
"Damages"), incurred by any of the BSS Indemnified Parties, resulting
from or in connection with any one or more of the following:
15.1.1 Any breach of any representation or warranty made
by Yankee or Stockholder in this Agreement.
15.1.2 Any failure to perform any covenant or agreement
made or undertaken by Yankee or Stockholder in this Agreement
or in any other agreement delivered to BSS pursuant to this
Agreement.
15.1.3 Any services provided by Yankee prior to the
Closing Date.
15.1.4 Any third party claim for brokerage of finder's
fees or commissions based on any agreement that may have been
made in connection with this transaction.
15.1.5 Any failure of Yankee to pay or discharge the
liabilities of Yankee.
Notwithstanding the foregoing, the BSS Indemnified
Parties shall not seek to recover Damages from Yankee or
Stockholder pursuant to Sections 15.1.1, 15.1.2 or 15.1.3 in an
aggregate amount of less than $5,000.00, provided that, if the
aggregate amount of Damages shall exceed $5,000.00, then this
indemnity shall apply only to the amount in excess of
$5,000.00. The obligations of Yankee and Stockholder under
Sections 15.1.1, 15.1.2 and 15.1.3 shall survive until December
31, 2001 and the obligations of Yankee and Stockholder under
Sections 15.1.4 and 15.1.5 shall survive indefinitely.
15.2 Indemnification by BSS. BSS shall indemnify, defend and
hold the Stockholder and Yankee and its officers, directors, agents,
employees, representatives, successors and assigns (collectively, the
"Yankee Indemnified Parties"), harmless from and against any and all
Damages incurred by any of the Yankee Indemnified Parties, resulting
from or in connection with any one or more of the following:
15.2.1 Any breach of any representation or warranty made
by BSS in this Agreement.
15.2.2 Any failure to perform any covenant or agreement
made or undertaken by BSS in this Agreement or in any other
agreement delivered to Yankee or Stockholder pursuant to this
Agreement.
Notwithstanding the foregoing, the Yankee Indemnified Parties
shall not seek to recover Damages from BSS pursuant to Sections
15.2.1 and 15.2.2 in an aggregate amount of less than $5,000.00,
provided that, if the aggregate amount of Damages shall exceed
$5,000.00, then this indemnity shall apply only to the amount in
excess of $5,000.00. The obligations of BSS under Sections 15.2.1
and 15.2.2 shall survive until December 31, 2001.
15.3 Effects of Insurance. If any party or parties who shall
have suffered Damages for which the other party or parties shall be
liable for indemnification pursuant to this Section 15 shall obtain
monetary recovery for such Damages under an insurance policy or from
any other third party, the amount of such monetary recovery shall be
deducted from the amount due from the indemnifying party or parties.
If an indemnified party's monetary recovery from a third party shall
be made after payment shall have been made by the indemnifying party
or parties, then the amount of such recovery shall be refunded to the
indemnifying party or parties, but only after and to the extent of
the amount of the recovery from such third party. An indemnified
party who shall have received a recovery for Damages arising from a
breach of a representation, warranty or covenant under this Agreement
which is subject to indemnification shall have no right to recover
twice for the same Damages under the indemnification provided in this
Agreement.
15.4 Effects of Taxes. The amount of any Damages for which
Indemnification shall be provided pursuant to this Section 15 shall
be reduced to take account of any tax benefit actually realized by
the indemnified party as a result of the deductibility of such
Damages. For purposes of this Agreement, an indemnified party shall
be deemed to have "actually realized" a net tax benefit to the extent
that the amount of taxes payable by such indemnified party shall be
reduced below the amount of taxes that such indemnified party would
have been required to pay but for the deductibility of such Damages.
15.5 Right of Set-Off. Upon notice to Yankee and Stockholder
specifying in reasonable detail the basis for such set-off, BSS may
set off any amount to which it may be entitled under Section 15.1 and
Section 7.12 against payments otherwise payable under the Employment
Agreement and against amounts otherwise payable under the Lease
Agreement. The exercise of such right of set-off by BSS in good
faith, whether or not ultimately determined to be justified, will not
constitute an event of default under the Employment Agreement or
under the Lease Agreement or a breach of this Agreement. Neither the
exercise of nor the failure to exercise such right of set-off will
constitute an election of remedies or limit BSS in any manner in the
enforcement of any other remedies that may be available to it.
16. DUE DILIGENCE.
16.1 BSS's Due Diligence Examination. During the period of
time ending September 30, 1999 (the "Due Diligence Period"), to the
extent not already delivered by Yankee, Yankee shall provide such
information concerning Yankee as BSS may request, including, without
limitation, the Articles of Organization of Yankee and any amendments
thereto, the By-Laws of Yankee, and all books, records, surveys,
accounting reports and other documents relating to Yankee and the
management and operation of the Yankee Business. Upon prior notice
to Yankee, BSS and its agents, attorneys, accountants, advisors,
appraisers, engineers, independent contractors and proposed credit
providers (collectively, "BSS's Agents") shall have the right during
the Due Diligence Period to (a) view, inspect and test the Purchased
Assets, the real estate on which the various offices of the Yankee
Business are located and their physical condition during regular
business hours and (b) interview the management and employees of
Yankee and Yankee's customers; provided, however, that BSS shall
request Yankee's prior approval (which shall not be unreasonably
withheld) of the persons to be interviewed and the estimated length
of interviews. All examinations, inquiries and investigations
conducted by BSS and BSS's Agents shall be conducted in such a manner
as to minimize the disruption of the Yankee Business to the extent
reasonably practicable.
16.2 Yankee's Due Diligence Examination. During the Due
Diligence Period, to the extent not already delivered by BSS, BSS
shall provide to Yankee a disclosure package consisting of copies of
BSS's employee benefit plans and policies.
17. PROFESSIONAL FEES. Each of BSS and Yankee shall bear the cost
of all fees, expenses and disbursements due its own attorneys, accountants
and appraisers.
18. MISCELLANEOUS PROVISIONS.
18.1 Severability. If any provision of this Agreement shall
be deemed by any court having jurisdiction thereon to be invalid or
unenforceable, the balance of this Agreement shall remain in effect;
if any provision of this Agreement shall be deemed by any such court
to be unenforceable because such provision shall be too broad in
scope, such provision shall be construed to be limited in scope to
the extent such court shall deem necessary to make it enforceable;
and if any provision shall be deemed inapplicable by any such court
to any person or circumstances, it shall nevertheless be construed to
apply to all other persons and circumstances.
18.2 Assignment. This Agreement and any rights granted
hereunder may not be assigned or otherwise transferred by any party
without the prior consent of the other parties.
18.3 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
heirs, executors, administrators, legal representatives, successors
and assigns but shall not be assignable except as set forth in
Section 18.2.
18.4 Entire Agreement. This Agreement contains a complete
statement of the undertakings between the parties with respect to its
subject matter, cannot be changed or terminated orally, and
supersedes all prior agreements and undertakings. There is no
representation not set forth in this Agreement (including the
Schedules and Exhibits hereto) which have been relied upon by the
parties. Notice. Any notice, approval, consent or other
communication under this Agreement shall be in writing and shall be
considered given when (1) delivered personally, or (2) mailed by
registered or certified mail, return receipt requested or (3)
transmitted by telecopy with a confirming copy sent by overnight mail
or courier service, return receipt requested, to the parties at the
addresses indicated below (or at such other address as a party may
specify by notice to the others pursuant hereto). Notice given by a
party's counsel shall be considered notice given by that party.
(a) If to BSS, to it at:
172 Hubbard Avenue
Pittsfield, MA 01201
Attention: Robert M. Allessio, President & COO
Telecopy No.: (413) 443-0546
(b) If to Yankee or the Stockholder, to them at:
381 Tyler Street
Pittsfield, MA 01201
Telecopy No.: (413) 499-7930
(c) In each case, with a copy to:
John J. Martin, Jr., Esquire
MARTIN & OLIVEIRA
100 North Street, Suite 301
Pittsfield, MA 01201
Telecopy No.: (413) 445-5883
David W. Murphy, Jr., Esquire
KATZ, MURPHY & GREENWALD
29 Wendell Avenue
Pittsfield, MA 01201
Telecopy No.: (413) 445-5888
18.6 Modifications. This Agreement may not be modified except
by a writing signed by all of the parties hereto.
18.7 Further Assurances. From time to time after the
Closing, each party shall, at the request of the other party, execute
and deliver such documents and take such actions as may be necessary
to implement the transactions contemplated by this Agreement.
18.8 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original and all
of which taken together shall constitute one and the same agreement.
18.9 Governing Law; Effect. This Agreement shall be governed
by and construed in accordance with the substantive law of the
Commonwealth of Massachusetts, without giving effect to the conflicts
or choice of law provisions of Massachusetts or any other
jurisdiction, and shall have the effect of a sealed instrument.
18.10 No Waiver. Each party hereto may, by written notice to
the other parties hereto: (a) extend the time for the performance of
any of the obligations or other actions of such other party under
this Agreement; (b) waive any inaccuracies in the representations,
warranties, conditions or covenants of such other party contained in
this Agreement; or (c) waive or modify performance of any of the
obligations of such other party under this Agreement. Except as
provided in the foregoing sentence, no waiver of the performance or
breach of, or default under, any condition or obligation hereof shall
be deemed to be a waiver of any other performance, or breach of, or
default under the same or any other condition or obligation of this
Agreement.
18.11 Confidentiality.
18.11.1 Confidential Information. In connection with
the transaction contemplated by this Agreement, BSS, Yankee and
Stockholder shall be exchanging certain confidential
information regarding their respective businesses, including
financial statements, reports, summaries of operations,
projections, customer lists and information, employee lists,
policy statements and other information relating to such
businesses (collectively, "Confidential Information").
Confidential Information shall include written and oral
statements, documents and materials relating to BSS, Yankee and
Stockholder that shall be divulged by BSS, Yankee and
Stockholder and their agents, attorneys, accountants and
advisors or that shall otherwise come into the possession of
BSS, Yankee and Stockholder, as the case may be. BSS, Yankee
and Stockholder shall maintain the Confidential Information of
the other party in strict confidence. Without the prior
written authorization of BSS, Yankee and Stockholder, as the
case may be, none of the Confidential Information shall be (a)
copied or (b) disclosed to any other party. The obligations of
the parties set forth in this Section 18.10.1 shall survive the
termination of this Agreement.
18.11.2 Confidentiality of Terms and Conditions. Each
party shall maintain confidential the terms and conditions of
this Agreement and not disclose any of such terms and
conditions to any third party without the prior written consent
of the other parties hereto.
18.12 Non-Solicitation. During the period commencing on the
date of this Agreement and ending on the Closing Date, Yankee shall
not permit or take any action to encourage, solicit, engage in
discussions or negotiations with, or provide any information to, any
person, firm, or other entity or group (other than BSS or its
representatives) concerning any merger, consolidation, sale of
substantial assets, purchase or sale of shares of capital stock or
other similar transaction involving Yankee.
18.13 Survival. This Agreement shall survive the Closing.
Signed and sealed on the date first written above.
BERKSHIRE SERVICE SOLUTIONS, INC.
By /s/ Robert M. Allessio
----------------------
Robert M. Allessio,
President and COO
YANKEE PLUMBING & HEATING CO., INC.
By /s/ Kevin O. Harrington
-----------------------
Kevin O. Harrington,
President
/s/ Kevin O. Harrington
-----------------------
Kevin O. Harrington,
Individually
SCHEDULE 1 (a)
- --------------
EQUIPMENT
---------
All furniture, fixtures and equipment at the premises presently
occupied by Yankee Plumbing & Heating Co., Inc. at 381 Tyler Street,
Pittsfield, Massachusetts, except the Excluded Assets, listed on Section 2.
SCHEDULE 1 (b)
- --------------
ACCOUNTS RECEIVABLE
-------------------
See attachment marked as 1 (b) and made a part hereof.
SCHEDULE 1 (c)
- --------------
INVENTORY
---------
See attachment marked as 1 (c) and made a part hereof.
SCHEDULE 1 (h)
- --------------
WORK-IN-PROCESS
---------------
See attachment marked as 1 (h) and made a part hereof.
SCHEDULE 1 (i)
- --------------
MOTOR VEHICLES
--------------
See attachment marked as 1 (i) and made a part hereof.
SCHEDULE 2
- ----------
EXCLUDED ASSETS
---------------
1. One (1) Sony lap top computer;
2. One (1) desk top computer;
3. One (1) oak desk with chair;
4. Two (2) oak file cabinets (one [1] 3 drawer cabinet and one [1] 2
drawer horizontal cabinet);
5. One (1) oak coat rack;
6. Two (2) wall clocks;
7. One (1) sign "Here you get your moneys worth";
8. Miscellaneous pictures in the office;
9. One (1) AM/FM receiver with speakers and tape deck; and,
10. 1999 Ford Explorer.
SCHEDULE 3.2
- ------------
ACCOUNTS PAYABLE
----------------
TO BE PAID AT CLOSING
---------------------
Vehicle loans to be paid at Closing--see Schedule 1 (i).
EXHIBIT 3.1
- -----------
FORM OF YANKEE INDEMNIFICAITON AGREEMENT
----------------------------------------
See attachment marked as 3.1 and made a part hereof.
EXHIBIT 3.3
- -----------
FORM OF ASSIGNMENT AGREEMENT
----------------------------
See attachment marked as 3.3 and made a part hereof.
SCHEDULE 7.4
- ------------
CHANGES IN THE ASSETS, LIABILITIES, BUSINESS,
---------------------------------------------
PROSPECTS OR CONDITION OF YANKEE NOT IN
---------------------------------------
THE ORDINARY COURSE OF BUSINESS
-------------------------------
None.
SCHEDULE 7.5
- ------------
YANKEE TAXES
------------
None.
SCHEDULE 7.6
- ------------
CLAIMS, LIENS OR OTHER ENCUMBRANCES
-----------------------------------
ON PURCHASED ASSETS
-------------------
None.
SCHEDULE 7.7
- ------------
YANKEE EMPLOYEES
----------------
See attachment marked as 7.7 and made a part hereof.
SCHEDULE 7.8
- ------------
YANKEE LITIGATION, ETC.
-----------------------
None.
SCHEDULE 7.9
- ------------
YANKEE LEASES, CONTRACTS, ETC.
------------------------------
Yankee leases Kevin O. Harrington's 1999 Ford Expedition from Ford,
and Yankee presently rents the Tyler Street premises on a month-to-month
basis, having no written lease.
SCHEDULE 8.3
- ------------
BSS LITIGATION, ETC.
--------------------
None.
EXHIBIT 9-1
- -----------
FORM OF EMPLOYMENT AGREEMENT WITH HARRINGTON
--------------------------------------------
EXHIBIT 10-1
- ------------
FORM OF 360 AND 381 TYLER STREET,
----------------------------------
PITTSFIELD, MASSACHUSETTS LEASE
-------------------------------
EXHIBIT 13.1.4
- --------------
OPINION OF COUNSEL FOR BER AND BSS
----------------------------------
See attachment marked 13.1.4 and made a part hereof.
EXHIBIT 13.2.3
- --------------
FORM OF BILL OF SALE
--------------------
EXHIBIT 13.2.7
- --------------
OPINION OF YANKEE'S COUNSEL
---------------------------
See attachment marked as 13.2.7 and made a part hereof.