PURCHASE AGREEMENT ("Agreement") entered into May 31,
1994 by and among DeBLOIS OIL COMPANY, a Rhode Island corporation
having a place of business at Colfax and Concord Streets,
Pawtucket, Rhode Island 02860 ("Seller") and PETROLEUM HEAT AND
POWER CO., INC., a Minnesota corporation having an office at 2187
Atlantic Street, Stamford, CT 06902 (sometimes referred to herein
as "Buyer"), ROBERT E. DeBLOIS, residing at 455 Narragansett Bay
Avenue, Warwick, RI 02889, CHARLES H. DeBLOIS, JR., residing at 6
Running Stream Road, Rehoboth, MA 02769, STEPHEN J. DeBLOIS,
residing at 7 Lee Ann Drive, Narragansett, RI 02882, ARTHUR J.
DeBLOIS, JR., residing at 61 Bagy Wrinkle Cove, Warren, RI 02885
and ARTHUR J. DeBLOIS, III, residing at 404 Prospect Street,
Seekonk, MA 02771 (collectively the "Shareholders").
1. Recitals. This Agreement is entered into with
--------
reference to the following facts:
1.1 Buyer desires to purchase from Seller, and
Seller desires to sell and to transfer to Buyer, substantially
all of the business operations and assets of Seller relating to
its (a) retail delivered home, commercial and industrial non-Bid
#2 fuel oil business, (b) retail non-Bid delivered kerosene for
home heating business (c) retail non-Bid delivered home,
commercial and industrial propane business and (d) sale,
installation and servicing of heating equipment and
airconditioning equipment business, except to properties, service
stations and convenience stores owned or operated by Seller or
its subsidiaries (collectively the "Business"). Seller is
selling to Buyer only the operations and assets of Seller
relating to the Business and
specifically identified herein and no other operations or assets,
including, without limitation any operations or assets relating
to the Excluded Business as hereinafter defined.
1.2 Seller is retaining all businesses conducted
by Seller or its subsidiaries other than the Business including
without limitation: (a) sale of all products on a wholesale
basis, (b) retail sale of propane from fixed locations, i.e.
filling operations, (c) sale of all products on a Bid basis other
than to Customers and (d) operation of gasoline stations and
convenience stores and sale of all automotive fuels, including
diesel, propane and such other products as may come into use as
such in the future (collectively the "Excluded Business").
2. Definitions. As used in this Agreement, the fol-
-----------
lowing terms shall have the following meanings:
2.1 "Customer" shall mean any person, firm or
corporation which has purchased at retail on a delivered non-Bid
basis for consumption and not for resale any #2 fuel oil, propane
or kerosene from the Business during the period beginning on
January 1, 1993 and ending on the date of the Closing.
2.2 "Customer Information" shall mean the names
and addresses of all Customers as of the Closing, together with
all related credit, service and delivery information in Seller's
possession or control.
2.3 "Customer List" shall mean all documentation
in Seller's possession or control containing Customer
Information.
2
2.4 "Active Customer" means a Customer who has
not terminated, nor has Seller any knowledge of the Customer's
intention to terminate or modify its normal business relationship
with Seller, and the Seller has not cancelled or modified, and
based upon facts known to the Seller, Seller does not intend to
cancel or modify, such relationship.
2.5 "Territory" means the State of Rhode Island
and the Towns of Uxbridge, Blackstone, Bellingham, Franklin,
Wrentham, Plainville, North Attleboro, Mansfield, Norton,
Attleboro, Seekonk, Rehoboth, Dighton, Swansea, and Somerset in
the Commonwealth of Massachusetts.
2.6 "Bid" means a sale of fuel oil, propane or
kerosene, to any consumer which has purchased or in the future
purchases pursuant to an agreement which provides a specific
price or pricing formula for a contractually required specific
period of time; provided, however, that sales described on
Exhibit 4.4(b) shall not be deemed Bid sales.
2.7 "C.O.D." means the Customer is required to
pay for deliveries of fuel oil, at or prior to the time of
delivery, but does not include budget plan customers.
2.8 "Goodwill" means the goodwill of the Business
including the tradenames ("Tradenames") and telephone numbers
used by the Business to service the Customers as set forth on
Exhibit 2.8.1.
2.9 "Net Dollar Sale" means gross sales less all
discounts, rebates, allowances, taxes and credits.
3
2.10 "Knowledge of Seller", "to Seller's
knowledge" and comparable terms used in this Agreement mean the
actual knowledge of Robert E. DeBlois, Charles H. DeBlois, Jr.,
Stephen J. DeBlois or Arthur J. DeBlois, III.
3. Sale and Purchase of the Assets.
-------------------------------
3.1 On the terms and subject to the provisions
contained herein, Seller agrees to sell and transfer to Buyer and
Buyer agrees to purchase from Seller, at the Closing, free and
clear of any and all liens and encumbrances and other charges,
except as set forth herein, those assets of Seller related to the
Business and specifically described in Paragraph 3.2 hereof.
3.2 The purchase price ("Purchase Price") for the
assets of Seller referred to in Paragraph 3.1 to be acquired by
Buyer (sometimes referred to herein collectively as the "Assets")
shall be determined and allocated as follows:
4
Description Purchase Price
----------- --------------
Customer List $ 10,000
Goodwill $ 10,327,000
Restrictive Covenant of Shareholders $ 1,250,000
Restrictive Covenant of Seller $ 750,000
The motor vehicles described on Exhibit $ 1,120,000
3.2.1 (the "Vehicles")
The real property described on Exhibit $ 1,058,000
3.2.2 ("Purchased Real Property")
Propane assets as described on Exhibit $ 1,556,000
------------
3.2.3 ("Propane Assets")
$ 16,071,000(1)
The burner and automotive service parts, To be determined
inventories of the Business as of the pursuant to para-
Closing (the "Service Parts") graph 3.3(a)
The liquid inventories of the Business To be determined
as of the Closing (the "Liquid pursuant to para-
Inventory") graph 3.3(b)2
To be determined
Miscellaneous assets of the Business set pursuant to para-
forth on Exhibit 3.2.4 ("Miscellaneous graph 3.3(c)
Assets")
________________
1 Seller reserves the right to delete from this transaction
kerosene delivered through central tanks and Buyer will receive a
credit of $.615 per gallon delivered by Seller to such Customers
during the 12 months ended May 31, 1994. If prior to September
30, 1994 Seller installs individual tanks for any person whose
deliveries were previously through central tanks and such person
desires to make a purchase of kerosene from Buyer, then Buyer
shall pay to Seller the amount of the credit Buyer received at
the closing with respect to such Customer.
2 Liquid Inventory not in Vehicles or at Purchased Real Property
conveyed to Buyer at the Closing, will be purchased when lifted
by Buyer which shall be within 10 days of Closing. Payment terms
are net, 10 days.
5
Buyer is assuming no obligations, liabilities or
commitments of Seller of any nature and description other than
the Assumed Liabilities (as defined in Paragraph 13.2).
3.3 (a) As of the close of business on the day
before the Closing, Buyer and Seller will together take a
physical inventory of the Service Parts and the purchase price
therefor will be the amount actually paid by Seller for the items
on hand as determined by Buyer and Seller and on a physical count
of the items actually present; provided, however, that an appro-
priate allowance shall be made for used or damaged items or items
unusable in the Business. If the Buyer and Seller cannot
establish the amount actually paid by Seller for any item, then
each shall designate its customary supplier of such item and the
purchase price shall be the average price normally paid by Buyer
and Seller for such items after the application of all discounts
normally available to the parties.
(b) As of the close of business on the day
before the Closing, Buyer and Seller will together measure the
number of gallons of Liquid Inventory owned by Seller. The
purchase price per gallon for the Liquid Inventory shall be the
prices actually paid by Seller based on its most recent invoices.
Notwithstanding the foregoing, Buyer shall not be required to
accept and pay for more than 300,000 gallons of #2 fuel oil,
25,000 gallons of propane and 15,000 gallons of kerosene.
(c) Prior to the Closing, the parties will
endeavor to agree upon the purchase price for the Miscellaneous
Assets. If the parties cannot agree, then each party shall
6
designate an appraiser of items of the type comprising the
Miscellaneous Assets to appraise them at their wholesale value.
The purchase price for each item shall be the average of the two
appraisals; provided, however, that (i) the total purchase price
shall not exceed $150,000 (ii) the Seller may elect to retain any
item and not sell it to Buyer hereunder and (iii) the failure for
any reason to determine the purchase price for the Miscellaneous
Assets prior to the Closing Date shall not delay the Closing.
3.4 The Purchase Price shall be reduced by
crediting the Buyer with the following amounts:
(1) The unearned portion of Customer
service contracts to be determined by multiplying the amount
billed on each contract by a fraction the numerator of which is
the number of unexpired months of the contract as of the Closing
and the denominator of which is the number of months of the full
contract term. A contract expiring before the 15th day of a
month shall be deemed to expire on the last day of the preceding
month and a contract expiring on or after the 15th day of a month
shall be deemed to expire on the last day of the month.
(2) All credit balances of Customers.
(3) Accrued employee benefits of those
employees of Seller to be hired by Buyer.
(4) Discounts and interest, if any,
earned but not yet paid.
3.5 The Purchase Price will be paid as follows:
(a) Upon execution of this Agreement, the
Buyer has deposited the sum of $1,500,000 with Messrs. Partridge,
7
Snow & Hahn, as escrow agents to be held pursuant to an escrow
agreement of even date (the "Escrow Agreement"). At the Closing
the escrow deposit will be paid to Seller in reduction of the
Purchase Price. If there is no Closing due to the Buyer's breach
or default the escrow deposit shall be paid to Seller as
liquidated damages in lieu of all other remedies available to
Seller and Buyer shall have no further liability to Seller
arising out of or relating to this Agreement. If there is no
closing for any other reason, the escrow deposit will be paid to
Buyer in accordance with the Escrow Agreement without prejudice
to any claim either party may have against the other.
(b) The balance of the Purchase Price shall
be paid by Buyer to Seller at the Closing by wire transfer.
4. Representations and Warranties of Seller.
----------------------------------------
To induce the Buyer to enter into this Agreement
and to consummate the transactions contemplated herein, Seller
hereby represents and warrants to Buyer, as follows:
4.1 Organization, Qualification, Etc.
--------------------------------
Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Rhode Island and has all requisite power and authority to own,
lease and operate its properties and to carry on the Business as
now being conducted.
4.2 Capital Stock, Options, Etc.
---------------------------
Intentionally deleted.
8
4.3 Liens, Compliance with Law, Etc.
-------------------------------
The execution, delivery and performance of
this Agreement by Seller and the consummation of the transactions
contemplated hereby have been duly authorized by all requisite
action, as required under applicable law, and no further
authorization will be necessary on the part of the Seller for the
execution, delivery, performance, or consummation of this Agree-
ment. Seller has the power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby.
Except for consents of Fleet National Bank and Citizens Trust
Company, the execution, delivery and performance of this
Agreement and the transactions contemplated hereby will not, with
or without the giving of notice and/or the passage of time,
conflict with, result in the breach or termination of any
provision of, constitute a default under, or result in the
creation of any lien, charge or encumbrance upon any of the
properties or assets of the Business pursuant to any charter, by-
law, indenture, mortgage, deed of trust or other agreement or
instrument to which Seller is a party or by which Seller, or its
assets or properties are bound, or, to the knowledge of Seller,
violate any provision of law applicable to Seller, except such
breaches, defaults, liens, charges, encumbrances and violations
as do not, either individually or in the aggregate, materially
and adversely affect the Assets or the Business or Seller's
ability to consummate the transactions contemplated hereby.
Except for compliance with the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 ("HSR Act"), no approval of, or filing
with, any Federal, state or local governmental
9
authority or administrative agency is necessary to authorize the
execution of this Agreement by Seller or Shareholders or the
consummation of the transactions contemplated hereby. This
Agreement constitutes the legal, valid and binding obligation of
Seller and Shareholders enforceable against Seller and
Shareholders in accordance with its terms.
4.4 Customer Information. With respect to the
--------------------
Customers:
(a) (i) On December 31, 1993, Seller had no
fewer than 17,373 Active Customers. As of the Closing the Seller
will have at least 16,510 Active Customers.
(ii) On December 31, 1993, at least
87% of the Active Customers were on Seller's automatic delivery
system; at least 97% of the Active Customers were residential
customers purchasing at an annual rate of less than 2,500 gallons
and no more than 2% of the Active Customers were purchasing on a
C.O.D. basis. The Customer Information includes the name and
address of each Customer.
(iii) At the Closing at least 98% of
the Customers will be located in the Territory.
(iv) During the 12 months ended
December 31, 1993, and the three months ended March 31, 1994, the
Seller sold at least 17,887,408 gallons of #2 fuel oil and
9,373,266 gallons of #2 fuel oil, respectively, to Customers.
The following tables accurately sets forth for each month listed
below the number of gallons of #2 fuel oil sold by Seller to
Retail Customers, Net Dollar Sales and the Posted Price of #2
fuel oil:
10
#2 FUEL OIL SALES TO RETAIL CUSTOMERS
Gallons $ Posting(1)
-------- ----------- ----------
January 1, 1993 2,899,452 2,801,375 .999
February 3,015,163 2,912,097 .999
March 3,050,359 2,984,969 .999
April 1,460,700 1,404,529 .999
May 611,065 591,605 .999
June 455,443 429,826 .999
July 317,257 293,953 .959
August 346,507 319,195 .959
September 681,087 630,252 .959
October 996,982 940,429 .979
November 1,609,314 1,514,314 .979
December 2,444,079 2,260,954 .979
---------- ----------
Total 17,887,408 17,083,498
Gallons $ Posting(2)
-------- ----------- ----------
January 1994 3,601,229 3,339,563 .959
February 3,090,128 2,981,922 .979
March 2,681,909 2,580,022 .999
--------- ---------
Total 9,373,266 8,901,507
(v) During the 12 months ended December
31, 1993, Seller sold the following number of gallons of propane
and kerosene on a delivered basis at the Net Dollar Sales set
forth:
Product Gallons $
------- ------- -------
Propane 1,100,185 1,026,568
Kerosene 473,184 574,121
--------------------
1 Postings for different locations and Intramonth changes are set
forth on Exhibit 4.4(a).
2 Postings for different locations and Intramonth changes are set
forth on Exhibit 4.4(a).
11
As of December 31, 1993, Seller had 1,358 Active
Propane Customers and 1,130 Active Kerosene Customers.
(b) During the 12 months ended December 31,
1993, Seller sold no more than 280,000 gallons of delivered #2
fuel oil at a guaranteed or fixed price and no more than
11,850,000 gallons of delivered #2 fuel oil under an arrangement
which guaranteed a maximum price. All such existing arrangements
are described on Exhibit 4.4(b).
(c) Annexed as Exhibit 4.4(c) are Seller's
standard forms of customer service contract. As of December 31,
1993, Seller had no fewer than 15,586 Customers on burner service
contracts.
(d) For the 12 months ended December 31,
1993, Seller's Total Dollar Sales billed under service contracts,
other than under service contract and installation revenue were
as follows:
Service
Billed Under Other than Under
Service Contract Service Contract Installation
---------------- ---------------- ------------
$1,155,367 $440,083 $1,649,223
(e) Exhibit 4.4(e) is a true, complete and
accurate aging of the accounts receivable of the Customers as of
June 30, 1993, September 30, 1993, December 31, 1993 and March
31, 1994.
(f) During the 12 months ended December 31,
1993, Seller sold no more than 1,220,000 gallons of #2 fuel oil
to
12
Retail Customers who purchased more than 5,000 gallons. Exhibit
4.4(f) is a list of each Retail Customer who purchased more than
5,000 gallons of #2 fuel oil during the 12 months ended December
31, 1993 and all Retail Customers presently receiving a discount
of more than $.05 per gallon with their current discount.
For purposes of this subparagraph (f)
only, all delivery points with the same billing address shall be
considered one Customer. Except for the activities of the
Business and the Excluded Business, neither Seller, nor any
affiliate of Seller, sells any product or provides any service to
any of the Customers.
(g) Except as set forth on Exhibit 4.4(g),
Seller made no acquisitions of other fuel oil or propane
distributors within the past five years.
(h) Seller has not disclosed a material
portion of the Customer Information to any person or entity other
than its present computer company, except that certain of
Seller's employees have access to a copy of a list of the
Customers on the Seller's premises on a daily basis to perform
their required duties. No person other than Seller has
possession of a list of the names and addresses of a material
number of the Customers and all such lists shall be delivered to
Buyer at the Closing. Seller may retain such Customer
Information as is required to verify collection of its accounts
receivable, but shall deliver such Customers Information to Buyer
immediately following the Collection Period (as defined in
Article 16); provided, however, that Seller may retain Customer
Information which it is required to retain
13
under applicable law and Customer Information for Customers whose
accounts receivable remain uncollected and are not purchased by
Buyer at the end of the Collection Period.
(i) Except as set forth on Exhibit 4.4(i),
Seller does not subcontract the delivery of petroleum products,
the provision of installation or maintenance services or the
performance of any service normally furnished by employees, to
any independent contractor, nor has Seller terminated any such
relationship during the period of 24 months prior to the date of
this Agreement. Except as set forth on Exhibit 4.4(i), Seller
employed no subcontractor during the 12 months ended December 31,
1993 and to the knowledge of Seller and Shareholders all heating
equipment maintenance and installation services are provided to
Customers either directly by Seller or by a subcontractor listed
on Exhibit 4.4(i).
(j) Except as set forth on Exhibit 4.4(j),
Seller has no program or policy pursuant to which it provides
discounts, interest, free gallonage, free service, extensions of
credit or any other accommodation to Customers based upon volume
purchased, age, prompt payments, their participation in Seller's
budget program, or otherwise.
(k) Except as set forth on Exhibit 4.4(k),
Seller does not deliver any petroleum products to Customers
through a central tank or delivery system.
(l) Except as set forth on Exhibit 4.4(l),
to the knowledge of Seller, no present employee of Seller was a
shareholder of a fuel oil or propane distributor acquired by
Seller
14
since December 31, 1989 nor a dispatcher or salesman employed by
any such acquired fuel oil or propane distributor. Except as set
forth on Exhibit 4.4(l), to the knowledge of Seller no person who
was an owner, employee or independent contractor of Seller since
July 1, 1991 or any distributor acquired by Seller since July 1,
1989 solicited the patronage of more than 25 of the Customers in
any business which is, in whole or in part, competitive with the
Business.
(m) Seller does not sell any petroleum
products through cooperatives or buying groups or their members.
4.5 Personal Property.
-----------------
(a) Seller shall transfer to Buyer at the
Closing good and marketable title to all of the personal property
included in the Assets free and clear of all liens, leases,
encumbrances and security interests. Each item of tangible
personal property shall be delivered to the Buyer at the Closing
in its condition "as is" as of the date that the value of such
item is established for purposes of this Agreement; provided,
however, Seller represents that, to the knowledge of Seller and
Shareholders, such tangible personal property, is in substantial
conformity with all material applicable regulations, ordinances
and other laws, and in its present condition can be used for its
intended purpose, subject to routine maintenance and ordinary
wear and tear. All Vehicles shall be delivered at Closing with
all documentation (not including insurance) necessary so that
Buyer may obtain required permits, licenses and registrations.
15
(b) The only tradenames used by Seller in
connection with the Business are the Tradenames. There are no
adverse claims, liens or encumbrances upon or affecting the
Tradenames; Seller has not agreed to discontinue using the
Tradenames after a specified period; to the knowledge of Seller,
no other person is using any name similar to the Tradenames in
connection with the sale of petroleum products in the Territory;
Seller has the unrestricted right to use the Tradenames in
connection with the Business, and Seller has given no other party
the right to use the Tradenames in connection with the sale of
petroleum products.
(c) All Liquid Inventory will be (i) of a
quality sufficient to meet Providence Harbor specifications, (ii)
of a quality usable by Buyer and saleable at normal selling
prices in the normal course of the Business and (iii) located in
the Vehicles, the deep-water terminal operated by Providence
Terminal Associates II and the inland terminals located at the
Purchased Real Property.
4.6 Litigation.
----------
Except as set forth on Exhibit 4.6.1 and
except for claims that are fully insured, (i) there are no
material claims, actions, suits or proceedings before any
Federal, state, municipal or other court, governmental body or
arbitration tribunal, pending or to the knowledge of Seller
threatened against or affecting the Assets, the Business or the
transactions contemplated by this Agreement, (ii) there is no
existing order, decree or judgment of any court enjoining or
restraining Seller or
16
its officers or requiring any of them to take any action of any
kind affecting the subject matter of this transaction and (iii)
except for normal collection efforts, the Seller is not presently
engaged in or contemplating any legal action seeking recoveries
with respect to monies due to it or damages sustained by it. To
the knowledge of Seller, Seller has conducted its business so
that it has not violated any domestic (Federal, state or local)
law, statute, ordinance or regulation.
4.7 Labor Disputes.
--------------
(a) To the knowledge of Seller, (i) Seller
is in compliance with all Federal, state and local laws
respecting employment and employment practices, terms and condi-
tions of employment and wages and hours; (ii) Seller is not
engaged in any unfair labor practice; (iii) there is no unfair
labor practice charge or complaint against Seller pending before
the National Labor Relations Board.
(b) As of the date of the execution of this
Agreement, (i) there is no unionizing activity pending or, to the
knowledge of Seller, threatened against Seller, (ii) no labor
union represents nor to Seller's knowledge is any labor union
presently seeking to represent the employees of Seller nor has
any labor union sought such representation in the last five years
and (iii) no grievance arbitration proceeding is pending and to
Seller's knowledge no claim therefor has been asserted.
17
4.8 Employee Benefits.
-----------------
To and including the Closing Date, Seller has
made or will make, when due, all payments (whether arising by
operation of law, by contract or by past custom), due to
employees or to trusts or other funds or to any governmental
agency with respect to unemployment compensation benefits, social
security benefits, or any other benefits for employees of the
Seller. With respect to periods of employment prior to the
Closing all forms of compensation earned by employees whether
arising by operation of law, by contract or by past customs
including, but not limited to, vacation pay, holiday pay, sick
pay, profit sharing and bonuses have been accrued and paid, or,
will be credited by Seller to Buyer (and assumed by Buyer)
pursuant to Paragraph 3.4.
4.9 Employees.
---------
Seller has no knowledge as of the date of
execution of this Agreement that any employee of the Business,
intends to terminate or modify his employment relationship with
Seller as of the date hereof or that any such employee will
refuse employment by Buyer. Exhibit 4.9.1 contains a correct and
complete list of (i) all employees of the Business (including the
current basis and rate of compensation, bonuses paid in the last
fiscal year, salary review date and date of hire) and all
individuals whose employment by the Business was terminated since
January 1, 1992 and (ii) all commission salesmen of the Business
setting forth each of their bases and rates of compensation and
setting forth the gross salary and/or the commission paid or
payable to each of them in respect of calendar year 1993 and all
commission salesmen
18
terminated since January 1, 1992. Except as set forth on Exhibit
4.9.2, Seller does not maintain or make contributions to any
pension plan, profit sharing plan or any welfare benefit plan for
employees of the Business. Seller is not indebted to any
employee of the Business, in any amount whatsoever, other than
for current salaries or bonuses for services rendered, current
expense allowances, or unpaid commissions to retail salesmen or
other amounts to be allocated between Buyer and Seller pursuant
to paragraph 3.4.
4.10 Conflicting Interest.
--------------------
Except as set forth on Exhibit 4.10, neither
the Seller nor any corporation or other entity which is
controlling, controlled by or under common control with the
Seller, has any direct or indirect material interest in any
competitor or Customer of the Business. For purposes of this
Paragraph 4.10, an interest shall not be considered material
unless (i) it represents more than ten (10%) per cent of a class
of the outstanding securities or interests of such competitor or
customer or more than a five (5%) per cent interest in the
profits, losses or capital of such entity or (ii) the entity in
which Seller has such interest is directly or indirectly con-
trolled by the Seller.
4.11 Purchased Real Property.
-----------------------
Seller hereby represents and warrants to Buyer as
follows (except that each of the representations contained in
subparagraphs (a) through (o), are made only to Seller's
knowledge):
(a) Seller is the sole and exclusive owner
of, and has good, clear, record and marketable title to, the
Purchased
19
Real Property. Seller shall convey and Buyer shall accept title
to the Purchased Real Property in accordance with the terms of
this Agreement free and clear of all liens, leases and security
interests, subject only to the matters set forth on Exhibit 4.11
attached hereto and made a part hereof (collectively, the
"Permitted Exceptions"), and such other matters as do not
materially interfere with the use and occupancy of the Purchased
Real Property in connection with the Business.
(b) There is no claim, litigation or
proceeding pending threatened against or relating to the
Purchased Real Property, nor does Seller know or have reasonable
ground to know of any basis for any such claim, litigation or
proceeding.
(c) There are no pending or threatened
condemnation or eminent domain proceedings which would affect the
Purchased Real Property or any part thereof.
(d) All buildings, structures and
improvements on the Purchased Real Property are structurally
sound and in good repair and all mechanical equipment, machinery,
air conditioning, heating, plumbing and electrical systems in the
Purchased Real Property are in good operating condition, routine
maintenance and ordinary wear and tear excepted and the roofs and
basements are free of leaks.
(e) All curb cut and street opening permits
or licenses required for vehicular access to and from any part of
the Purchased Real Property to an adjoining public street have
been obtained and paid for in full.
20
(f) All streets, roads and avenues abutting
the Purchased Real Property are publicly dedicated, legally
placed and in legal operating use. All streets and alleys
located within the perimeter of the Purchased Real Property are
private and have not been dedicated to any public authority and
are included in this sale.
(g) All public utilities required for the
operation of the Purchased Real Property or any part thereof,
either enter the subject real property through adjoining public
streets or if they pass through adjoining private land do so in
accordance with valid public easements or private easements which
will inure to the benefit of Buyer. All of said public utilities
are installed and operating and all installations and connection
charged have been paid in full.
(h) There are no agreements, consent orders,
decrees, judgments, license or permit-conditions, or other
directives, issued by a municipal or other Federal, state or
local governmental or quasi-governmental department or agency
which relate to the future use of the Purchased Real Property or
require any change in the present condition of the Purchased Real
Property.
(i) There are no actions, suits, claims or
proceedings, pending or threatened, arising out of the condition
of the Purchased Real Property.
(j) All zoning, use, building, housing,
safety, fire and health approvals, and all permits and licenses
necessary to operate, occupy and use the Purchased Real Property
as used by Seller have been issued; are in full force and effect
and
21
Seller is in full compliance therewith. Seller has not taken any
action or made any improvements which would require amending,
modifying or supplementing the foregoing. Sellers use of the
Purchased Real Property is not in violation of applicable zoning.
(k) There are no outstanding requirements or
recommendations by a holder of a mortgage affecting the Purchased
Real Property or by any insurance company which issued a policy
with respect to the Purchased Real Property or by any board of
fire underwriters or other body exercising similar functions,
requiring or recommending any repairs or work to be done on the
Purchased Real Property.
(l) There are no pending real estate tax
protest proceedings affecting the Purchased Real Property, tax
exemptions or abatements affecting the real estate taxes assessed
against the Purchased Real Property or special assessments.
(m) Seller has not received notice from the
holder of any lien on the Purchased Real Property asserting that
a default or breach exists or event has occurred which, with the
giving of notice or passage of time or both, would constitute a
default or breach thereunder.
(n) Except as disclosed on Exhibit 4.11,
there are no outstanding contracts made by Seller for the
construction or repair of any improvements to the Purchased Real
Property or other contracts affecting the Purchased Real Property
such as, for example, but not by way of limitation, maintenance
and security agreements.
22
(o) All buildings, structures and improve-
ments, including, but not limited to, any driveways, garages, and
all means of access, are located completely within the boundary
lines of the Purchased Real Property and do not encroach upon or
under the property of any other person or entity and no building,
structure or improvement of any kind belonging to any other
person or entity other than Seller encroaches upon or under the
Purchased Real Property.
(p) The air rights over the Purchased Real
Property have not been leased, sold or otherwise transferred by
Seller.
(q) There are no tenants, licensees or other
third parties with claims or rights to possession, use or
occupancy of all or any portion of the Purchased Real Property.
4.12 Environmental Matters. (See Article 13 for
---------------------
definitions). To the knowledge of Seller, except as set forth in
Exhibit 4.12:
(a) The Seller is in full compliance with
all terms and conditions of all Environmental Permits relating to
the Business. All such Environmental Permits are in full force
and effect, and no appeal nor any other action is pending to
revoke any such Environmental Permit. Promptly following
execution of this Agreement, Seller shall provide Buyer with
copies of all such Environmental Permits.
(b) Seller is in compliance in all material
respects with all Environmental Laws with respect to the Business
23
including, without limitation, all restrictions, conditions,
standards, limitations, prohibitions, requirements, obligations,
schedules and timetables contained in the Environmental Laws or
contained in any regulation, code, plan, order, decree, judgment,
injunction, notice or demand letter issued, entered, promulgated
or approved thereunder and Seller does not have any fixed or
contingent liability for Cleanup (whether on or off-site) under
any of the foregoing.
(c) Promptly following execution of this
Agreement, Seller shall make available to Buyer true and complete
copies of all Environmental Information relating to the Business
and the Purchased Real Property.
(d) There is no civil, criminal or
administrative action, suit, demand, claim, hearing, notice of
violation, investigation, proceeding or notice pending relating
to the Business or the Purchased Real Property or to the know-
ledge of Seller, threatened against the Business or the Purchased
Real Property relating in any way to the Environmental Laws or
any regulation, code, plan, order, decree, judgment, injunction,
notice or demand letter issued, entered, promulgated or approved
thereunder.
(e) Seller has not and no other person has
Released, placed, stored, buried or dumped any Hazardous
Materials or any other wastes produced by, or resulting from, any
business, commercial, or industrial activities, operations, or
processes, on, beneath, or adjacent to the Purchased Real
Property or any property
24
formerly owned, operated or leased by Seller in connection with
the Business, except in accordance with applicable Environmental
Laws.
(f) No Release or Cleanup occurred at the
Purchased Real Property or elsewhere which could result in the
assertion or creation of a Lien on Seller or the Purchased Real
Property with any governmental body or agency with respect
thereto, nor has any such assertion of a Lien been made by any
governmental body or agency with respect thereto.
(g) Seller has not received any notice or
order from any governmental agency or private or public entity
advising it that it is responsible for or potentially
responsible for Damages or Cleanup or paying for the cost of
Cleanup of any Hazardous Materials or any other waste or
substance with respect to the Business or Purchased Real Property
and Seller has not entered into any agreements concerning such
Damages or Cleanup. Neither the Purchased Real Property nor any
property used in the operation of the Business formerly owned,
operated or leased by Seller since December 31, 1984 is on any
federal, state or local list of hazardous sites, such as the
Environmental Protection Agency's Comprehensive Response,
Compensation and Liability Information System List.
(h) The Purchased Real Property does not
contain: (a) underground storage tanks; (b) asbestos; (c)
equipment using Polychlorinated Biphenyls; (d) underground
injection wells; (e) septic tanks in which process wastewater or
any Hazardous Materials have been disposed by Seller; or (f)
solid waste management units, as the term is defined or used in
the
25
Resource Conservation and Recovery Act, as amended, 42 U.S.C. Sec.
6901 et seq.
------
4.13 Completeness of Representations
and Warranties.
-------------------------------
No representation or warranty of Seller in
this Agreement and no document, certificate or other instrument
or exhibit furnished to Buyer pursuant hereto contains any
materially untrue statement of material fact or omits any
material fact necessary in order to make the statements contained
therein not materially misleading.
5. Representations and Warranties of Buyer.
---------------------------------------
5.1 Buyer hereby represents and warrants to
Seller as follows:
5.2 Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Minnesota and has all requisite power and authority to own,
lease and operate its properties and to carry on its business as
now being conducted and to acquire the Assets and carry out its
obligations under the Agreement. Buyer is qualified to do
business and in good standing in the State of Rhode Island as a
foreign corporation.
5.3 The execution, delivery and performance of
this Agreement by Buyer and the consummation of the transactions
contemplated hereby, have been duly authorized by all requisite
action, as required under applicable law and no further
authorization will be necessary on the part of the Buyer for the
execution,
26
delivery, performance, or consummation of this Agreement. The
Buyer has the power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. The
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby by Buyer
will not, with or without the giving of notice and/or the passage
of time, conflict with, result in the breach or termination of
any provision, or constitute a default under, or result in the
creation of any lien, charge or encumbrance upon any of the
properties or assets of Buyer pursuant to any corporate charter,
by-law, indenture, mortgage, deed of trust or other agreement or
instrument to which Buyer is a party or by which Buyer or its
assets or properties is bound, or to the knowledge of Buyer,
violate any provision of law applicable to Buyer. Except for
compliance with the HSR Act, no approval of any Federal, state or
local governmental authority or administrative agency is
necessary to authorize the execution of this Agreement by Buyer
or the consummation of the transactions contemplated hereby.
This Agreement constitutes the legal, valid and binding
obligation of the Buyer, enforceable against Buyer in accordance
with its terms.
5.4 Buyer to Comply With Its Obligations.
------------------------------------
Buyer shall use its best efforts to comply
with all of its obligations under this Agreement and to fulfill
all of the conditions precedent to Seller's and Shareholders'
obligations.
27
6. Operations Pending Closing.
--------------------------
On and after the date hereof and until the
Closing, the Business shall be conducted in accordance with the
following procedures:
6.1 Seller shall conduct the Business in the
regular and ordinary course and Seller shall use its best efforts
to preserve for the Buyer the existing relationships of
customers, employees and others having business relations with
the Business and to maintain the competitive position of the
Business. In particular, but not in limitation of the foregoing,
Seller shall continue its normal degree day delivery schedule and
shall not deliver ahead of such normal schedule.
6.2 (a) During this period, Buyer and its repre-
sentatives may continue to make such reasonable investigations of
the Business and such reasonable investigations of its financial
condition as Buyer deems necessary or advisable to familiarize
itself with such properties and other matters relating thereto.
Seller shall permit authorized representatives of Buyer to have,
after the date hereof, reasonable access to the premises of the
Seller and its books and records relating to the day to day
operation of the Business and will furnish to Buyer such data and
information with respect to the Business as the Buyer may from
time to time reasonably request. The Buyer shall have the right
to request copies thereof and excerpts therefrom. Except to the
extent required under Paragraph 6.3, Seller shall not be obliged
to reveal the names or addresses of, or otherwise identify,
specific customers. All of Buyer's investigations hereunder
shall be
28
conducted so as not to interfere with Seller's normal business
activities. The Buyer agrees that should the Closing not occur,
for whatever reason, it will (i) return to Seller all documents
and records delivered to it in connection with this Agreement and
(ii) keep confidential and not divulge to third persons or use in
any competitive endeavor or for any other purpose any of the
information received from Seller in connection with this
Agreement, except as required by a governmental agency.
(b) (i) During this period, Buyer shall
have the right to conduct an environmental review of the
Purchased Real Property and the operations conducted or based at
the Purchased Real Property (the "Environmental Review"). The
Environmental Review shall be conducted by an environmental
engineer selected by the Buyer and reasonably acceptable to
Seller, all at the Buyer's expense. Prior to the time the
Environmental Review commences, the scope of the Environmental
Review shall be agreed upon between Seller's engineer and Buyer's
engineer, with a view towards a complete and comprehensive
review, and Buyer shall provide Seller certificates of insurance
identifying all workers' compensation, commercial general
liability, business automobile liability, and umbrella or excess
liability insurance policies maintained by Buyer's engineer or
any other agent of Buyer (including any subcontractors or
independent agents of Buyer's engineer), showing Seller as an
additional insured on those policies. Buyer shall give Seller
reasonable advance notice of any visits to the Purchased Real
Property in connection with the Environmental Review, including a
statement of the activities expected to be
29
conducted on each such visit, and will afford to Seller the
opportunity to have its representatives present. In addition,
prior to the commencement of the Environmental Review, Buyer's
engineer and Seller's engineer shall set forth in writing a
protocol for the taking of split samples by Seller's
representatives. Seller agrees to provide Buyer with the
results of any such samples taken after Seller's review of
Buyer's own sampling test results. Buyer agrees to provide to
Seller and Seller's attorney copies of any reports, including any
data generated during sampling, prepared for Buyer by its
employees, contractor or subcontractor(s) concerning the
Purchased Real Property, at the same time copies are delivered to
Buyer. The Environmental Review may include, but shall not be
limited to the following: a review of the land and improvements
at the Purchased Real Property; a review of the operations
conducted or based at the Purchased Real Property including, but
not limited to, the handling of petroleum products, solid wastes
and other Hazardous Materials; interviews of personnel working
for Seller and governmental authorities; testing of above ground
and underground tanks and pipes at the Purchased Real Property;
air monitoring tests; and sampling and analysis of soil, ground
water, surface water and building and construction materials
including samples obtained through the installation of monitoring
wells and any other tests necessary or advisable to ascertain the
existence of environmental conditions and Hazardous Materials.
Seller shall provide Buyer with access to all documentation in
its possession relating to environmental matters at or relating
to the Purchased Real Property
30
and operations conducted thereat or based thereon. All of
Buyer's investigations hereunder shall be conducted so as not to
materially interfere with Seller's normal business activities.
In the event borings are to be drilled or monitoring wells are to
be installed at any of the Purchased Real Property, an employee
of Seller, promptly designated by Seller, shall be present at
such Purchased Real Property at the time (noticed by Buyer in
advance) when the decision is made with respect to the locations
of the borings or monitoring wells, and such employee may object
to their placement prior to such drilling and/or installation if
in his reasonable opinion, such placement would materially
interfere with the conduct of the Business or would cause a
safety hazard. Buyer shall indemnify and hold harmless Seller
from any physical damage to the Purchased Real Property and any
claim, damage, loss, cost or expense (including reasonable
attorneys' fees) arising out of or caused by a material
interference with the Business or the negligence, willful or
intentional conduct of Buyer or its representatives in conducting
the Environmental Review.
(ii) Buyer and Seller recognize that
during the course of Environmental Review, Seller may disclose
either orally, in writing, or by inspection to Buyer or its
representatives confidential information regarding the affairs of
Seller, including but not limited to records of environmental
management and control. All such information disclosed by Seller
and all information, including samples, developed or obtained by
Buyer or its representatives in connection with or arising out of
the Environmental Review shall be deemed "Confidential
Information"
31
for purposes of this Agreement. Buyer will retain in confidence,
and will require its employees and agents to retain in
confidence, all Confidential Information unless required by law
to disclose to any governmental authority any Confidential
Information. In the event that Buyer concludes that Buyer or its
representatives are required by law to disclose any Confidential
Information to any governmental authority, Buyer shall notify
Seller of the basis for this conclusion prior to making any such
disclosure and provide Seller with a reasonable opportunity,
subject to the requirements of applicable law and regulation, to
make such disclosure on its own or to initiate appropriate action
to prevent disclosure if Seller concludes such disclosure is not
required by applicable law and regulation and Buyer insists on
disclosing such Confidential Information.
(iii) Upon completion of the
Environmental Review, Buyer's engineer shall prepare a written
report (the "Environmental Report") based on the Environmental
Review setting forth Buyer's engineer's conclusions on the
following issues: (i) whether there exists any unacceptable
environmental condition or instance of threatened or actual non-
compliance with Environmental Laws or Environmental Permits at,
or with respect to, the Purchased Real Property, the operations
conducted thereon or materials which are presently on or in, or
have migrated from, the Purchased Real Property, including an
actual or threatened Release of any Hazardous Materials (as
defined under Article 13), which would require remediation
compliance or investigatory efforts under the standards outlined
below ("Required
32
Remediation"); and (ii) a conservative estimate of the costs of
performing all Required Remediation. For Purchased Real Property
located in the Commonwealth of Massachusetts and the operations
conducted or based thereon, the standard of Required Remediation
shall be the standards, laws, regulations and permits established
or enforced by the Massachusetts Department of Environmental
Protection and applicable Environmental Laws and Environmental
Permits and, additionally, as to compliance matters those
established or enforced by the United States EPA. For Purchased
Real Property located in the State of Rhode Island, and the
operations conducted or based thereon, the standard of Required
Remediation shall be as follows:
(i) Required Remediation would include all efforts
necessary to satisfy all applicable Environmental
Laws and Environmental Permits and any
requirements or efforts that have been, or are,
identified by the State of Rhode Island Department
of Environmental Management ("RI DEM") in
correspondence or discussions with Buyer's
engineer or Seller at any time prior to the
Closing; and
(ii) Required Remediation at a Purchased Real Property
that is located wholly or partially in areas
currently classified by RI DEM as having "GAA"
groundwaters, "GA" groundwaters, or any
groundwaters of higher quality or equivalent
classification, would include all efforts
necessary
33
to ensure that any and all groundwaters and
surface waters either on, in, or emanating from,
or which have emanated from, the site, would
contain no substances in concentrations or amounts
exceeding or equal to:
1) Any remedial standards established for such
substances based on the numerical groundwater
quality standards, groundwater goals,
preventive action limits, pollutant
concentration levels, groundwater remediation
objectives, and standards applicable to the
site, as determined through a conservative
interpretation of the Rules and Regulations
for Groundwater Quality, Regulation DEM-GW-
01-92 Sec.Sec. 1, 2, 3, 6, 7, 8, 9, 10, 13, 14,
15, 16 and 17 (May 1992), ("RI DEM GA
Standards"); or
2) If there is currently no RI DEM GA Standard
established for any substance contained in
such groundwaters or surface waters, the more
stringent of either, a standard developed by
Buyer's and Seller's engineers, after
consultation with RI DEM and consideration of
all factors established as relevant to RI
DEM, or the most stringent groundwater
standard that would apply to remediating
groundwater at the site if it were subject to
investigatory and remedial action pursuant to
310 CMR
34
40.0000 ("Massachusetts Contingency Plan");
and
(iii) Required Remediation at a Purchased Real
Property that is located wholly or partially
in areas currently classified by RI DEM as
having "GAA" groundwaters, "GA" groundwaters,
or any groundwaters of higher quality or
equivalent classification, would include all
efforts necessary to ensure that any and all
soils, bedrock, building materials, and
debris either on, in, or emanating from, or
which have emanated from, the site, would
contain no substances in concentrations or
amounts exceeding or equal to:
1) Any RI DEM GA Standards; or
2) If there is currently no RI DEM GA Standard
established for any substance contained in
such materials, the more stringent of either,
a standard developed by Buyer's and Seller's
engineers, after consultation with RI DEM and
consideration of all factors established as
relevant to RI DEM, or the most stringent
soil standard that would apply to remediating
soils at the site if it were subject to
investigatory and remedial action pursuant to
the Massachusetts Contingency Plan; and
35
(iv) Required Remediation at a Purchased Real Property
that is located wholly or partially in areas
currently classified by RI DEM as having "GB" or
"GC" groundwaters, would include all efforts
necessary to ensure that any and all groundwaters
or surface waters either on, in, or emanating, or
which have emanated from, the site would contain
no substances in concentrations or amounts
exceeding or equal to:
1) Any remedial standards established for such
substances based on the numerical groundwater
quality standards, groundwater goals,
preventive action limits, pollutant
concentration levels, groundwater remediation
objectives, and standards applicable to the
site, as determined through a conservative
interpretation of the Rules and Regulations
for Groundwater Quality, Regulation DEM-GW-
01-92 Sec.Sec. 1, 2, 3, 6, 7, 8, 9, 10, 13, 14,
15, 16 and 17 (May 1992), ("RI DEM GB
Standards"); or
2) If there is currently no RI DEM GB Standard
established for any substance contained in
such groundwaters or surface waters, the more
stringent of either, a standard developed by
Buyer's and Seller's engineers, after
consultation with RI DEM and consideration of
all factors established as relevant to RI
DEM,
36
or the most stringent groundwater standard
that would apply to remediating groundwater
at the site if it were subject to
investigatory and remedial action pursuant to
the Massachusetts Contingency Plan; and
(v) Required Remediation at a Purchased Real Property
that is located wholly or partially in areas
currently classified by RI DEM as having "GB" or
"GC" groundwaters would include all efforts
necessary to ensure that any and all soils,
bedrock, building materials, and debris either on,
in, or emanating from, or which have emanated
from, the site, would contain no substances in
concentrations or amounts exceeding or equal to:
1) Any RI DEM GB Standards; or
2) If there is currently no RI DEM GB Standard
established for any substance contained in
such materials, the more stringent of either,
a standard developed by Buyer's and Seller's
engineers, after consultation with RI DEM and
consideration of all factors established as
relevant to RI DEM, or the most stringent
soil standard that would apply to remediating
soils at the site if it were subject to
investigatory and remedial action pursuant to
the Massachusetts Contingency Plan; and
37
(vi) Required Remediation would include all efforts
necessary to remove, and prevent the existence of,
any and all floating products or non-aqueous phase
liquids or chemical products in groundwaters,
surface waters, soils, bedrock, building
materials, and debris; and
(vii) Required Remediation would include all efforts
necessary to remove, or to encapsulate and
eliminate all conditions of, any and all friable
asbestos.
In preparing the Environmental Report, Buyer's
engineer shall exercise its reasonable judgment, using the degree
of skill and care exercised by reputable environmental
consultants in similar circumstances and employing recognized
environmental engineering practice and scientific principles. In
reaching its conclusions concerning the nature and scope of
Required Remediation and the costs of performing Required
Remediation, Buyer's engineer shall meet and consult with
Seller's engineer and to the extent reasonably deemed relevant to
a determination by applicable public authorities ("Applicable
Public Authorities") as to Required Remediation, shall take into
account all attendant facts and circumstances, including, without
limitation, present use of the site, use of neighboring sites,
ground water classification on the site, efficacy of available
remediation methods and technology, topography, hydrology,
proximity to private drinking water supply, likely threat to
public health and welfare and the environment, the
38
present or absence of standards promulgated by the Applicable
Public Authority, remediation actually required by the Applicable
Public Authority in the professional experience of such engineer,
and the results of discussions with representatives of the
Applicable Public Authority, to the extent Buyer's engineer
believes such discussions are necessary to enable such engineer
to make the judgments required of such engineer herein.
Notwithstanding any provision hereof to the contrary, all
discussions with any governmental agency, including without
limitation, the applicable public authority concerning any
environmental condition or instance of noncompliance with
Environmental Laws or Environmental Permits shall be on a
hypothetical basis without identification of the particular site
in question. In addition, Buyer's engineers shall be instructed
not to consider any potential future changes in existing
conditions except and only to the extent that they in their
professional judgment believe that any Applicable Public
Authority would consider such potential future changes. If
Seller's engineer does not agree with the conclusions concerning
Required Remediation and the estimated costs thereof set forth in
the Environmental Report, then Buyer's engineer and Seller's
engineer shall together designate a third engineer to determine
such Required Remediation and such estimated cost and the
determination of such third engineer shall be final and binding
on Buyer and Seller and shall be deemed the "Environmental
Report" for purposes of this Agreement.
39
(iv) The cost of Required Remediation,
if any, as determined by the foregoing process with respect to
each parcel of Purchased Real Property is referred to herein as
the "Maximum Remediation Amount" with respect to such Purchased
Real Property. If the Maximum Remediation Amount exceeds the
portion of the Purchase Price allocated to the affected Purchased
Real Property on Exhibit 3.2.2, Seller may elect to delete such
affected Purchased Real Property from this Agreement and the
Purchase Price shall be reduced by the amount of the Purchase
Price so allocated. If the Maximum Remediation Amount is less
than the portion of the Purchase Price allocated to the affected
Purchased Real Property on Exhibit 3.2.2, or if Seller is
permitted to delete any Purchased Real Property pursuant to the
immediately preceding sentence but elects to perform such
Required Remediation by giving Buyer notice, by the date of
Closing, of Seller's intent to perform such Required Remediation,
Seller shall have the obligation to perform the Required
Remediation identified for the particular Purchased Real
Property; provided, however, that Seller shall not be required to
spend more than the Maximum Remediation Amount allocated to any
particular Purchased Real Property for Required Remediation of
such Purchased Real Property. If Seller is permitted to and
elects not to perform Required Remediation and a Purchased Real
Property is deleted as provided herein, Buyer shall have the
option at the Closing to enter into a 12 month lease for such
Purchased Real Property not purchased, providing for (i) annual
rental equal to 11% of the portion of the Purchase Price
allocable to the Purchased Real Property subject to the lease,
(ii) Seller to pay real estate
40
taxes, but Buyer to pay real estate increases and (iii) Seller to
pay for structural repairs and Buyer to pay for normal, routine
maintenance and damage caused by Buyer ("Lease Terms"). If
Seller is required or has elected to undertake Required
Remediation, then at the Closing, Buyer shall enter into a 12
month lease for the affected Purchased Real Property on the Lease
Terms and shall deposit subject to the Escrow Agreement that
portion of the Purchase Price allocable to such Purchased Real
Property as set forth on Exhibit 3.2.2. If Seller is unable to
complete the Required Remediation of any Purchased Real Property
within 12 months of Closing, but Seller has been diligently
following the protocol established in the Environmental Report to
effect such Required Remediation, then the period to complete the
Required Remediation shall be extended for up to an additional 12
months, provided that Seller's engineer and Buyer's engineer
agree that it is reasonable to anticipate that such Required
Remediation may be completed within such additional 12 months;
and in such event the lease shall be extended on the Lease Terms
for an additional 12 months or, if sooner, the completion of
Required Remediation. At such time as Seller completes the
Required Remediation, either within the initial 12 month period
or, if the lease is extended as aforesaid, within the second 12
month period, Buyer shall purchase such Purchased Real Property
at the Purchase Price allocated to such Purchased Real Property.
Seller may discontinue the Required Remediation of any Purchased
Real Property at any time if the amount theretofore expended by
Seller in connection with Required Remediation of such Purchased
Real Property together with the
41
reasonably estimated cost of any remaining Required Remediation
exceeds the portion of the Purchase Price allocable to such
Purchased Real Property. If the lease is not extended after the
first 12 month period, or if Seller elects not to continue with
the Required Remediation of any affected Purchased Real Property
and gives Buyer notice of such election, Buyer has the option to
continue to lease such affected Purchased Real Property for an
additional year, subject to the same terms and conditions, to
allow Buyer to move its operations to a new facility. Payment of
the Purchase Price for any such Purchased Real Property shall be
made from the amounts held pursuant to the Escrow Agreement, with
Buyer being entitled to any income earned with respect thereto.
At such time as Buyer's obligation to buy any such Purchased Real
Property terminates, the amount placed subject to the Escrow
Agreement with respect to such Purchased Real Property (together
with interest thereon) shall be returned to Buyer.
(c) Seller agrees that any inquiry or
investigation made by Buyer pursuant to this Agreement shall not
in any way affect or lessen the representations and warranties
made by them in this Agreement or their survival of the Closing
to the extent provided for herein. In any action or proceeding
based upon the breach of any representation or warranty,
Shareholders and Seller hereby waive the defense that Buyer knew
or should have known the true facts or circumstances.
Notwithstanding the foregoing, if Seller discovers any facts
which disclose the inaccuracy or breach of any representations
and warranties made by Seller pursuant to this Agreement which
facts were unknown to
42
Seller at the time of execution of this Agreement and Seller
advises Buyer of such facts at least 3 days prior to the Closing
in the manner provided herein for the giving of notices, or if
any such facts are disclosed by the Environmental Review, whether
or not called to Buyer's attention by Seller, then Buyer may
elect to terminate this Agreement based upon the disclosure of
such facts or to close; however, in neither event will Buyer have
a claim against Seller based upon the existence of such facts.
6.3 So that Buyer will be in a position to inte-
grate the Customer information into Buyer's computer system
within 15 days from the execution of this Agreement Seller will
provide Buyer with a layout of Seller's master computer file
relating to the Customers and a computer tape of such master
files as of the most recent available date showing for 25
Customers all relevant service, delivery, and billing information
including (to the extent contained in such computer tape and
records): billing and delivery name and address, tank size, last
delivery date, degree day information, service contract type,
amount billed, inception date and expiration date on service
contract, amount due to Seller and, where applicable, the
Customer credit balance.
6.4 Seller shall transfer the telephone numbers
of the Business to the Buyer at the Closing.
6.5 The Seller shall give prompt notice to the
Buyer of (i) any notice of, or other communication received by
the Seller subsequent to the date of this Agreement and prior to
the Closing Date relating to, a default or event which with
notice or lapse of time or both would become a default, or which
would cause
43
any warranty or representation of the Seller to be untrue or
misleading in any material respect as of the date the same is
deemed given or made, under this Agreement, (ii) any notice or
other communication received by the Seller from any third party
alleging that the consent of such third party is or may be
required in connection with the transactions contemplated by this
Agreement, and (iii) any material adverse change in its business,
operations, prospects, earnings, assets or condition (financial
or otherwise).
6.6 Promptly after the execution hereof, Seller
and Buyer shall each prepare any and all documentation and supply
any and all information required by any governmental authority or
agency thereof to be filed by Buyer or Seller, as the case may
be, prior to conveying its interest in the Purchased Real
Property, if any, and shall timely make the necessary filings,
applications, etc. relating thereto. Buyer and Seller each
agrees to cooperate with the other in the completion, execution
and submission of any such filings, applications, etc.
(a) Following the execution of this
Agreement, Buyer, and its agents, contractors, engineers,
appraisers and other professionals qualified to inspect and
evaluate the structures located on the Purchased Real Property,
shall have the right to conduct a physical inspection of the
Purchased Real Property, at its own expense. In the event that
any substantial defects or weaknesses are discovered, including
but not limited to structural, roof, electrical, plumbing, hvac
and appliance defects, Buyer shall forward a copy of the
inspection report to Seller within five (5) days of its receipt
by Buyer and Seller, shall at its own cost and
44
expense either satisfactorily repair, replace or remedy any
defective condition prior to the Closing, or reduce the Purchase
Price by the amount reasonably estimated to repair, replace or
remedy the defective condition.
(b) Seller will as promptly as practicable
but no more than 10 days after the execution of this Agreement,
deliver to Buyer copies of the following, to the extent they
exist and are in Seller's possession or obtainable by Seller:
(i) the deeds and other instruments by
which Seller acquired the Purchased Real Property;
(ii) all title insurance policies,
opinions and abstracts affecting the Purchased Real Property, all
documents affecting title to the Purchased Real Property,
including but not limited to all instruments creating or
effecting a lien, and all surveys for the Purchased Real
Property;
(iii) all inspection, engineering,
soil or architectural notices, studies, reports and plans and
specifications that relate to the physical condition or operation
of the Purchased Real Property or any buildings, plants and
structures located thereon;
(iv) all certificates of occupancy,
licenses, permits, continuation certificates of occupancy,
variances relating to construction, use, location and/or
distance, authorizations and approvals with respect to the
Purchased Real Property, or any portion thereof, occupancy
thereof or any present use thereof;
45
(v) all guarantees and warranties
relating to the Purchased Real Property, the buildings, plants or
structures thereon or the equipment used in connection with the
ownership, operation or maintenance thereof; and
(vi) all environmental studies, evalua-
tions and reports prepared about the Purchased Real Property.
6.7 Seller expressly agrees to take the following
actions with respect to the Business prior to Closing:
(i) Seller shall take all actions required
of Seller under applicable Environmental Laws and under the
Environmental Permits to obtain or renew and transfer to the
Buyer the Environmental Permits. Seller shall bear all costs
associated with applying for, issuance or renewal of any such
Environmental
Permit, but any permit transfer fees shall be borne equally by
Seller and Buyer. Seller shall execute any and all transfer
documents and assist in obtaining any consent required in
connection with the transfer of the Environmental Permits.
(ii) Seller shall take all actions expressly
required of Seller under any applicable Environmental Law to
transfer to the Buyer all right, title and interest in and to the
Business and the Purchased Real Property.
6.8 Seller To Comply with Obligations.
--------------------------------------
Seller will use its best efforts to comply
with all of its obligations under this Agreement and to fulfill
all of the conditions precedent to Buyer's obligations.
6.9 As soon as practicable, the Seller and Buyer
shall make any and all filings which are required under the HSR
46
Act. Seller will furnish to Buyer and Buyer will furnish to
Seller such necessary information and reasonable assistance as
Buyer or Seller may request in connection with its preparation of
necessary filings or submissions to any governmental agency,
including, without limitation, any filings necessary under the
provisions of said Act. Each party will supply the other with
all correspondence, filings, communications or memoranda between
Seller or its representative, on the one hand, and the Federal
Trade Commission, the Antitrust Division of the U.S. Department
of Justice or any other governmental agency or authority or
members of their respective staffs, on the other, with respect to
this Agreement or the transactions contemplated hereby.
7. Conditions Precedent to
Obligations of the Buyer.
------------------------
The obligation of the Buyer hereunder to
consummate this Agreement is expressly subject to the
satisfaction on or before the Closing, of all of the following
conditions (compliance with which or the occurrence of which may
be waived in whole or in part by the Buyer):
7.1 Seller and Shareholders shall have materially
complied with and duly performed all agreements and conditions on
their part to be complied with and performed pursuant to this
Agreement on or before the Closing.
7.2 The representations and warranties of Seller
contained in this Agreement including the exhibits hereto (or, if
made to Seller's knowledge, the facts contained in each such
representation) shall be true and correct in all material
respects
47
as of the Closing with the same force and effect as though such
representations and warranties had been made on and as of the
Closing Date; provided, that the representations set forth in
Section 4.12, Section 4.7(b) and the first sentence of Section
4.9 shall be true and correct only as of the date of the
execution of this Agreement.
7.3 Between December 31, 1993 and the Closing
there shall have been no material and adverse change in the
Business or employee profile of the Seller.
7.4 From and after the date of this Agreement and
through and including the Closing, there shall have been no legal
action pending or threatened which could have a material adverse
effect on the Business or the Assets.
7.5 The Buyer shall have received all of the
documents required pursuant to Article 9 hereof and such
additional documents as Seller may have agreed in writing to
deliver.
7.6 The Buyer shall not have validly terminated
this Agreement pursuant to Article 12 hereof.
7.7 The HSR Act has been complied with by Seller
and either the waiting period has expired without objection from
the FTC or the FTC has agreed to early termination of the waiting
period.
7.8 Notwithstanding anything contained in Section
7.2 to the contrary, in the event that there is any variation
between the facts contained in the representations set forth in
Section 4.11 (other than those contained in 4.11(a) and 4.11(j))
and the facts existing as of the Closing, and such variation
would
48
not materially adversely affect the operations of the Business at
such Purchased Real Property, said representation shall be deemed
to be true and correct in all material respects for purposes of
Section 7.2.
7.9 (a) In all material respects, the Purchased
Real Property shall be in the same condition at Closing as it is
on the date hereof, reasonable wear and tear excepted. In the
event that between the date hereof and the Closing Date any
damage occurs to any of the Purchased Real Property as a result
of fire or other casualty, the foregoing condition shall be
deemed satisfied if (i) there are sufficient insurance proceeds
to restore the damage to substantially the same condition as
previously existed and Seller assigns to Buyer all of its right,
title and interest in and to such insurance proceeds or gives
Buyer a credit against the Purchase Price for the cost of
restoration and (ii) the damage (or the restoration of such
damage) would not materially adversely affect the operations of
the Business at such location.
(b) (i) Notwithstanding anything contained
herein to the contrary, in the event that any of the foregoing
conditions is not satisfied with respect to any portion of the
Purchased Real Property, Buyer may elect to close and consummate
the transactions contemplated in this Agreement with the deletion
of the subject Purchased Real Property from the transaction. In
the event Buyer elects to delete a Purchased Real Property, the
Purchase Price as set forth in Article 3 will be reduced by the
amount allocated to such Purchased Real Property on Exhibit 3.2.2
49
and at Buyer's election, Seller shall lease the affected
Purchased Real Property for one year to Buyer on the Lease Terms.
(ii) Notwithstanding the provisions of
subparagraph (i), if Buyer elects to delete a Purchased Real
Property, Seller may, by written notice to Buyer prior to the
Closing, elect to satisfy those conditions which were unsatisfied
as of the Closing Date in which event Buyer shall deposit with
the Escrow Agent the amount of the Purchase Price allocable to
such Purchased Real Property as set forth on Exhibit 3.2.2, Buyer
shall lease such Purchased Real Property for up to six months on
the Lease Terms and Seller shall have up to six months to satisfy
such conditions. Upon the satisfaction of such conditions, and
all other conditions precedent to Buyer's obligation to buy such
Purchased Real Property as provided elsewhere in this Agreement
within such period of six months, Buyer shall buy the property
from Seller and the payment shall be made from the escrow
deposit. In all other events, the escrow deposit together with
interest thereon shall be returned to Buyer.
8. Conditions Precedent to Obligations
of Seller and Shareholders.
-----------------------------------
The obligation of Seller and Shareholders to con-
summate this Agreement is expressly subject to the satisfaction
as of the Closing of all of the following conditions (compliance
with which or the occurrence of which may be waived in whole or
in part by Seller):
8.1 The Buyer shall have materially complied with
and duly performed all of the agreements and conditions on its
part
50
to be complied with or performed pursuant to this Agreement on or
before the Closing.
8.2 The representations and warranties of the
Buyer contained in this Agreement or otherwise made in writing in
connection with the transactions contemplated hereby shall be
true and correct in all material respects on and as of the
Closing with the same force and effect as though such
representations and warranties had been made on and as of the
Closing.
8.3 Seller shall have received all of the docu-
ments and payments required pursuant to Article 10 hereof.
8.4 The HSR Act has been complied with by the
Buyer and either the waiting period has expired without objection
from the FTC or the FTC has agreed to early termination of the
waiting period.
8.5 Seller shall not have validly terminated this
Agreement pursuant to Article 12 hereof.
9. Deliveries of Seller and
Shareholders at the Closing.
---------------------------
At the Closing Seller shall deliver or cause to be
delivered to the Buyer the following:
9.1 Certificate dated a current date from the
appropriate authorities in the State of Rhode Island attesting to
the existence and good standing of the Seller.
9.2 An opinion, dated as of the Closing, of
Messrs. Partridge, Snow & Hahn in substantially the form of
Exhibit 9.2.
9.3 Certified copies of the resolutions of the
Board of Directors and, if required by applicable law, the
51
shareholders of the Seller approving the execution of this
Agreement and the transactions contemplated herein.
9.4 Such documents of transfer and assignment
reasonably requested by Buyer to transfer good title to the
Assets.
9.5 At the Closing, Seller shall deliver all
delivery records, service records and credit records and such
other operating information relating to the Customers in Seller's
possession or under Seller's control and readily available to
Seller as Buyer may reasonably request relating to the Customers
and such computer printouts of current information as Buyer may
reasonably request.
9.6 If requested by Buyer, a letter to Customers
prepared by Buyer in form reasonably satisfactory to Seller
describing the transaction.
9.7 Assignment of Seller's telephone numbers set
forth on Exhibit 2.8.1.
9.8 Restrictive Covenant of Seller and Robert E.
DeBlois, Arthur J. DeBlois, III, Stephen J. DeBlois, Charles H.
DeBlois, Jr. and Arthur J. DeBlois, Jr. as set forth in Article
14.
9.9 Certifications as to material compliance with
this Agreement and number of Active Customers.
9.10 Written authorization for Buyer to endorse
and to deposit in its account checks payable to Seller in
connection with the accounts receivable of Seller to be collected
by Buyer; subject, however to Seller's rights pursuant to Article
16.
9.11 The Buyer shall have received all of the
documents required pursuant to Article 9 hereof and such
additional
52
documents as Seller may have agreed in writing to deliver and,
with respect to the Purchased Real Property, which Buyer's title
company reasonably requests or which are necessary or customary
to deliver to convey or transfer Seller's interest in the
Purchased Real Property.
9.12 In addition to anything set forth elsewhere
in this Agreement, with respect to the Purchased Real Property,
at the Closing, Seller shall deliver the following to Buyer:
(a) With respect to the Purchased Real
Property, a statutory form of Quitclaim Deed executed in proper
form for recording so as to convey title as required by this
Agreement;
(b) To the extent they are then in Seller's
possession and not posted at the Purchased Real Property,
certificates, licenses, permits, authorizations and approvals
issued for or with respect to the Purchased Real Property by
governmental and quasi-governmental authorities having
jurisdiction over, or the operations conducted at, the Purchased
Real Property.
(c) Checks payable to the order of the
appropriate officers in payment of all applicable real property
transfer taxes and copies of any required tax returns therefor
executed by Seller, which checks shall be certified or official
bank checks if required by the taxing authority, unless Seller
elects to have Buyer pay any of such taxes and credit Buyer with
the amount thereof against the balance due of the Purchase Price;
(d) Certification of Non-Foreign Status of
Transferor sufficient to comply with IRC Sec.Sec. 897, 1445 and
related provisions, as amended, and any substitute provisions of any
successor statute and the regulations thereunder ("FIRPTA") and
any other necessary documentation relating thereto;
(e) The information necessary for Internal
Revenue Service ("IRS") Form 1099-S or other similar form
required;
(f) Such affidavits or other documents as
Buyer's title company shall reasonably require in order to omit
53
from its title insurance policy all exceptions for judgments,
bankruptcies, or other returns against persons or entities whose
names are the same as or similar to Seller's or Shareholder's;
(g) Evidence, satisfactory to Buyer's title
company, of Seller's authority to sell and convey Seller's
interest in the Real Property and of Seller's authority to
execute the documents required hereunder and to take the actions
contemplated herein;
(h) Letters of good standing, lien releases,
or such other documents as the title insurance company may
require from either the Seller or the Rhode Island Division of
Taxation to issue its title insurance policy without exception
for potential liens arising under applicable law to secure unpaid
business corporation taxes; and
(i) Any other documents required by this
Agreement or by the State of Rhode Island or local law, including
but not limited to environmental laws, to be delivered by Seller
to convey or transfer, as required herein, the Purchased Real
Property in accordance herewith.
54
(j) An assignment to Buyer of all service
contracts indicated on Exhibit 4.11 as to be assigned to Buyer
and any consents required to effectuate each such assignment.
With respect to all other service contracts, proof, reasonably
satisfactory to Buyer, that each has been terminated.
9.13 Lease on the terms of Exhibit 9.13 (3 months,
with 3 month renewal) and otherwise on such reasonable terms as
the parties shall mutually agree upon in the exercise of good
faith.
9.14 An assignment to Buyer of all of Seller's
right, title and interest in restrictive covenants benefitting
the Business.
10. Deliveries of the Buyer at the Closing.
--------------------------------------
At the Closing, the Buyer shall deliver or cause
to be delivered to Seller the following:
10.1 Certified resolutions of the Board of
Directors of the Buyer authorizing the execution, delivery and
performance of this Agreement and the consummation of the trans-
actions contemplated herein.
10.2 Wire transfer in payment of the Purchase
Price, as adjusted, pursuant to Paragraph 3.5.
10.3 Assumption agreement covering the Assumed
Liabilities in the form of Exhibit 10.3.
10.4 An opinion, dated as of the Closing, of
Phillips, Nizer, Benjamin, Krim & Ballon in substantially the
form of Exhibit 10.4.
55
11. The Closing.
-----------
11.1 The closing ("Closing") shall take place at
the offices of Partridge, Snow & Hahn, 180 South Main Street,
Providence, Rhode Island, 9:00 A.M. on June 30, 1994 or at such
other time and place as the parties may agree ("Closing Date").
11.2 To the extent applicable, any taxes,
assessments, vault charges, water or sewer rent charges or
assessments which are due and payable as of the Closing Date,
together with interest and penalties thereon to a date not less
than two days following the Closing Date, and any other liens and
encumbrances which Seller is obligated to pay and discharge
elsewhere in this Agreement or which are against corporations,
estates or other persons in the chain of title, together with the
cost of recording or filing any instruments necessary to
discharge such liens and encumbrances of record, may be paid out
of the proceeds of the monies payable at the Closing if Seller
delivers to Buyer on the Closing Date official bills for such
taxes, assessments, water charges, sewer rents, interest and
penalties and instruments in recordable form sufficient to
discharge any other liens and encumbrances of record, or of which
Seller has knowledge. Upon request made a reasonable time before
Closing, Buyer shall provide at the Closing separate checks for
the foregoing payable to the order of the holder of any such
lien, charge or encumbrance and otherwise complying with this
Agreement.
11.3 If, on the Closing Date, there are any
pending applications or proceedings for reduction of the assessed
valuation of the Purchased Real Property and the real estate
taxes predicated
56
thereon which apply to or include the tax year during which the
Closing occurs and any refunds are recovered or the taxes are
reduced as a result thereof, whether by settlement or otherwise,
such refunds and/or reduction (after deducting all expenses,
including reasonable attorneys' fees) shall be apportioned
between Seller and Buyer to the day immediately prior to Closing.
11.4 Real estate and personal property taxes,
water and sewer use charges, fire district fees, and all other
sums which, if unpaid, constitute liens on the Purchased Real
Property, shall be apportioned as of the Closing Date and the net
amount thereof, shall be added to or deducted from, as the case
may be, the Purchase Price payable by Buyer at the time of
delivery of the deed. The Seller shall pay the documentary
stamps for recording the deeds. Also, those service contracts to
be assumed by the Buyer shall also be adjusted on the closing
Date with the Seller paying its pro-rata share of such amounts
for the period prior to and including the Closing Date and the
Buyer at its option paying or assuming the balance.
11.5 At or prior to Closing, Seller shall cause to
be discharged all mechanics' or materialmen's liens arising from
any labor or materials furnished to the Purchased Real Property
prior to the Closing Date, which obligation shall survive the
Closing.
57
12. Termination of Agreement.
------------------------
This Agreement may be terminated and the obliga-
tions to consummate this transaction cancelled at any time prior
to the Closing:
12.1 By mutual consent of Buyer and Seller.
12.2 By either Buyer or Seller if there has been a
material misstatement or material omission in a representation or
a material breach in any warranty or covenant on the part of the
other party the effect of which has not been cured within ten
(10) business days after notice thereof has been given, or in the
case of a breach or default the effect of which can be cured but
cannot be cured within 10 days, if said party diligently
commences to cure the same within said 10 day period and
thereafter fails to cure the effect of same, within 20 days after
such notice.
12.3 By either Buyer or Seller if the material
conditions precedent to its obligations have not been fulfilled
or complied with as provided in Articles 8 and 9 hereof,
respectively.
12.4 If this Agreement is terminated by Buyer
based upon a breach or default of Seller, other than Seller's
inability to transfer good and marketable title with zoning as
represented to any Purchased Real Property, the Seller shall pay
to the Buyer the sum of $1,500,000 as liquidated damages in lieu
of all other remedies available to Buyer and Seller shall have no
further liability to Seller arising out of or relating to this
Agreement. If there is no Closing for any other reason, Buyer
shall have no claim against the Seller.
58
13. Assumption and Indemnification.
------------------------------
13.1 Except as provided in Paragraph 13.2, Buyer
does not assume or agree to assume and shall not acquire or take
over any liability or obligation of any kind or nature of Seller,
direct, contingent or otherwise.
13.2 Buyer hereby agrees to assume, to discharge
and to hold Seller harmless from Seller's obligations and
liabilities existing as of the Closing Date (a) under all
Customer credit arrangements to the extent Buyer received a
credit under Article 3, (b) with respect to future work to be
performed under Customer service contracts for which Buyer
received a credit under Article 3, (c) for accrued employee bene-
fits of employees of Seller hired by Buyer to the extent Buyer
received a credit under Article 3, (d) warranty obligations of
the Business for parts and labor on normal one year warranties,
(e) obligations of the Business to furnish parts and labor under
manufacturers warranties furnish to Customers by the Business in
the ordinary course of business, (f) obligations under executory
installation agreements entered into by the Business in the
ordinary course of its business, (g) sales incentive programs of
the Business as described on Exhibit 4.9.2 and (h) normal and
usual one year service agreements at competitive rates affecting
the Purchased Real Property (collectively the "Assumed Liabili-
ties").
13.3 Seller agrees to defend, indemnify and hold
Buyer harmless from any and all liabilities, other than Assumed
Liabilities, of every nature and description (including
reasonable attorneys' fees), arising out of or relating to (i)
any and all of
59
Seller's activities and those of any predecessor prior to the
Closing, (ii) any liabilities or obligations of Seller and those
of any predecessor other than the Assumed Liabilities (iii)
failure to comply with the bulk sales law, (iv) any on-site
conditions or circumstances with respect to soil, surface waters,
groundwaters, stream sediment, air and similar environmental
media, on-site of the properties owned and or operated at any
time by the Seller that could require Cleanup and/or that may
result in Damages which occurred or commenced to occur prior to
the Closing other than those identified in the Environmental
Report, (v) conditions or circumstances with respect to soil,
surface waters, ground waters, stream sediment, air and similar
environmental media emanating from and offsite of the properties
owned and/or operated at any time by the Seller that could
require Cleanup and/or result in Damages, which occurred or
commenced to occur prior to the Closing, (vi) the violation by
Seller or any predecessors of any Environmental Law or
Environmental Permit by virtue of the use, operation, lease or
ownership of the Business or the Purchased Real Property other
than violations identified in the Environmental Review, and (vii)
any and all Damages arising out of or related to or resulting
from any Release or Hazardous Material identified as requiring
Cleanup in the Environmental Review regardless of whether the
Release of Hazardous Material was caused by Seller other than
Releases which did not occur or did not commence to occur prior
to the Closing or Hazardous Materials which were not located on
the Purchased Real Properties as of the Closing.
60
13.4 Buyer agrees to defend, indemnify and hold
harmless Seller from any and all liabilities of every nature and
description (including reasonable attorneys' fees) arising out of
or relating to any and all of Buyer's activities or those of any
successor following the Closing.
13.5 The indemnification for attorneys fees
contained herein shall include the legal costs incurred by a
party to enforce its rights under this Article. Any party
defending a claim which may be the subject of indemnification by
the other party shall engage counsel reasonable acceptable to
such other party.
13.6 The following definitions shall apply
for purposes of this Agreement:
Cleanup. "Cleanup" means all actions required to:
-------
(i) clean up, remove, treat or remediate Hazardous Materials in
the indoor or outdoor environment; (ii) prevent the Release of
Hazardous Materials so that they do not migrate, endanger or
threaten to endanger public health or welfare or the indoor or
outdoor environment; (iii) perform pre-remedial studies and
investigations and post-remedial monitoring and care; or (iv)
respond to any government requests for information or documents
in any way relating to cleanup, removal, treatment or remediation
or potential cleanup, removal, treatment or remediation of
Hazardous Materials in the indoor or outdoor environment.
Damages. "Damages" means all liabilities, obligations,
-------
responsibilities, losses, damages, deficiencies, punitive
damages, consequential damages, treble damages, costs and
expenses
61
(including, without limitation, all reasonable fees,
disbursements and expenses of counsel, expert and consulting fees
and costs of investigations and feasibility studies and
responding to government requests for information or documents),
fines, penalties, restitution and monetary sanctions, interest,
direct or indirect, know or unknown, absolute or contingent,
past, present or future, resulting from any claim or demand, by
any person, whether based in contract, tort, implied or express
warranty, strict liability, joint and several liability, criminal
or civil statute, including any Environmental Law, or arising
from environmental, health or safety conditions, the Release or
threatened Release of Hazardous Materials into the indoor or
outdoor environment, either on-site or off-site, as a result of
past or present (to the Closing Date) ownership, leasing or
operation of the Business or any properties, owned, leased or
operated by Seller.
Environmental Information. "Environmental Information"
-------------------------
means any tangible material relating to any environmental matter,
including, but not limited to, Cleanup, Environmental Laws,
Hazardous Materials, Damages, and Releases as defined in this
Agreement, material and relevant to the operation of the Business
or the Purchased Real Property, including the Environmental
Review, whether handwritten, typewritten, printed, recorded or
graphic matter including computer-generated mediums, however,
produced or reproduced and regardless of whether created by or on
behalf of Seller or some other entity .
Environmental Laws. "Environmental Laws" means all
------------------
current foreign, federal, state and local statutes, common laws,
62
laws, judicial decisions, regulations, rules, orders,
stipulations, consent agreements, administrative decisions or
ordinances relating to (i) pollution or protection of the
environment, including, without limitation, laws relating to
Releases or threatened Releases of Hazardous Materials into the
indoor or outdoor environment (including, without limitation,
ambient air, surface water, groundwater, land, building
materials, surface and subsurface strata) or otherwise relating
to the manufacture, processing, distribution, use, treatment,
reclamation, recycling, storage, disposal, Release, transport or
other handling or management of Hazardous Materials; or (ii)
occupational health and safety in so far as it relates to
Hazardous Materials.
Environmental Permits. "Environmental Permits" means
---------------------
all permits, consents, licenses, certificates, approvals,
registrations and other authorizations which are required under
the Environmental Laws for the ownership, use, lease or operation
of the Business or Purchased Real Property.
Hazardous Materials. "Hazardous Materials" means all
-------------------
substances, constituents, materials or wastes defined as
hazardous substances in the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. Sec. 9601 et seq., or
------
regulated under, any Environmental Law and including without
limitation, any oil, petroleum, petroleum product, pollutant,
dangerous substance, toxic substance or hazardous substance.
Release. "Release" means any release, spill, emission,
-------
discharge, leaking, pumping, injection, deposit, disposal,
discharge, dispersal, leaching or migration into the indoor or
63
outdoor environment (including, without limitation, ambient air,
surface water, groundwater, building materials and surface or
subsurface strata) or into or out of any property, including the
movement of Hazardous Materials through or in the air, soil,
surface water, groundwater or property either off-site or on-
site.
14. Restrictive Covenants. The Seller and each of the
---------------------
Shareholders agrees as follows:
14.1 For a period of five (5) years from the date
of Closing it (he or she) will not in the Territory, directly or
indirectly, sell or distribute, or solicit or accept orders for
the sale or distribution of, or assist or advise any person in
connection with the sale or distribution of, or the solicitation
or acceptance of orders for (a) the sale of (i) retail delivered
home, commercial and industrial non-Bid #2 fuel oil, (ii) retail
non-Bid delivered kerosene for home heating, (iii) retail non-Bid
delivered home, commercial and industrial propane and (iv) the
sale of petroleum products on a Bid basis to Customers and (b)
the sale, installation and servicing of heating equipment and
airconditioning equipment; except to properties, service stations
and convenience stores owned or operated by Seller or its
subsidiaries, in the Territory.
14.2 From the date of the Closing, it (he or she)
will not in the Territory, directly or indirectly (i) sell or
distribute, or solicit or accept orders for the sale or distribu-
tion of, or assist or advise any person in connection with the
sale or distribution of, or the solicitation or acceptance of
orders for
64
(a) the sale of (i) retail delivered home, commercial and
industrial non-Bid #2 fuel oil, (ii) retail non-Bid delivered
kerosene for home heating and (iii) retail non-Bid delivered
home, commercial and industrial propane and (b) the sale,
installation and servicing of heating equipment and
airconditioning equipment; except to properties, service stations
and convenience stores owned or operated by Seller or its
subsidiaries, to the Customers or interfere or seek to interfere
with the patronage of the Customers with the Buyer or (ii)
communicate with any of the Customers or assist any person to
communicate with any of the Customers relating to the activities
in which it is prohibited from engaging in except at the prior
written request of Buyer.
14.3 At no time after the Closing will it disclose
any information included in the Customer Information or use the
Tradenames or any phrase incorporating the Tradenames or
phonetically similar to the Tradenames; provided, however, that
Seller may retain its corporate name and use such corporate name
on required governmental filings.
14.4 The Seller acknowledges that if it should
breach a covenant contained herein, Buyer's remedy at law will be
inadequate. Therefore, in addition to any remedy otherwise
available to the Buyer, and notwithstanding the provisions herein
for arbitration, the Seller agrees that Buyer shall be entitled
to an injunction restraining it from any such violation.
Moreover, if it shall be determined by any arbitration panel or
court, that any covenant herein is not enforceable due to its
geographic area or duration, then it is the intention of the
parties that such
65
covenant shall be enforceable to the greatest extent possible,
and will be deemed amended so as to reduce the geographic area or
duration, as the case may be, to the extent necessary to secure
enforceability.
14.5 For the purposes of this Article, a person
will be deemed directly or indirectly engaged in a business if
it, or in the case of an individual he or his spouse,
participates in such business as proprietor, partner, joint
venturer, stockholder, director, officer, lender, manager,
employee, consultant, advisor or agent or if it, or in the case
of an individual, he or such spouse controls such business. Such
person shall not for purposes of this Article be deemed a
stockholder or lender if it, or in the case of an individual, he
or his spouse, holds less than two (2%) percent of the
outstanding equity or debt of any publicly owned corporation
engaged in the same or similar business to that of the Seller,
provided that Seller or such spouse shall not be in a control
position with regard to such corporation.
14.6 Notwithstanding the foregoing:
(a) Any activity permitted in the definition
of Excluded Business shall not be restricted by this Article.
(b) Seller shall be permitted to use
"DeBlois" as a corporate name or in conjunction with any other
words or phrases other than "Oil Company" or "Fuel Oil";
provided, however, that the name DeBlois may not be used by
Seller either separately or in conjunction with any other words
or phrases as a trade name to market petroleum products to
consumers.
66
(c) Seller shall have the exclusive right to
use the tradenames "DB" and "DB Mart", except that Buyer will
have the exclusive right to use the DB logo in the form it is
presently used to market products of the Business. If Buyer
discontinues the use of such DB logo, Buyer shall reconvey it to
Seller at no cost.
14.7 The benefit of the provisions of this Article
shall be assignable to, and enforceable by, any person, firm,
corporation or other entity which purchases any of the Customers
from Buyer.
15. Notices. All notices, requests and other communi-
-------
cations shall be in writing and shall be deemed to have been duly
delivered if delivered personally or mailed by certified mail,
return receipt requested to the parties at their above address or
such other address as a party may designate in the manner
provided herein for giving of notices. Copies of all
communications shall be sent to:
Phillips, Nizer, Benjamin, Krim & Ballon
31 West 52nd Street
New York, New York 10019-6167
Attn: Alan Shapiro, Esq.
Partridge, Snow & Hahn
180 South Main Street
Providence, Rhode Island 02903
Attn: John Partridge, Esq.
16. Seller's Accounts Receivable.
----------------------------
16.1 It is agreed that none of Seller's accounts
receivable shall be sold or transferred to Buyer; provided,
however, that for a period of 120 days following the Closing
67
("Collection Period"), Buyer agrees to include in its billing to
Customer, and collect on behalf of the Seller, the accounts
receivable of Active Customers and all Customers to whom Buyer
makes fuel oil deliveries; provided, however, that Buyer agrees
to follow such procedures with respect to equipment installation
receivables owned by Seller, as well as those previously sold by
Seller to Citizens Trust Company for which Seller acts as
collection agent, for the life of such equipment installment
receivables, except that Buyer reserves the right to purchase
without recourse any equipment installment receivables owned by
Seller at any time, discounted to present value at 6% per annum.
Prior to the Closing, all debit balances relating to interest
charged to Customers shall be deleted from Seller's accounts
receivable. Buyer shall be under no obligation to institute
litigation to collect such accounts receivable. If Buyer
receives payment relating to the accounts receivable of any other
Customers or other persons owing amounts to Seller, Buyer shall
promptly transmit them, in the form received, to Seller. Buyer
shall include the amounts due to Seller in Buyer's billing to the
Customers. All amounts received from a Customer shall be
applied first to satisfy amounts owed by said Customer to Seller.
After the full amount owed to Seller by said Customer with
respect to all such accounts receivable has been satisfied, Buyer
may retain any payments made by any such Customer. If a Customer
disputes Buyer's payment to Seller of any monies paid to Buyer by
such Customer, then Buyer will notify Seller and Seller will hold
Buyer harmless from any loss to the extent of the amount paid
over to Seller with
68
respect to such Customer. If (i) Buyer had made a payment under
this Paragraph 16.1 to Seller with respect to any Customer, and
(ii) at the end of the Collection Period such Customer is
disputing any amount due from said Customer to Seller, then, at
the election of Buyer, Seller shall refund to Buyer the amount in
dispute. Thereupon Seller shall have the right to proceed
directly against such Customer for any amounts owed to it.
Seller shall pay over to Buyer immediately any amounts which
Seller receives from any of the Customers relating to accounts
receivable being collected by Buyer. Promptly after the
Collection Period, Buyer agrees that it will cease all billing
and collection efforts with respect to any Customer's balance
arising prior to the Closing and shall return to Seller all
relevant customer records and Buyer shall be relieved of any
responsibility with respect to such Customer balance arising
prior to the Closing and Seller may enforce its rights to collect
any of its accounts receivable arising prior to the Closing which
remain outstanding; or, Buyer, if it so desires, may pay to
Seller the amount of the account receivable due to Seller from
the Customer and upon said payment Buyer shall own the account
receivable and Seller shall have no further interest therein.
16.2 During the time Buyer is collecting Seller's
accounts receivable, Seller or its representative may inspect the
records of Buyer with respect to such accounts receivable of the
Customers, during normal business hours on reasonable notice.
16.3 On the 1st and 15th of each month, Buyer
shall remit amounts due to Seller resulting from collecting
accounts receivable during the preceding 15 days and will supply
Seller with
69
a listing of the Customers and amounts still owed by each. After
the Collection Period Buyer shall continue to remit to Seller all
amounts received with respect to Seller's accounts receivable
unless Buyer has purchased the account receivable from Seller;
Buyer shall apply amounts received first to amounts owed to Buyer
unless the Customers indicate to the contrary in writing and if a
Customer disputes payment to Seller, Seller shall refund to Buyer
the amount in dispute.
17. Additional Agreements.
---------------------
17.1 After the Closing, Seller agrees to facili-
tate the transfer of the Customers to Buyer and will cooperate
with Buyer in a reasonable manner to facilitate such transfer and
the maintenance of such patronage by Buyer; provided that Seller
shall not be required to expend funds or inordinate time and
attention to fulfill this obligation.
17.2 For a period of three years after the
Closing, the Seller and Buyer shall retain and keep available for
inspection by the other and its authorized representatives during
normal business hours all service, delivery, billing and payment
records relating to the Customers and the Business. Seller and
Buyer shall each permit the other to remove all or any part of
said records for a reasonable time for inspection and copying.
17.3 At Buyer's request, the Seller will request
its accountant to furnish to Buyer financial statements for the
three fiscal year ends of the Business next preceding the Closing
and, if such financial statements are not audited, will cooperate
with
70
Buyer, at Buyer's expense, to obtain an audit of such financial
statements. At Buyer's request, following the Closing Seller
will request its accountants to furnish to Buyer unaudited
financial statements including a statement of the cash flow of
the Business for the 12 months ended with the calendar quarter
which next precedes the Closing. "Cash flow" means net income
plus depreciation and amortization.
17.4 Seller covenants that if any Shareholder
acting on behalf of himself or Seller has disclosed or hereafter
discloses any Customer Information and any person to whom such
Customer Information is disclosed attempts to use such informa-
tion for competitive purposes, Seller will indemnify and hold
Buyer harmless from any loss resulting therefrom. If any
employee or former employee of Seller has disclosed or hereafter
discloses or uses for his own benefit any Customer Information
obtained from Seller, at Buyer's request and at Buyer's cost,
Seller shall immediately commence and diligently prosecute an
appropriate action or proceeding for a permanent injunction pro-
hibiting any such use and will use their best efforts to obtain a
court order restraining any such use during the pendency of such
action or proceeding; provided, however, that such proceeding
shall be at Seller's cost if such disclosure or use was made and
known to them prior to the Closing. Seller shall not bring an
action except at the request of Buyer. At Buyer's request,
Seller shall assign to Buyer any cause of action which Seller may
have against any present or former employee or independent
contractor and Seller and Shareholders will reasonably cooperate
with Buyer in the prosecution of such claim.
71
17.5 Except as disclosure may be required by Buyer
pursuant to securities laws, each of the parties agrees that it
will keep confidential and not disclose to any person other than
its employees, accountants and attorneys the details of this
Agreement, including, by way of example and not limitation, the
total purchase price, the purchase price per gallon or the
purchase price for any particular Assets. It is understood that
Buyer reserves sole discretion as to timing of any announcement
required by securities laws; but Buyer agrees to consult with
Seller as to the content of any such announcement and that it
shall make no such announcement without prior notice to Seller.
17.6 If Buyer has been unable to transfer Seller's
telephone numbers prior to the Closing, Seller will afford to
Buyer access to Seller's premises for up to 30 days on a 7 day
per week 24 hour per day basis to permit Buyer's personnel to
answer Seller's telephone.
17.7 Following the Closing, Buyer shall have the
authority to receive Seller's mail and to remove checks in
payment of the accounts receivable and other items relating to
the Buyer's ongoing business with the Customers; subject,
however, to Seller's rights to collect its accounts receivable as
provided in Article 16. All items belonging to Seller shall be
promptly delivered to Seller.
17.8 The Purchase Price shall be allocated to the
Assets as provided in Section 3.2. Neither Buyer nor Seller
shall take any position that varies from or is inconsistent with
such allocation in any filing made by such party with the
Internal
72
Revenue Service (the "IRS") or any other governmental or
regulatory authority; provided, however, nothing in this
Agreement shall impose on either party the duty or obligation to
contest any action which the IRS may take or any adjustment or
change in such allocation which the IRS may make or propose. The
allocation of the purchase price among intangible assets shall in
no way limit the equitable or legal relief to which Buyer is
entitled in the event Seller or Shareholders should breach any
representation, warranty or covenant in this Agreement.
17.9 Buyer agrees that it will make job offers to
those employees listed on Exhibit 4.9.1 to become employed by the
Buyer at the same pay scale as indicated on Exhibit 4.9.1 and
will afford to such employees benefits which are similar to those
now afforded to them as described on Exhibit 4.9.2. This is not
a covenant or agreement to retain any such persons as employees
and Buyer reserves the right to terminate the employment of any
such employee when Buyer believes it is in its best interest to
do so.
18. Arbitration.
-----------
18.1 Following the Closing, any dispute arising
out of or relating to this Agreement, including modification or
amendment hereof, shall be resolved by arbitration in the City of
Providence, pursuant to the rules then obtaining of the American
Arbitration Association. The parties agree that the arbitrators
sitting in any such controversy shall have no power to alter or
modify any express provision of this Agreement, or to make any
award which by its terms effects such alteration or modification.
73
The parties consent in connection with any arbitration hereunder,
that they may be served in or out of the State of Rhode Island by
certified or registered mail, return receipt requested, or by
personal service, provided a reasonable time for appearance is
allowed, or in such other manner as may be permitted under the
Rules of the American Arbitration Association. Judgment upon the
award rendered may be entered by any court having jurisdiction.
Injunctive relief which, but for this provision to arbitrate
disputes, would be available, shall be available to the parties
in a court proceeding hereto pending the final award.
18.2 The provision for arbitration contained
herein shall in no way limit or restrict the right of a party to
assert a claim against another party, by means of cross-claim,
interpleader or otherwise, in an action commenced against one or
more of the parties hereto by a third party.
18.3 The Buyer may assert no claims for
arbitration (or commence any action in law or equity) unless and
until the aggregate of all such claims exceeds $75,000.
18.4 No claim for arbitration may be asserted (or
any action at law or equity commenced):
(a) in the case of an alleged breach of any
representation or warranty, more than 18 months after the
Closing;
(b) in the case of a claim for
indemnification under Paragraphs 13.2, 13.3 (i) through (iii) or
13.4 more than 36 months after the Closing;
(c) in the case of a claim for
indemnification under Paragraph 13.3 (iv) through (vii) more than
60 months after
74
the Closing; provided, however, that any claim relating to
offsite disposal of materials from any of the Purchased Real
Properties may be asserted at any time.
A claim for indemnification shall be deemed
asserted at such time as Buyer notifies Seller of a claim
asserted against Buyer by a third party.
18.5 Notwithstanding the foregoing, (i) Sellers
total liability for any breaches of representation and warranties
and claims for indemnification shall not exceed $10,500,000 in
the aggregate, and (ii) Sellers total liability for Required
Remediation at any Purchased Real Property shall not exceed the
Maximum Remediation Amount for such Purchased Real Property.
19. Miscellaneous.
-------------
19.1 This Agreement constitutes the entire
agreement between the parties hereto pertaining to the subject
matter hereof and supersedes all prior and contemporaneous agree-
ments (except those contemplated hereunder), understandings,
negotiations and discussions, whether oral or written, of the
parties. No supplement, modification or waiver or termination of
this Agreement or any revision hereof shall be binding unless
executed in writing by the parties to be bound thereby. All
representations and warranties made herein shall survive the
Closing.
19.2 This Agreement is intended to be performed in
the State of Rhode Island and shall be construed and enforced in
accordance with the laws of the State of Rhode Island.
75
19.3 The parties hereto agree that they will, at
the expense of the requesting party, from time to time execute
and deliver any and all additional and supplemental instruments,
and do such other acts and things which may be necessary or
desirable to effect the purpose of this Agreement, and the
consummation of the transactions contemplated hereby. Buyer
agrees that it will not record this Agreement or any notice of
this Agreement.
19.4 Waiver by any of the parties hereto of any
breach of, or exercise of any right under this Agreement, shall
not be deemed a waiver of similar or other breaches or rights.
19.5 Captions and section headings used herein are
for convenience only, and are not a part of this Agreement, and
shall not be used in construing it.
19.6 All of the terms and provisions of this
Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective transferees, successors
and assigns. Neither party may assign this Agreement or any
interest therein, except that Buyer may assign any interest in
this Agreement to a subsidiary or affiliate providing that Buyer
shall remain primarily liable for all obligations hereunder and
shall furnish a guaranty to such effect reasonably satisfactory
to the Seller.
19.7 All sales/use taxes, if any, arising out of
the sale of the Assets hereunder, shall be paid by Buyer.
19.8 Buyer hereby agrees to indemnify and hold
Seller harmless against and in respect of any claims from
brokerage or other commissions relating to the Agreement or the
transactions
76
contemplated hereby resulting from its own dealing with any
person in connection with this transaction and Seller hereby
agrees to indemnify and hold Buyer harmless against and in
respect of any claims from brokerage or other commissions
relating to the Agreement or the transactions contemplated hereby
resulting from its own dealing with any person in connection with
this transaction.
19.9 This Agreement is intended to benefit the
parties hereto and there shall be no third party beneficiaries of
this Agreement including, but not limited to, employees,
creditors, customers and suppliers of Seller or Buyer or any
other person Buyer or Seller may have dealt in connection with
this transaction. In particular, but not in limitation of the
foregoing, no creditor of Seller and no person seeking to enforce
any agreement between such creditor and Seller shall have any
rights by virtue of this Agreement.
DeBLOIS OIL COMPANY
By:___________________________
Robert E. DeBlois, President
PETROLEUM HEAT AND POWER CO.,
INC.
By:___________________________
C. Justin McCarthy,
Senior Vice President
______________________________
Robert E. DeBlois
______________________________
Charles H. DeBlois, Jr.
77
______________________________
Stephen J. DeBlois
______________________________
Arthur J. DeBlois, Jr.
______________________________
Arthur J. DeBlois, III
78
EXHIBITS
2.8.1 Tradenames and Telephone Numbers
3.2.1 Motor vehicles
3.2.2 Purchased Real Property
3.2.3 Propane Assets
3.2.4 Miscellaneous Assets
4.4(a) Posted Prices
4.4(b) Guaranteed Price Arrangement
4.4(c) Service Contract Form
4.4(e) Accounts receivable
4.4(f) Large Customers
4.4(g) Acquisitions
4.4(i) Subcontractors
4.4(j) Discounts
4.4(k) Central Delivery Systems
4.4(l) Certain Employees
4.6.1 Litigation
4.9.1 Employees
4.9.2 Benefits
4.10 Conflicting Interests
4.11 Real Estate Exceptions, etc.
4.12 Environmental Matters
9.2 Legal opinion - Seller's attorney
9.13 Form of Lease
10.3 Assumption Agreement
10.4 Legal opinion - Phillips, Nizer, Benjamin, Krim &
Ballon
79