HomeMy WebLinkAboutLANDGAS OF GEORGIA LIMITED PARTNERHIP ASSET PURCHASE AGREEMENT
CLOSING BINDER
FOR
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
LAND GAS OF GEORGIA LIMITED PARTNERSHIP
AND
AUGUSTA, GEORGIA
DATED DECEMBER 21, 2007
Closing Binder Index for
Agreement for Purchase and Salt! of Assets
Between LandGas of Georgia, L.P. and Augusta, Georgia
Dated December 21, 2007
TRANSACTION DOCUMENTS TAB
Asset Purchase Agreement between LandGas of Georgia, L.P. A
and Augusta, Georgia dated December 2 I, 2007
Exhibits to Asset Purchase Agreement Ex. #
Stipulated Dismissal Order in Civil Action No. Ex. A
2005-RCCV -643 dated February 20, 2008
Mutual Release between LandGas of Georgia, Ex. B
L.P. and Augusta, Georgia dated January 4,2008
Termination of Gas Lease and Easement Ex. C
Agreement between LandGas of Georgia, L.P.
and Augusta, Georgia dated January 4, 2008
Bill of Sale between LandGas of Georgia, L.P. and Augusta, Georgia B
dated January 4, 2008
Assignment and Assumption Agreement between LandGas of Georgia, C
L.P. and Augusta, Georgia dated January 4,2008
LandGas of Georgia, L.P. Closing Certificate dated January 4,2008 D
Augusta, Georgia Closing Certificate dated January 4, 2008 E
Withholding Agreement between LandGas of Georgia, L.P. and F
Augusta, Georgiadated January 28, 2008
Sales and Use Tax Clearance Certificate Issued to LandGas of Georgia, G
L.P. dated February 7, 2008
Filed Stipulated Dismissal order dated March 19, 2008 H
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
LANDGAS OF GEORGIA LIMITED PARTNERSHIP
AND
AUGUSTA, GEORGIA
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ARTICLE I
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
ARTICLE II
2.1
2.2
2.3
2.4
2.5
2.6
2.7
2.8
2.9
2.10
2.11
2.12
2.13
2.14
2.15
2.16
2.17
2.18
ARTICLE ill
3.1
3.2
ARTICLE IV
4.1
4.2
4.3
4.4
4.5
4.6
4.7
4.8
4.9
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TABLE OF CONTENTS
PURCHASE OF RIGHTS AND ASSETS .............................................................. 2
Agreement to Purchase and Sell....................... ................. .................. .........................2
Time and Place of Closing ................................ .......................... ............................. .....3
Consideration ............. ....................................... ............ ......... ... .......................... ......... 3
Assumed Liabil ities...................... ....... ............. ......... ............... .......................... .......... 3
Retained Liabilities '" .................. ....... ..... ...... .................. ..................... .......... .............. 3
Retained Assets ... ......... ................................. .................. ..................... .................. ...... 4
Assignment of Contracts .................... ....... ........... ................................ ........ ................4
Bulk Sales Laws .............................. .... .................... .................. ..... ............. ...... ............ 5
REPRESENTATIONS AND WARRANTIES OF SELLER .................................5
Organization, Standing and Power ...............................................................................5
Authorization of Agreement; No Breach .....................................................................5
Indebtedness .................. ............................................................ ................................... 5
Tax Matters .......... ......................................... ....... ........................................................ 6
Real and Personal Property ..........................................................................................6
Inventory. .............. ................ ......................................... ............. ........................ .......... 6
Insurance ......................... ............................................................................................. 6
Compliance with Laws; Consents Required ................................................................7
Environmental Matters ........ ......... ......... .... .........,..................... ............................. ....... 7
Litigation and Claims .................... ............................................................................... 7
Contracts and Commitments ................ .................... ...... ...................... ......... ........ ... .... 7
Suppliers and Customers .... .......... ........ ................... ........................................ ... .......... 8
Guarantees, Warranties and Discounts ........................................................................ 8
Employment Matters ... ............ ...................... ......... .................. .................................... 8
Accounts Receivable.. ....... ................. ............. .... .... ..... ................................................ 8
Schedules... ........... ..... ......... ................. ............ ........... .............................. .............. ...... 8
Authority to Assign ............... .............. ......... ....................... ..............:.. ............ ...... ...... 9
Quality of Assets ... ............ ......... ................... ....... .......... .........,.... ........................ ......... 9
REPRESENT A nONS AND WARRANTIES OF BUYER ................................... 9
. .
Organization, Standing and Power ............................................................................... 9
Authorization of Agreement; No Breach .....................................................................9
ADDITIONAL AGREEMENTS..... ........... ........ ............... ................................. ....... 9
Stay of the Lawsuit ........ .............. ....... ................. ......................................................... 9
Mutual Dismissal with Prejudice of the Lawsuit ......................................................... 9
Mutual Release.... .;....................... ....... ................. .............. .......... ............... ......... ......10
Termination of Gas Lease Agreement........................................................................ 10
Retained Liabilities ................ .... .................... .......... ........................... ..... ..... ....... ...... 10
Transfer Taxes.. ....... ........................ .... ...... .............. ....... .................... .... ...... .... ....... ... 10
Access to Records ...................................................... .................................. .............. 10
Preserve Accuracy of Representations and Warranties .............................................10
Consents . .... .......... .........;........................................ .............. ................... .................... 1 0
ARTICLE V
5.1
5.2
ARTICLE VI
6.1
6.2
6.3
6.4
6.5
6.6
ARTICLE VII
7.1
7.2
7.3
7.4
7.5
7.6
7.7
7.8
7.9
7.10
7.11
7.12
7.13
7.14
7.15
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CONDmONS PRECEDENT TO CLOSE ........................................................... 10
Buyer's Conditions Precedent to Close...................................................................... 10
Seller's Conditions Precedent to Close ...................................................................... 12
INTERIM OPERATIONS...... .................................................................... ............. 13
Buyer's Interim Operations.................................................. ..................... ........... ...... 13
Commencement of Interim Operations ...................................................................... 13
Interim Assignment of Landfill Gas Sales Agreement..............................................13
Consents for Interim Operations ................................................................................13
Insurance ........ ........ ........;....... ........... ............... ............ ................. ............ ................. 13
Risk of Loss During Interim Operations Period......................................................... 14
MISCELLANEOUS ....... .............-....... ................. ................. ..... ..... ........ ..... .......... ... 14
Definitions...................... ....................................................... ... ............ .......... ............ 14
Expenses.. ...................... .......................... ...... ................................................... .......... 1 7
Entire Agreement ........................... ........ .......... ... ................... ............................. ....... 17
Amendments.................... ..... ............... ....... ...................... ....:...... ...... ...... ...... ............ 17
Waivers.............. .......... ........... ........... ................ ........................ ................................. 17
Assignment.... ......... .................................................. ................. ..................... ........ .... 17
Notices................... .... ............................ ........ ............... .............................................. 18
Governing Law; Resolution of Disputes .................................................................... 18
Counterparts................... .................. ........... ............................................. ........... ....... 19
Captions................. .:................ ..........~........................................................................ 19
Specific Performance........... ...... ........ ............ .................... ........................................ 19
Severability .. ......... ..... ....... ... ........ ............................... ......, ....... ..... ............................. 19
Further Assurances..................................................... ......................... ............ ........... 19
No Partnership..... .,........ ........ ...................... .......... ........ ...... ............................... .... .... 19
No Construction Against Drafters~............................. ......... ................ ....................... 19
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of the Effective Date, by and between LandGas of Georgia Limited Partnership ("Seller")
and Augusta, Georgia, a municipal corporation chartered under the laws of the state of Georgia
("Buyer"). Seller and Buyer are hereinafter sometimes collectively referred to as the "Parties."
and each of them is hereinafter sometimes individually referred to as "~."
Preamble
WHEREAS, Seller and Buyer are parties to that certain Gas Lease and Easement
Agreement, dated November 4, 1996 and Addenda entered into in July 2000 and September 2003
(the "Gas Lease A~eement");
WHEREAS, pursuant to the terms of the Gas Lease Agreement, Buyer granted Seller
certain lease and easements rights to extract and utilize gas elements from the Deans Bridge
Road Landfill located at 4330 Deans Bridge Road, Blythe, Georgia (the "Landfill"), or that may
be produced through aerobic and anaerobic decomposition of materials deposited in the Landfill
(such gas elements are collectively referred to herein as "Landfill Gas");
WHEREAS, pursuant to the terms of the Gas Lease Agreement and certain contracts
with third parties, the Seller has engaged in the business of gathering and utilizing Landfill Gas
for the purpose of fueling electric generation, or for the purpose of transporting for sale to third. ..,.
parties and such other purposes as Buyer and Seller agreed upon from time to time (collectively,
the "Business"); and
WHEREAS, Buyer commenced a lawsuit in the Superior Court of Richmond County
Georgia styled as Augusta, Georgia v. LandGas of Georgia, LP, Civil Action No. 2005-RCCV-
643 (the "Lawsuit"), alleging claims for, inter alia, breach of the Gas Lease Agreement; and
WHEREAS, Seller denies the allegations asserted by Buyer in the Lawsuit, and denies
any and all liability or responsibility for the claims that Buyer alleges; and
WHEREAS, the parties participated in mediation on February 7, 2007 and March 5,
2007 in an attempt to resolve the Lawsuit; and
WHEREAS, the Parties reached a settlement in principle during mediation pursuant to
which the Parties desire to enter into this Agreement with respect to the Purchased Assets (as
defined below) and under which the parties desire to fully and finally settle and compromise all
actual or potential differences and disputes between them, including, but not limited to, the
claims and demands alleged in the Lawsuit.
NOW, THEREFORE, in consideration of the . above and the mutual warranties,
representations, covenants and agreements set forth herein, and the payment and mutual. promises
set forth below and for other good and valuable consideration, the receipt and sufficiency of
which the Parties hereto acknowledge, the Parties agree as follows:
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ARTICLE I
PURCHASE OF RIGHTS AND ASSETS
1.1 Agreement to Purchase and Sell. Subject to the terms and conditions set forth
herein, Seller agrees to sell, convey, transfer, assign and deliver to Buyer, and Buyer agrees to
. purchase (the "Acquisition") all of Seller's right, title and interest in and to (i) the Business and
(ii) all of the Assets of Seller (other than the Retained Assets) including, without limitation, the
following Assets of Seller, as the same shall exist on the date hereof and any addition thereto on
or before the Closing Date (collectively, the "Purchased Assets"), free and clear of all Liens:
(a) All accounts receivable of Seller (the "Accounts Receivable");
(b) All inventory, raw materials, work-in-progress, goods held for resale and
supplies, wherever located (the "Purchased Inventory");
Assets;
(c) All un installed equipment related to any expansion of the Purchased
(d) All equipment used or contemplated for future use in the operation,
production, gathering, processing, testing, monitoring, collection, control, distribution and
combustion of Landfill Gas, and Landfill gas-fired electronic generation equipment and electric
transmission equipment, machinery, supplies, Landfill Gas wells, flares, compressors, pipes, and
pipelines for transporting Landfill Gas to any purchaser or end user of Landfill Gas (including all
uninstalled improvements and equipment, whether fore:cpansion or otherwise, related thereto)
(collectively, the "Gas Collection and Control System") and all other tangible personal property
and leases for tangible personal property used or held for use in the operation of the Business
other than tangible personal property which is a Retained Asset;
(e) All rights to manufacturer's or other rebates, credits or discounts in
connection with the Purchased Inventory, Purchased Assets, or Seller's accounts or trade
payables accrued or payable to Seller on or after the Closing Date;
i.
(t) To the extent permitted by applicable Law and subject to Section .1.7
hereof, all of the Contracts to which Seller is a party or that are binding on Seller with respect to
. the Business or to which any of the Purchased Assets are subject (excluding all Contracts
relating to Seller's Debt or listed on Schedule 1.6(c)), or pursuant to which Seller has the right to
receive income with respect to the Business or any of the Purchased Assets on and after the
Closing Date, including, without limitation, that certain Landfill Gas Sales Agreement entered
into by and between Seller and United Catalyst, Inc. (now know as Unimin Corporation) on or
about December 19, 1996, as amended from time to time (the "Assumed Contracts");
(g) The intangible Assets of Seller relating to the Business or the Purchased
Assets, including, without limitation, all rights under the Assumed Contracts, guarantees from
third parties, licenses, warranties, designs, specifications and requirements;
(h) All operating data and records of the Seller relating to the Business or
the Purchased Assets including, without limitation, customer lists, vendor lists, books, records,
manuals, operating guidelines and practices, sales and historical cost and pricing information,
business plans, databases, financial records and related information of Seller;
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(i) All warranties and documentation relating to the Purchased Assets and
all guarantees, and any rights of Seller against suppliers and manufacturers;
G> All prepaid items including, without limitation, all equipment, lease and
other deposits existing on the Closing Date;
(k) All Permits used by Seller to operate the Business or the Purchased
Assets as currently conducted by the Seller~
(I) All choses in action, causes of action (except for those that are related
. exclusively to any of the Retained Assets), claims, and demands of Seller (whether known or
unknown, matured o'r unmatured, accrued or contingent); including rights of recovery, rights of
warranty and indemnity, rights of set-off and rights of recoupment; any rights to Seller's
insurance policies set forth on Schedule 2.7;
(m) All rights of Seller under the Gas Lease Agreement (whether easement
rights, lease rights or otherwise);
(n) All rights of Seller under any easements associated with or benefiting
the Business or the Purchased Assets;
(0) All emission credits (other than tax credits), reductions or offsets, in
each case to the extent arising from the extraction, initial processing, distribution, use and first
sale of Landfill Gas whenever generated, produced, or realized; and
(p) All other Assets, other than the Retained Assets which are used or held
for use in the operation of the Business or otherwise reasonably necessary for the operations of
the Business as presently conducted.
1.2 Time and Place of Closing. The closing (the "Closing") will take place at 10:00
A.M. (Eastern DSn on January 2, 2008 (the "Closing Date"). The place of Closing shall be .at
the offices of Alston & Bird LLP, located at One Atlantic Center, 1201 West Peachtree Street,
Atlanta, Georgia 30309-3424 or at such other place as the Parties may designate in writing.
1.3 Consideration. The total consideration for the Acquisition shall be an amount
.equal to $4,000,000 and Buyer's assumption of the Assumed Liabilities.
1.4 Assumed Liabilities. . Buyer shall assume on the Closing Date, the performance
.of obligations arising from and after the Closing Date under the Assumed Contracts validly
assigned to Buyer pursuant to the terms of the Agreement, except to the extent any such
obligation is attributable to Seller's breach or failure to comply with the terms of any such
Contracts (collectively, the "Assumed Liabilities").
1.5 Retained Liabilities.
(a) Except as specifically set forth in Section 1.4, Seller retains all
, Liabilities (the "Retained Liabilities"), including but not limited to (i) Liabilities with respect to
the Retained Assets; (ii) any and all employment-related claims, wages, commissions, salaries,
bonus compensation, claims, damages, pending proceedings, awards, vacation pay, paid time off,
sick pay, holiday pay, severance pay, disability benefits or other claims or expenses incurred,
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earned or accrued at any time by all employees or contractors of Seller and its Affiliates and their
dependents and beneficiaries under any employee benefit plan or otherwise; (iii) any Liabilities
arising out of any act or omission of Seller and Seller's operation of the Business or the
Purchased Assets; (iv) all Liabilities arising out of, relating to or otherwise in respect of
obligations under, or a breach or Default of Seller under any Assumed Contract with respect to
any period prior to Closing; (v) all Debt of Seller; (vi) any Liabilities arising out of or related to
any Related Party Contract and (vii) any Liabilities arising or accrued on or before the Closing
Date (other than Liabilities arising in connection with Buyer's operation of the Gas Collection
and Control System pursuant to the terms of Article VI hereof), whether or not disclosed to
Buyer on the schedules hereto, including Liabilities for Taxes and Litigation.
(b) Buyer shall have the right, in its sole discretion, to pay any Retained
Liability without prior notification to Seller and without affecting Buyer's rights hereunder,
including indemnification rights under Article VD.
1.6 Retained Assets. Seller shall not sell, and Buyer shall not acquire and accept,
and the Purchased Assets shall not include:
(a)
(b)
(c)
(d)
Business, if any.
any tax credits of Seller;
any rights that accrue or will accrue to Seller under this Agreement;
the Contracts listed on Schedule 1.6( c ); and
the assets and properties of Seller that are not used in the conduct of the
The assets described in this Section 1.6 are hereinafter collectively referred to as
the "Retained Assets."
1.7 Assignment of Contracts. Notwithstanding anything in this Agreement to the
contrary, this Agreement shall not constitute an agreement to assign any Contract if such
assignment, without the consent of a third party thereto, would constitute a breach or other
contravention of such Contract or .in any way adversely affect the rights of Seller (or Buyer, as
successor in interest to Seller) thereunder. However, Seller shall use its reasonable best efforts,
. and Buyer shall reasonably cooperate with such efforts, to obtain at the earliest practicable date
all Consents of third parties related to the consummation of the transactions contemplated hereby
and will provide to Buyer copies of each such Consent as such Consents are obtained. Seller
"shall be responsible for any reasonable out~of-pocket costs required to obtain the Consents for
the Assumed Contracts. To the extent that the assignment of any such Contracts requires the
Consent of another party that is not obtained prior to the Closing and, if it is a Consent specified
on Schedule 5.J( c) as a Consent Seller must obtain and Buyer elects to waive its right to require
the delivery of such Consent prior to Closing, (i) such Contract will not be transferred or
assigned at Closing and shall constitute a "Deferred Contract"and (ii) Seller will continue to
undertake reasonable best efforts, and Buyer shall reasonably cooperate with such efforts, to
obtain any such Consent and/or remove any other impediments to the transfer or assignment of
such Deferred Contract at the earliest practicable date and shall transfer or assign such Deferred
Contract within three (3) business days after receipt of such Consent. Furthermore, until the time
of assignment of a Deferred ContraCt (each such period, a "Deferred Contract Period"), Seller
shall cooperate with Buyer to provide Buyer all benefits under any such Contract and to allow
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Buyer to perform its obligations under the Assumed Liabilities, to the same extent as if the
Deferred Contract were transferred or assigned to Buyer at Closing. Each Party shall bear its
own administrative expenses incurred in connection with any such arrangement during a
Deferred Contract Period. Until the time of assignment or termination of a Deferred Contract,
Seller shall, at the request and for the account of Buyer, and subject to the Buyer's reasonable
direction, enforce, at the Seller's expense, the Seller's rights thereto or interests therein against
. other parties.
1.8 Bulk Sales Laws. Buyer hereby waives compliance by Seller with the
requirements and provisions of any "bulk-transfer" Laws of any jurisdiction that may otherwise
be applicable with respect to the sale of any or all of the Purchased Assets to Buyer; provided,
that Seller agrees (i) to pay and discharge when due or to contest or litigate all claims of creditors
which are asserted against Buyer or the Purchased Assets by reason of such noncompliance
(other than Assumed Liabilities); (ii) to indemnify, defend and hold harmless Buyer from and
against any and all such claims; and (iii) to take promptly all necessary action to remove any
Lien which is placed on the Purchased Assets by reason of such noncompliance.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer as follows:
2.1 Organization. Standing. and Power. Seller is a limited partnership duly
organized, validly existing, and in good standing under the Laws of the State of Georgia, and has
the power and authority to carry on its business as it has been and is now being conducted and to
own, lease and operate its Assets. Seller is duly qualified or licensed to transact business as a
foreign entity and is in good standing in all jurisdictions where the character of its Assets or the
nature or conduct of its business requires it to be so qualified or licensed.
2.2 . Authorization of Agreement: No Breach.
(a) The execution, delivery and performance of this Agreement has been
duly authorized by all necessary organizational action of Seller. This Agreement constitutes, and
all agreements and other instruments and documents to be executed and delivered by Seller
pursuant to this Agreement will constitute, legal, valid and binding obligations of Seller
enforceable against Seller in accordance with their respective terms. The. execution, delivery and
performance of this Agreement and the agreements and other documents and instruments to be
executed and delivered by Seller pursuant to this Agreement and the consummation of the
transactions contemplated hereby and thereby will not, subject to obtaining the Consents
. identified herein, (i) violate or result in a breach of or Default under the Articles of Incorporation
. .
or bylaws of Seller; (ii) violate any Law or Order applicable to or binding upon Seller or upon its
. ownership interests, the Purchased Assets or the Business; (jji) conflict with or constitute a
Default under any material Contract to which Seller is a party or by which Seller, the Business,
or any of the Purchased Assets is bound; or (iv) create a Lien upon the ownership interests, the
Purchased Assets or the Business of Seller.
2.3 Indebtedness. the transactions contemplated in this Agreement will not result in
any penalty or incurrence of any additional obligation or change of any terms with respect to any
Debt of Seller.
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2.4 Tax Matters.
(a) Seller has timely filed all federal and state income Tax Returns for all
periods which were required to be filed, and such returns are correct and complete in all respects.
No returns so filed have, been subjected to examination or audit by the IRS or any taxing
authority. Seller has not received notice of any Tax claims being asserted or any proposed
assertion of Tax claims or assessment by any taxing authority, and no Tax Returns have been
subjected to examination or audit by theIRS or any other taxing authorities. Seller is not under,
nor has it received notice of any contemplated, investigation or audit by the IRS or any other
taxing authority. There are no Liens as a result of any unpaid Taxes upon any of the assets of
Seller.
(b) Seller has not executed any extension or waivers of any statute of
limitations on the assessment or collection of any tax due that is currently in effect.
2.5 Real and Personal Property.
(a) Except as set forth on Schedule 2.5(a). Seller does not own any real
property nor is Seller a party (whether as lessor or lessee) to any real property leases.
(b) Schedule 2.5(b) identifies all leases for material personal property used
or employed by Seller. Complete and correct copies of such leases have been provided or made
available to Buyer. Each of such leases is in full. force and effect on the date hereof. No Default
under any of the terms or conditions set forth in any of such leases or any document or
instrument related thereto has occurred or been asserted by any Person. The continuation,
validity and effectiveness of such leaSes will not be affected in any way by the transactions
contemplated by this Agreement and Seller (or its assigns) will not be required to make any
payments under such leases as a result of the transactions. contemplated by this Agreement.
Seller does not lease any personal property as lessor.
(c) Seller has good and marketable title to all of the Purchased Assets, free
and clear of all Lien's.
(d) The Purchased Assets include, and on the Closing Date Buyer will own
or have the uncontested right to use, all rights, properties and Assets, free and clear of all Liens,
necessary to carry on the Business as of the Closing Date without interruption and in the ordinary
course of business. The delivery to Buyer of the. instruments of transfer of ownerShip
contemplated by this Purchase Agreement will transfer all of Seller's right, title and interest in
and to the Purchased Assets to Buyer.
2.6 Inventory. Seller has valid, marketable and legal title to aU Purchased Inventory.
Seller is not under any Liability or obligation with respect to the return of any Purchased
. Inventory in the possession of wholesalers, retailers, or other customers. .
2.7 Insurance. A complete and accurate list of all insurance policies maintained by
Seller with respect to the Purchased Assets and the Business and now in force is attached hereto
as Schedule 2.7. and true and correct copies of all such insurance policies have been provided or
made available to Buyer. All such policies are in full force and effect, the premiums due thereon
have been timely paid and Seller is not in Default under and has otherwise complied with the
terms and conditions thereof. Except as set forth on Schedule 2.7. there is no claimby Seller
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pending under any of such policies. The consummation of the transactions contemplated by this
Agreement will not constitute a Default under, or otherwise affect the coverage under, any such
insurance policies.
2.8 Compliance with Laws; Consents Required.
(a) Seller has in effect all Permits necessary for it to own, lease or operate
the Purchased Assets and to carry on its business as now conducted. Except as alleged in the
Lawsuit, to the best of Seller's knowledge, (i) Seller, its employees, agents, or contractors, are
not in violation of any Orders, Permits or Laws applicable, through contract or otherwise, to the
Business, or the Purchased Assets; (ii) no notice or warning from any Regulatory Authority with
respect to any failure or alleged failure of Seller, its employees, agents, or contractors, to comply
with any Law or. Permit has been issued, nor is any. such notice or warning proposed or
threatened; and (iii) Seller is in compliance in all material respects with all Laws applicable,
through contract or otherwise, to the conduct of the Business or the Purchased Assets.
(b) No Consent or approval of, prior filing with or notice to, or other action
by, any Regulatory Authority or any other third party is required in connection with the
execution and delivery of this Agreement or any assignment, agreement or other instrument to be
executed and delivered pursuant to this Agreement by Seller or the consummation of the
transactions provided for herein or therein except for such consents and approvals that have been
obtained and filings, notices and other actions that have been taken or made.
2.9 Environmental Matters. Except as alleged by either Seller or Buyer in the
Lawsuit, to the best of Seller's knowledge, there are no violations of any federal, state or local
Environmental Laws by Seller, its employees, agents, or contractors, related to the ownership,
use, condition, lease or operation of the Business or the Purchased Assets. Seller has not, and
has not permitted any of its employees, agents, or contractors to, store, use, release, discharge, or
deposit on any portion of the Landfill any Hazardous Materials except in accordance with
Buyer's rules and regulations pertaining to the Landfill and all applicable law.
2.10 Litigation and Claims. There are no outstanding Orders or administrative
decisions relatoo to the Purchased Assets or the Business. Other than the Lawsuit, there is no
Litigation pending, threatened against, or relating to Seller or the Purchased Assets or its
Business, and there is no event that has occurred, or any state of facts or occurrence of any event,
other than the Lawsuit, which might give rise to the foregoing.
2.11 Contracts and COmnlitments.
(a) Schedule 2.11 sets forth a true, correct and complete list of all Contracts
to which Seller is a party or by which the Purchased Assets .are bound, all of which have been
made available to Buyer for review. Seller is not a party to (and the Business or Purchased
. Assets are not subject to):
(i) any arrangement, Contract, loan or other transaction with any of
the following Persons, or in which any of the following Persons have any direct or indirect
interest: (i) any employee, contractor, or partner or Affiliate of Seller; (ii) any of the spouses,
parents, siblings, children, aunts, uncles, nieces, nephews, in-laws or grandparents of any of the
persons described in clause (i); or (iii) any corporation, trust, partnership or other entity in which
any of the persons described in clauses (i) or (ii) has a beneficial interest (other than in a
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corporation whose shares are publicly traded and in which such persons own beneficially in the
aggregate no more than 5% of the outstanding equity interest) (any Contract or arrangement
described by the foregoing clause, a "Related Party Contract");
(ii) any Contract not made in the ordinary course of business,
including, but not limited to any Contract containing materially adverse, onerous, burdensome or
restrictive covenants such as covenants not to compete or other agreement which restricts
Seller's ability to engage in any business;
Business; or
(iii) any confidentiality or nondisclosure contract relating to the
(iv) any Contracts, leases, quotas, restrictions or trade conditions
upon which the Business, Purchased Assets, or condition, financial or otherwise, of Seller
substantially depends or that materially affects the Purchased Assets.
(b) (i) each of the Contracts is in full force and effect on the date hereof,
except as the validity of such Contracts may be affected by actions, events or conditions
involving only the other party thereto, none of which actions, events or conditions have occurred
or exist to the knowledge of Seller, (ii) no Default under any of the terms or conditions set forth
in any of the Contracts to which Seller is a party or any document or instrument related thereto
has been asserted by any party or, to the knowledge of Seller, occurred, and (Hi) the continuation,
validity and effectiveness of such Contracts, and all other material terms thereof, will not be
affected by the transactions contemplated by this Agreement.
2.12 Suppliers and Customers. Neither any of the suppliers or customers of Seller has
terminated or, to the knowledge of the Seller, threatened to terminate its relationship with Seller
or has during 'the last twelve (12) months decreased or limited or, to the knowledge of Seller,
threatened to decrease or limit its services, supplies or materials to Seller or its usage or purchase
of the goods or services of Seller, as the case may be.
2.13 Guarantees. Warranties and Discounts. Seller has not given any guarantee,
warranty or discount with respect to any of the products sold or services provided by it, and (b)
Seller is not required to provide any letters of credit, bonds, or other financial security
arrangements in connection with its suppliers or customers~
2.14 Employment. Matters. Seller has not hired any employees, whether engaged in
the Business or otherwise (and shall not hire any employees at any time prior to the Closing
Date). There are no employees of any Affiliate of Seller which are engaged in the Business.
2.15 Accounts Receivable. All accounts receivable outstanding on the Closing Date
that are Purchased Assets will represent, sales actually made or services actually performed in
the ordinary course of business in bona fide transactions completed in accordance with the terms
and provisions contained in any documents relating thereto, and are not subject to any defenses,
counterclaims, or rights of setoff other than those arising in the ordinary course of business, and
are fully collectible.
2.16 Schedules. All Schedules attached hereto are true, correct and complete as of
the date of this Agreement. Matters disclosed on each Schedule shall be deemed disclosed only
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for purposes of the matters to be disclosed on such Schedule and shall not be deemed to be
disclosed for any other purpose unless expressly provided therein.
2.17 Authority to Assign. Seller represents and warrants that it has all legal right,
power and authority to (i) assign the gas sales revenue of Seller to Buyer on the Effective Date as
contemplated by Article VI herein, (ii) transfer all future rights to such gas sales revenue to
Buyer on the Closing Date and (iii) no Person (other than Buyer) has or shall have any right,
claim or entitlement to such gas sales revenue by virtue of any Contract or applicable law in
connection with any act or failure to act by, or on behalf of, Seller.
2.18 Ouality of Assets. The equipment and other tangible assets of the Seller
necessary for the operation of the Business are individually and in the aggregate, structurally
sound, and in a state of repair, reasonable wear and tear and. normal depreciation excepted, and
are adequate for the conduct of the Seller's Business and the uses for which they are being put.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represent and warrant to Seller as follows:
3.1 Organization. Standing. and Power. Buyer is a municipal corporation chartered,
duly organized and. in good standing under the Laws of the state of Georgia and has the power
and authority to carry on its business as it has been and is now being conducted and to own, lease
and operate the Purchased Assets.
3.2 Authorization of Agreement; No Breach. The execution, delivery and
performance of this Agreement have been duly authorized by all necessary corporate action of
Buyer. This Agreement constitutes, and all agreements and other instruments and documents to
be executed and delivered by Buyer pursuant to this Agreement will constitute, legal, valid and
binding obligation of Buyer enforceable against Buyer in accordance with their respective terms.
The execution, delivery and performance of this Agreement and the agreements and other
documents and instruments to be executed and delivered by Buyer pursuant to this Agreement
and the consummation of the transactions contemplated hereby and thereby will not, subject to
obtaining the consents identified herein, (i)violate or result in a breach of or Default under the
governing documents of Buyer; or (ii) violate any Law or Order applicable to or binding upon
Buyer or its ownership interests, the Purchased Assets or business.
ARTICLE IV
ADDITIONAL AGREEMENTS
4.1 Stay of the Lawsuit. On the Effective Date of this Agreement, the Parties
hereby agree to seek a stay of the Lawsuit through and including the Closing Date.
4.2 Mutual Dismissal with Preiudice of the Lawsuit. Effective upon Closing, the
Parties hereby agree to enter into and promptly file with the Clerk of the Superior Court for
Richmond County, Georgia a Mutual Dismissal With Prejudice, substantially in the form of
Exhibit A hereto, mutually dismissing with prejudice and without costs all claims and
counterclaims asserted by and between the Parties in the Lawsuit.
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4.3 Mutual Release. Effective upon Closing, the Parties hereby agree to enter into a
Mutual Release substantially in the form of Exhibit B hereto, releasing each other, their
predecessors, successors, assigns, subsidiaries, affiliates, as well as their past and present
officers, directors, stockholders, commission members, attorneys, agents, representatives,
employees, and successor in interests, of and from any and all known liabilities,. claims,
counterclaims, demands, allegations, actions, causes of action, suits, damages, judgments, costs,
expenses, and obligations, whether in law, equity or otherwise, that the Parties alleged or could
have alleged in the Lawsuit.
4.4 Termination of Gas Lease Agreement. Effective upon Closing, the Parties
hereby agree to enter into that certain agreement providing for the termination of the Gas Lease
Agreement, substantially in the form of Exhibit C hereto (the "Termination of Gas Lease
Agreement"). In the event of any conflict between the terms of this Agreement and the Gas
Lease Agreement, the terms of this Agreement shall control in all respects.
4.5 Retained Liabilities. Seller agrees to pay all Retained Liabilities, subject to its
right to contest such Retained Liabilities in good faith. The provisions of this Section 4.5 shall
survive Closing.
4.6 Transfer Taxes. Buyer shall have no obligation under this Agreement to pay for
any transfer or sales Taxes arising in connection with the consummation of the Acquisition.
4.7 Access to Records. At all times following the Closing, Seller will allow the
officers and authorized representatives of Buyer access upon reasonable notice to all of Seller's
books and records that are retained by Seller as part of the Retained Assets as such parties may
from time to time reasonably request. The provisions of this Section 4.7 shall survive Closing.
4.8 Preserve Accuracy of Representations and Warranties. Seller shall refrain from
taking any action that would render any representation or warranty by Seller contained in this
Agreement inaccurate as of the Closing Date. Seller shall promptly notify Buyer in writing (a) of
any Litigation or Order that shall be instituted or threatened against Seller to restrain, prohibit or
otherwise challenge the legality of any transaction contemplated by this Agreement, (b) of any
development causing a breach of any of the representations and warranties of Seller, or (c) of any
lawsuit, claim, proceeding or investigation that may be threatened, brought, asserted or
commenced against Seller which would have been disclosed if such lawsuit, claim, proceeding or
investigation had arisen prior to the date hereof. No disclosure by Seller pursuant to this Section
4.8. however, shall be deemed to amend or supplement this Agreement or to prevent or cure any
misrepresentation, breach of warranty or breach of covenant therein.
4.9 Consents. Seller shall use its reasonable best efforts to secure, before the
Closing Date, any Consent, approval or waiver, in form and substance reasonably satisfactory to
Buyer, from any party as required to be obtained to assign the Purchased Assets and Assumed
Contracts to Buyer or to otherwise satisfy the conditions set forth herein.
ARTICLE V
CONDITIONS PRECEDENT TO CLOSE
5.1 Buyer's Conditions Precedent to Close. The obligations of Buyer under this
Agreement shall be, at the option of Buyer, subject to the satisfaction of the conditions set forth
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below, on or prior to the Closing Date. These conditions are solely for the benefit of Buyer and
may be waived by Buyer at any time in its sole discretion:
(a) therepresentations and warranties of Seller in Article n shall be true and
correct in all material respects as of the Closing Date (except that those representations and
warranties which are made as of a specific date shall be true and correct only as of such date);
(b) the Seller shall have performed and satisfied in all material respects all
agreements and covenants required hereby to be performed or satisfied by it prior to or at the
Closing Date;
(c) all Consents and waivers reasonably deemed necessary by the Buyer
(including those specifically identified by Buyer on Schedule 5.1(c)), and all filings, registrations
and notifications necessary to permit the consummation of the transactions contemplated by this
Purchase Agreement shall have been obtained or made;
(d) no court order, action or proceeding shall have been instituted or
threatened which makes the transactions contemplated by this Purchase Agreement illegal or
otherwise prohibited or that otherwise materially adversely affects the right or ability of the
Buyer to own, operate or control the Assets or seeks damages in connection therewith;
(e) Buyer shall have received affirmative releases of any Liens relating to
the Purchased Assets; and
(f) Seller shall have made the following closing deliveries to Buyer:
(i) a certificate, dated as of the Closing Date and signed on Seller's
behalf by its chief executive officer and its chief financial officer or such similar position of
authority as appropriate for Seller (and approved by Buyer in its reasonable discretion),
confirming that the conditions set forth in this Article V have been satisfied and confirming that
the terms of Sections 5.Ua) and 5.Hb) are true and correct and (ii) certified copies of resolutions
duly adopted by such Seller's governing body and/or partners, in accordance with applicable law
and Seller's partnership agreement or other governing documents, evidencing,the taking of all
action necessary to authorize the execution, delivery and performance of this Agreement, and the
consummation of the transactions hereby; .
~;
(ii) written Consents of the. third parties identified in Schedule
Seller;
(iii) the Termination of Gas Lease Agreement, duly executed by
(iv) . a Bill of Sale reasonably satisfactory in form and substance to
Buyer and duly executed by Seller;
(v) an Assignment and Assumption Agreement reasonably
satisfactory in form and substance to Buyer and duly executed by Seller;
(vi) a certificate or certificates from all state and foreign taxing
authorities m states in which the Seller conducts operations and any other applicable
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jurisdictions, stating that no sales or use Taxes are due relating to the Business of the Seller or
the Purchased Assets prior to Closing; and
(vii) a Mutual Dismissal with Prejudice of the Lawsuit reasonably
satisfactory in form and substance to Buyer and duly executed by Seller.
5.2 Seller's Conditions Precedent to Close~ The obligations of Seller under this
Agreement shall be, at the option of Seller, subject to the satisfaction of the conditions set forth
below, on or prior to the Closing Date. These conditions are solely for the benefit of Seller and
may be waived by Seller at any time in its sole discretion:
. (a) the representations and warranties of Buyer in Article III shall be true
and correct in all material respects as of the Closing Date (except that those representations and
warranties which are made as of a specific date shall be true and correct only as of such date);
(b) the Buyer shall have performed and satisfied in all material respects all
agreements and covenants required hereby to be performed or satisfied by it prior to or at the
Closing Date;
(c) no court order, action or proceeding shall have been instituted or
threatened which makes the transactions contemplated by this Purchase Agreement illegal. or
otherwise prohibited or that otherwise materially adversely affects the right or ability of the
Buyer to own, operate or control the Assets or seeks damages in connection therewith; and .
(d) Buyer shall have made the following closing deliveries to Seller:
(i) a certificate, dated as of the Closing Date and signed on Buyer's
behalf by its chief executive officer and its chief financial officer or such similar position of
authority as appropriate for Buyer (and approved by Seller in its reasonable discretion),
confirming that the conditions set forth in this Article V have been satisfied and confirming that
the terms of Sections 5.2(a) and 5.2(b) are tnie and correct and (ii) certified copies of resolutions
duly adopted by such Buyer's governing body in accordance with applicable law and Buyer's
governing documents, evidencing the taking of all action necessary to authorize the execution,
delivery and performance of this Agreement, and the consummation of the transactions hereby;
Buyer;
(ii) the Termination of Gas Lease Agreement, duly executed by
(iii) the Bill of Sale, duly executed by Buyer;
Buyer;
(iv) the Assignment and Assumption Agreement duly executed by
(v) immediately available funds in the amount described in Section
1.3; and
(vi) a Mutual Dismissal with Prejudice of the Lawsuit reasonably
satisfactory in form and substance to Seller and duly executed by Buyer.
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ARTICLE VI
INTERIM OPERATIONS
6.1 Buyer's Interim Operations. Notwithstanding anything to the contrary in the
Gas Lease Agreement, from the Effective Date through and including the Closing Date (the
"Interim Operations Period"), Buyer shall have the exclusive right to perform the following: (i)
extract, gather, process, take, use, transport, and sell any and all Landfill Gas that may be
produced at the Landfill; (ii) operate, maintain, repair, replace, expand, and modifY Seller's Gas
Collection and Control System; and (iii) take any.other actions incident to the performance of the
Interim Operations (collectively, the "Interim Operations"). Buyer shall be solely responsible for
all costs and expenses associated with the Interim Operations incurred during the Interim
Operations Period.
6.2 Commencement of Interim Operations. Buyer shall commence the Interim
Operations within seven (7) days of obtaining the insurance coverage required by Section 6.5
hereunder. Seller shall cooperate with Buyer to effectuate a smooth transition of operations
from Seller to Buyer during the Interim Operations Period. If the transaction contemplated by
this Agreement fails to close on the Closing Date, then Seller may resume operations in
accordance with the parties' Gas Lease Agreement within fourteen (14) days of the Closing Date
or of any other event causing the Closing not to occur, whichever shall come first. In such an
event, Buyer shall cooperate with Seller to effectuate a smooth transition of operations from
Buyer to Seller. This provision shall not be considered a waiver of either Party's additional
rights or remedies in the event of a breach of this Agreement.
6.3 Interim Assignment of Landfill Gas Sales Agreement. During the Interim
Operations, Seller hereby assigns to Buyer any and all rights to gas sales revenue, including,
without limitation, any rights to gas sales revenue arising under that certain Landfill Gas Sales
Agreement entered into by and between Seller and United Catalyst, Inc. (now know as Unimin
Corporation) on or about December 19, 1996, as amended from time to time (the "Gas Sales
Agreement"). Seller represents and warrants that it has all legal right, power and authority to
assign the gas sales revenue of Seller to Buyer as contemplated by this Article VI and, as of the
date hereof, no Person (other than Buyer) has or shall have any right, claim or entitlement to such
gas sales revenue. During the Interim Operations Period, Buyer shall assume responsibility for
rendering invoices to Unimin Corporation for delivered Landfill Gas in accordance with Article
IV of the Gas Sales Agreement, and any invoice rendered to Unimin Corporation during the
Interim Operations Period shall specify that full payment demanded in the invoice shall be made
to Buyer. Buyer agrees to contemporaneously submit a copy to Seller of each invoice submitted
to Unimin Corporation in accordance with the notice provisions in Section 7.7 of this Agreement.
6.4 Consents for Interim Operations. Prior to the date hereof, Seller has obtained
and delivered to Buyer any Consents or approvals required to effect the assignment of gas sales
revenue to Buyer as contemplated by this Article VI, including, but not limited to, all Consents or
approvals required under8ny Contract or applicable Law.
6.5 Insurance. Prior to commencing the Interim Operations, Buyer shall procure,
and maintain in force during the term of the . Interim. Operations, at its own expense, a
Commercial General Liability Insurance policy (occurrence form) with an Environmental
Impairment Liability Coverage Endorsement (claims made). The policy shall include a general
aggregate limit in the amount of $10,000,000 and shall be endorsed to include Seller as an
additional insured.
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6.6 Risk of Loss During Interim Operations Period. During Buyer's performance of
the Interim Operations, in the event all or any portion of the Gas Collection and Control System
is damaged or destroyed by whatever cause, then Buyer may elect to either: (i) collect all
proceeds due Buyer under the insurance policies required to be maintained pursuant to Section
6.5 of this Agreement; or (ii) terminate this Agreement, and neither Buyer nor Seller shall have
any further liabilities, obligations or rights with regard to this Agreement; provided, however,
that if Buyer elects to terminate this Agreement pursuant to this Section 6.6, it shall pay to Seller
all proceeds due Buyer under the insurance policies required to be maintained pursuant to
Section 6.5 of this Agreement.
ARTICLE VII
MISCELLANEOUS
7.1 Definitions.
(a) Except as otherwise provided herein, the capitalized terms set forth
below shall have the following meanings:
"Affiliate" of a Person shall mean: (i) any other Person directly, or indirectly
through one or more intermediaries, controlling, controlled by or under common control with
such Person; (ii) any officer, director, partner, employer, or direct or indirect beneficial owner of
any 10% or greater equity or voting interest of such Person; or (iii) any other Person for which a
Person described in clause (ii) acts in any such capacity.
"Assets" of a Person shall mean all of the assets, properties, businesses and
rights of such Person and its Subsidiaries of every kind, nature, character and description,
whether real, personal or mixed, tangible or intangible, accrued or contingent, including without
limitation any assets relating to or utilized in such Person's business, directly or indirectly, in
whole or in part, whether or not carried on the books and records of such Person, and whether or
not owned in the name of such Person or any Affiliate of such Person and wherever located.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and the
rules and regulations promulgated thereunder.
"Consent" shall mean any consent, approval, authorization, clearance,
exemption, waiver, or similar affirmation by any Person pursuant to any Contract, Law, Order, or
Permit.
"Contract" shall mean any written or oral agreement, arrangement, authorization,
commitment, contract, indenture, instrument, lease, license, obligation, option, plan, practice,
restriction, understanding or undertaking of any kind or character, or other document to which
any Person is a party or that is binding on any Person or its capital stock, Assets or business.
"Debt" shall mean any obligation of Seller, or any obligation guaranteed by
Seller, for the repayment of borrowed money, whether or not evidenced by bonds, debentures,
notes or other written instruments, and any deferred obligation of Seller. for the payment of the
purchase price of property or assets (excluding trade accounts payable).
"Default" shall mean (i) any breach or violation of or default under any Contract,
Order or Permit, (ii) any occurrence of any event that with the passage of time or the giving of
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notice or both would constitute a breach or violation of or default under any Contract, Order or
Permit, or (iii) any occurrence of any event that with or without the passage of time or the giving
of notice would give rise to a right to terminate or revoke, change the current terms of, or
renegotiate, or to accelerate, increase, or impose any Liability under, any Contract, Order or
Permit.
Agreement.
"Effective Date" shall mean the date of signature of the last signatory to the
"Environmental Laws" shall mean all Laws relating to pollution or protection of
human health or the environment (including ambient air, surface water, ground water, land
surface or subsurface strata), including, without limitation, the Clean Air Act, as amended, 42
V.S.C. ~~ 7401 et seq., the Clean Water Act, as amended, 33 V.S.C. ~~ 1251 et seq., the
Comprehensive Environmental Response Compensation and Liability Act, as amended, 42
V.S.C. ~~ 9601 et seq., the Resource Conservation and Recovery Act, as amended, 42 V.S.C. ~~
6901 et seq., the Georgia Air Quality Act, as amended, a.C.G.A. ~~ 12-9-1 et seq., the Georgia
Solid Waste Management Act, as amended, O.C.G.A. .~~ 12-8-20 et seq., the Georgia Hazardous
Waste Management Act, as amended, O.C.G.A. ~~ 12-8-60 et seq., the Georgia Water Quality
Control Act, as amended, a.c.G.A. ~~ 12-5-20 et seq., and other Laws relating to emissions,
discharges, releases or threatened releases of any Hazardous Materials, or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal, transport or f1andling
of any Hazardous Materials.
"Exhibits" shall mean the Exhibits so marked, copies of which are attached to
this Agreement. Such Exhibits are hereby incorporated by reference herein and made a part
hereof, and may be referred to in this Agreement and any other related instrument or document
without being attached hereto. .
"Hazardous Materials" shall mean any oil or other petroleum products which are
hazardous or toxic under any Environment Laws, radioactive materials, asbestos in any form that
is likely to become friable, urea formaldehyde foam insulation, polychlorinated biphenyls and
radon gas; (ii) any materials chemicals or substances defined as or included in the definition of
"hazardous substances," "hazardous waste," "hazardous materials," "extremely hazardous
wastes," "restricted hazardous wastes," "toxic substances," "toxic pollutants," "contaminants" or
words of similar import under applicable Environmental Laws; and (iii) any other material or
substance that by'its nature arid use is subject to regulation or control under any Environmental
Laws.
"IRS" shall mean the United States Internal Revenue Service.
"Law" shall mean any code, law (including common law), ordinance, regulation,
reporting or licensing requirement, rule, or statute applicable to ~Person or its Assets, capital
stock or other securities, Liabilities or business, including those promulgated, interpreted or
enforced by any Regulatory Authority.
. .
"Liability" shall mean any direct or indirect, primary or secondary, liability,
Debt, obligation, penalty, cost or expense (including costs of investigation,. collection and
defense), claim, deficiency, guaranty or endorsement of or by any. Person (other than
endorsements of notes, bills, checks, and drafts presented for collection or deposit in the ordinary
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course of business) of any type, whether accrued, absolute or contingent, liquidated or
unliquidated, matured or unmatured, or otherwise.
"Lien" shall mean any conditional sale agreement, default of title, easement,
encroachment, encumbrance, hypothecation, infringement, lien, mortgage, pledge, reservation,
restriction, security interest, title retention or other security arrangement, or any adverse right or
interest, charge, or claim of any nature whatsoever of, on, or with respect to any Asset, other than
Liens for current property Taxes not yet due and payable.
"Litigation" shall mean any action, suit, arbitration, cause of action, claim, com-
plaint, criminal prosecution, demand letter, governmental or other examination or investigation,
hearing, inquiry, administrative or other proceeding, or notice (written or oral) by any Person
alleging potential Liability or requesting information relating to or affecting a Party, its business,
its Assets (including Contracts related to it), or the transactions contemplated by this Agreement.
"Loss" shall mean any direct or indirect demand, claim, payment or failure to
receive payment, obligation, action or cause of action, assessment, loss, liability, damage,
diminution in value, cost or expense, including without limitation, penalties, interest on any
amount payable to a third party as a result of the foregoing, and any legal or other expense
reasonably incurred in connection with investigating or defending any claim or action, whether
or not resulting in any liability.
"Order" shall mean any administrative notice, decision or award, decree,
injunction, judgment, order, quasi-judicial decision or award, ruling, or writ of any federal, state,
local or foreign or other court, arbitrator, mediator, tribunal, administrative agency or Regulatory
Authority.
"Permit" shall mean any federal, state, local, and foreign governmental approval,
authorization, certificate, easement, filing, franchise, license, notice, permit, or right to which
any Person is a party or that is or may be binding upon or inure to the benefit of any Person or its
securities or other ownership interests, Assets or business.
"Person" shall mean a natural person or any legal, commercial or governmental
entity, such as, but not limited to, a corporation, general partnership, joint venture, limited
partnership, limited liability company, trust, business association, group acting in concert, or any
person acting in a representative capacity.
"Regulatory. Authorities" shall mean, collectively, all federal, state and local
regulatory agencies, authorities or other entities having jurisdiction over any Party and its
respective Subsidiaries.
"Schedules" shall mean the Schedules so marked, copies of which are attached
. to this Agreement. Such Schedules are hereby incorporated by reference herein and made a part
hereof, and may. be referred to in this Agreement and any other related instrument or document
without being attached hereto.
"Tax" or "Taxes" shall mean any federal, state, county, local, or foreign taxes,
charges, fees, levies, imposts, duties, or other assessments, including income, gross receipts,
excise, employment, sales, use, transfer, license, payroll, franchise, severance, stamp,
occupation, windfall profits, environmental, federal highway use, commercial rent, customs
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duties, capital stock, paid-up capital, profits, withholding, Social Security, single business and
unemployment, disability, real property,'personal property, registration, ad valorem, value added,
alternative or add-on minimum, estimated, or other tax or governmental fee of any kind
whatsoever, imposed or required to be withheld by the United States or any state, county, local or
foreign government or subdivision or agency thereof, including any interest, penalties, and
additions imposed thereon or with respect thereto, and including any transferee or secondary
liability in respect of any tax (whether imposed by law, contractual agreement or otherwise) and
any liability in respect of any tax as a result of being a member of any affiliated, consolidated,
combined, unitary or similar group.
"Tax Return" means any return, declaration, report, statement and other
document required to be filed in respect of Taxes, and any claims for refunds of Taxes, including
and any amendments or supplements to any of the foregoing.
(b) Any singular term in this Agreement shall be deemed to include the
plural, and any plural term the singular. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed followed by the words "without
limitation."
7.2 Expenses. Except as otherwise expressly provided herein, each of the parties
hereto shall bear and pay all costs and expenses incurred by it or on its behalf in connection with
the transactions contemplated hereunder.
7.3 Entire Agreement. Except as otherwise expressly provided herein, this
Agreement (including the documents and instruments referred to herein) constitutes the entire
agreement between the Parties with respect to the transactions contemplated hereunder and
supersedes all prior arrangements or understandings with respect thereto, written or oral.
Nothing in this Agreement, expressed or implied, is intended to confer upon any Person, other
than the Parties or their respective successors, any rights, remedies, obligations, or liabilities
under or by reason of this Agreement.
7.4 Amendments. To the extent permitted by Law, this Agreement may be amended
by a subsequent writing signed by each of the Parties.
7.5 Waivers. The failure of any Party at any time or times to require performance of
any provision hereof shall in no manner atfectthe right of such Party at a later time to enforce
the same or any other provision of this Agreement. No claim or right arising out of this
Agreement or the documents referred to in this Agreement can be discharged by one Party, in
whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the
other Parties. No waiver of any condition or of the breach of any term contained in this
Agreement in one or more instances shall be deemed to be or construed as a further or continuing
waiver of such condition or breach or a waiver of any other condition or of the breach of any
other term of this Agreement. .
7.6 Assignment. Except as expressly contemplated hereby, neither this Agreement
nor any of the rights, interests or obligations hereunder shall be assigned by any Party hereto
(whether by operation of Law or otherwise) without the prior written consent of the other Parties;
provided, that Buyer may assign its rights hereunder to an Affiliate or as collateral under any of
its lending arrangements without consent. Subject to the preceding sentence, this Agreement will
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be binding upon, inure to the benefit of and be enforceable by the Parties and their respective
successors and assigns.
7.7 Notices. All notices or other communications which are required or permitted
hereunder shall be in writing and sufficient if delivered by hand, by facsimile transmission, by
registered or certified mail, postage pre-paid, or by courier or overnight carrier, to the persons at
the addresses set forth below (or at such other address as may be provided hereunder), and shall
be deemed to have been delivered as of the date so delivered:
Seller:
Mr. David S. O'Neill
LandGas of Georgia Limited Partnership
5487 N. Milwaukee Avenue
Chicago, Illinois 60630-1249
Facsimile: (773) 792-8358
Copy to Seller's Counsel:
Wendell E. Johnston, Jr., Esq.
Johnston, Wilkin & Williams
P. O. Box 211509
Augusta, Georgia 30917-1509
Facsimile: (706) 855-0994
Buyer:
Mr. Mark Johnson
Director of Solid Waste
Augusta, Georgia
4330 Deans Bridge Road
Blythe, Georgia 30805
Facsimile: (706) 592-1658
Copy to Buyer's Counsel:
David Meezan, Esq.
Alston & Bird LLP
One Atlantic Center
120 1 West Peachtree Street
Atlanta, Georgia 30309-3424
Facsimile: (404) 881-7777
Stephen E. Shepard
Shepard, Plunkett, Hamilton, Boudreaux & Tisdale, LLP
701 Greene Street, Suite 104
Augusta, Georgia 30901-2322
Facsimile: (706) 722-4817
7.8 Governing Law~.Resolution of Disputes. This Agreement shall be governed by
and construed in accordance with the Laws of the State of Georgia, applied without regard to its
laws applicable to choice of law. In the event of any dispute between the Parties related to the
subject matter of this Agreement, appropriate representatives of Buyer and Seller, in each ,case
authorized with authority to resolve such disputes, shall meet and negotiate in good faith to reach
a satisfactory resolution to. any dispute arising in connection with this Agreement. If such
negotiations do not result in a resolution within five (5) calendar days after the first meeting of
such representatives, then, at the election of either Buyer or Seller, any dispute, claim or
18
Execution Copy
controversy artsmg under this Agreement or in any way related to this Agreement, or its
interpretation, enforceability or inapplicability will be submitted to non-binding mediation
conducted by F. Carlton King, Esq., or, in the event that he is unavailable, another mediator
mutually acceptable to the Parties. If the Parties are unable to resolve their dispute through
mediation, then the Parties shall have the right to resolve their dispute through litigation brought
in the Superior Court of Richmond County, Georgia.
7.9 Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of which together shall constitute one
and the same instrument.
7.10 Captions. The captions contained in this Agreement are for reference purposes
only and are not part of this Agreement.
7.11 Specific Performance. Notwithstanding anything herein to the contrary, the
Parties hereto agree that irreparable damage would occur in the event that any of the provisions
of this. Agreement was not performed in accordance with its specific terms or was otherwise
breached. It is accordingly agreed that the Parties shall be entitled to an injunction or injunctions
to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof
in any court of the United States or any state having jurisdiction, this being in addition to any
other remedy to which they are entitled at law or in equity.
7.12 Severability. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such
invalidity or unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so
broad as to be unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
7.13 Further Assurances. Each Party covenants that at any time, and from time to
time, after the ClOSing Date, without additional consideration, it will execute such additional
instruments and take such actions as maybe reasonably requested by the other Parties to confirm
or perfect or otherwise to carry out the intent and purposes of this Agreement.
7.14 No Partnership. Nothing contained in this Agreement shall be construed to
create any association, trust, partnership, or joint venture or impose a trust or partnership, duty,
obligation, or liability or an agency relationship on, or with regard to, either party. Neither party
hereto shall have the right to bind or obligate the other in any way or manner unless otherwise
provided for herein.
7.15 No Construction Against Drafters. No provision of this Agreement shall be
construed against or interpreted to the disadvantage of any Party by any court or other
governmental or judicial authority by reason of such party's having or being deemed to have
drafted, prepared or imposed such provision.
[Signature Block on Following Page]
19
.;.
Execution Copy
IN WITNESS WHEREOF, each of the Parties has executed or caused this Agreement to
be executed on its behalf and its seal to be hereuntoafilxed and attested by officers thereunto. as
applicable.
AUGUSTA,GEORGIA
By: U-~4. (r-
a- Name: DAVID S. CO~HAVER
~ Title: Jj ~
. A_, v4t1f~
~Name: {e;rI#~-r: B'~)/I/e~ .
Title: Qr;v1'l df U~ ff~
LANDGASOF GEORGIA LIMITED.
PARTNERSHIP
By:
. ()~ v4J1
t...". f.'" CHL , /.(
Name:
Title: /'1.ANA<L'fl. J C"i!.#bJItl..'/JA:1H'NL.'Jl
/
20
v
IN THE SUPERIOR COURT OF RICHMOND COUNTY
STATE OF GEORGIA
AUGUST A, GEORGIA alkla
AUGUSTA-RICHMOND COUNTY
GEORGIA,
Plaintiff,
)
)
)
)
)
)
)
)
)
)
)
Civil Action No.
2005-RCCV -643
Judge Carl C. Brown, Jr.
v.
LANDGAS OF ,GEORGIA, LP
Defendant.
STIPULATED DISMISSAL ORDER
COME NOW, Plaintiff Augusta, Georgia and Defendant LandGas of Georgia LP, by and
through their respective counsel, and, pursuant to O.C.G.A. 9-11-4I(a) and (c), do hereby
. mutually dismiss with preiudice all claims and counterclaims asserted by and between them in
the above-styled action. Each party agrees to bear its or his own costs of litigation.
This Stipulated Dismissal Order shall not affect any rights and obligations between the
Parties arising under the agreements entered by the Parties to resolve the above-styled matter,
including, without limitation, the Parties' December 2 I, 2007 Asset Purchase Agreement;
, .
January 4. 2008, Assignment and Assumption Agreement; January 4, 2008 Bill of Sale; January
4, 2008 Termination of Gas Lease and Easement Agreement; and January 28, 2008 Withholding
Agreement.
Dated: February 20, 2008.
[Signature Block on Following Page]
LEGAL02I3069375) v I
VI . Meezan
Georgia Bar No. 500882
Peter M. Degnan
Georgia Bar No.2 I 6 150
ALSTON & BIRD, LLP
One Atlantic Center
.1201 West Peachtree Street
Atlanta, Georgia 30309
Phone: (404) 881-7000
Fax: (404) 881-7777
Stephen E. Shepard
Georgia Bar No. 64 I 050
SHEPARD, PLUNKETT, HAMILTON,
BOUDREAUX & TISDALE, LLP
701 Greene Street, Suite 104
Augusta, Georgia 30901-2322
Phone: (706) 724-6597
Fax: (706) 722-4817
COUNSEL FOR DEFENDANT:
~ C. :;b~r.
Wendell E. Johnston, Jr.
Georgia Bar No. 397005
By David M Meezan with express
permission
William J. Williams
Georgia Bar No. 764800
JOHNSTON, WILKIN & WILLIAMS
P. O. Box 21 )509
. Augusta, Georgia 30917-1509
Phone: (706) 860- I 952
Fax: (706) 855-0994
. IT IS SO ORDERED, thisJl.atday of ~? 2008.
. ~..R-L~~-
Carl C. Brown, Jr., Judge
Superior Court of Richmond County
LEGAL02/3069375I v I
-2-
v/
MUTUAL RELEASE
TillS MUTUAL RELEASE (this "Mutual Release") is made and entered into as of the
Effective Date, by and between LandGas of Georgia Limited Partnership ("LandGas") and
Augusta, Georgia, a political subdivision of the state of Georgia ("Augusta"). LandGas and
Augusta are hereinafter sometimes collectively referred to as the "Parties," and each of them is
hereinafter sometimes individually referred to as "Party."
RECITALS
WHEREAS, Seller and Buyer are parties to that certain Gas Lease and. Easement
Agreement, dated November 4~ 1996 and Addenda entered into in July 2000 and September
2003 (the "Gas Lease Agreement");
WHEREAS, Augusta commenced a lawsuit in the Superior Court of Richmond County
Georgia styled as Augusta, Georgia v. LandGas of Georgia, LP, Civil Action No. 2005-RCCV-
643 (the "Lawsuit"), alleging claims against LandGas for, inter alia, breach of the Gas Lease
Agreement; and
WHEREAS, LandGas asserted certain counterclaims against Augusta in the Lawsuit;
WHEREAS, LandGas denies the allegations asserted by Augusta in the Lawsuit, and
denies any and all liability or responsibility for the claims that Augusta alleges; and
WHEREAS, Augusta denies the allegations asserted by LandGas in the Lawsuit, and
denies any and all liability or responsibility for the counterclaims that LandGas alleges; and
WHEREAS, the parties participated in mediation on February 7,2007 and March 5,2007
in an attempt to resolve the Lawsuit; and
WHEREAS, the Parties reached a settlement in principle during mediation pursuant to
which the Parties desire to enter into this Mutual Release.
NOW, THEREFORE, in consideration of the above and the mutual warranties,
representations, covenants and agreements set forth herein, the mutual promises set forth below
and for other good and valuable consideration, the receipt and sufficiency of which the Parties
hereto acknowledge, the Parties agree as follows:
1. Mutual Releases Bv and Among the Parties. The Parties hereby completely release,
acquit and forever discharge each other, their predecessors,. successors, assigns, subsidiaries,
affiliates, as well as their past and present officers, commissioners, directors, stockholders,
attorneys, agents, representatives, employees, successors, and assigns of all of the foregoing of
and from any an,d all past, present, or future claims, counterclaims, demands, allegations, actio~s,
causes of action, suits, damages, judgments, costs, expenses, attorney's fees, obligations and
liabilities whatsoever, whether in law, equity or otherwise (collectively "Claims") that were
alleged or could have been alleged in the Lawsuit. The Parties further agree that this discharge
shall be deemed, and is in fact, a complete release and not merely a covenant not to. sue.
-1-
Mutual Release - Execution Copy.
Notwithstanding the foregoing, this release does not discharge or release the Parties from claims
for breach of this Mutual Release.
2. Authority. The Parties warrant and represent to each other that the undersigned
representatives have full and complete authority to execute this Mutual Release and bind them to
the terms thereof. The Parties hereto further warrant and represent, each to the other, that the
Parties, through their respective counsel, have negotiated this Mutual.Release and that each Party
has voluntarily executed it after consulting counsel of their own choosing.
3. Ownership of Claims. The parties warrant and represent to each other that they have not
made any assignment or transfer of any Claims covered by this Mutual Release, and that they are
the sole and absolute legal and equitable owners of all thereof.
4. No Admission of Liability. The Parties acknowledge and agree that this Mutual Release
is intended to compromise, settle, and resolve disputed claims for the purpose of avoiding the
expenses and uncertainty of litigation. Each Party denies liability of any kind, including, without
limitation, any liability to any federal, state or local agency or other third party under any federal,
state or local laws, rules or regulations, and each denies that it is in violation of or has violated
any laws, rules or regulations. Neither this Mutual Release nor any of its terms, covenants, or
conditions shall be offered or received in evidence in any proceeding or utilized in any manner
whatsoever as an admission of any wrongdoing or liability on the part of any Party, provided,
however, that nothing in this Paragraph is intended or should be construed to bar the enforcement
of any term or condition of this Mutual Release by the Parties against each other.
5. No Waiver. The provisions of this Mutual Release may not be changed, discharged,
terminated, altered or waived orally, but only by an instrument in writing signed by the Parties
hereto. The failure by any party to enforce its rights under this Mutual Release on any occasion
shall not operate as or be deemed to be a waiver of any future enforcement or exercise of such
rights.
6. Successors and Assigns, This Mutual Release has been carefully and fully read by the
parties and their counsel. No Party has relied upon the representations of any other party to this
Mutual Release except as stated in this Mutual Release. The parties to this Mutual Release are
satisfied with the terms and conditions contained in this Mutual Release; understand the contents
of this Mutual Release; have signed this Mutual Release of their own free will and action; and
understand that this Mutual Release shall be binding upon and inure to the benefit of the Parties
hereto, their respective successors in interest and assigns, subsidiaries and affiliated corporations,
their past, present and future officers, directors, stockholders, commissioners, employees and
agents and their respective heirs, executors, administrators, agents, and other legal
representatives.
7. Attorneys Fees and Costs. Each Party shall bear its own costs and expenses, including,
without limitation, all attorneys' fees and costs arising from the actions of its own counselor
consultants in connection with the Lawsuit, this Mutual Release, and all matters referred to
herein.
-2-
Mutual. Release - Execution Copy
8. Governing Law. This Mutual Release is to be governed and construed in accordance
with the laws of the State of Georgia, applied without regard to its laws applicable to choice of
law.
9. Multiple Counterparts. This Mutual Release may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which constitute one and the same Mutual
Release.
IN WITNESS WHEREOF, each of the Parties has executed or caused this Mutual
Release to be executed on its behalf and its seal to. be hereunto affIxed and attested by officers
thereunto, as applicable.
AUGUSTA, GEORGIA
~~~t:
By: ....
Name: - . :,. ~ ~4/)vo/
,3~ . Title:. J1j ~ rY
Date: {J L( ( ? IJ 2- <c
Attem: -db;f}j~
Name: tctl//I-Y J'tf;Y~b~
~fA:::: w;;~~T?Jh
LANDGAS OF
PARTNERSHIP
GEORGIA
LIMITED
By:
Name:
Title:
Date:
-3-
Mutual Release - Execution Copy
8. Governing Law. This Mutual Release is to be governed and construed. in accordance
with the laws of the State of Georgia, applied without regard to its laws applicable to choice of
law.
9. Multiple Counterparts. This Mutual Release may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which constitute one and the same Mutual
Release.
IN WITNESS WHEREOF, each of the Parties has executed or caused this Mutual
Release to be executed on its behalf and its seal to be hereunto affixed and attested by officers
thereunto, as applicable.
AUGUSTA, GEORGIA
By:
Name:
Title:
Date:
Attest:
Name:
Title:
Date:
LANDGAS OF
PARTNERSHIP
GEORGIA
LIMITED
By: ~?-?d O;PJ/
Name: ~/JV/J (' O.~/L(
Title: ,/o/tJ'?,dAr /~ J ~L.dfi"7JL7{ ?~/.J~"
~ - /
(,.
Date: '-:;7A.i/(/~~y ~ 100'/
-3-
/
TERMINATION OF GAS LEASE AND EASEMENT AGREEMENT
THIS TERMINATION OF GAS LEASE AND EASEMENT AGREEMENT (this
"Termination") is made as of the date of signature of the last signatory to this Termination (the
"Effective Date"), by and between Augusta, Georgia, a political subdivision of the state of
Georgia ("Lessor"), and LandGas of Georgia Limited Partnership ("Lessee"). Lessor and Lessee
are hereinafter sometimes collectively referred to as the "Parties," and each ofthem is hereinafter
sometimes individually referred to as "Party."
WHEREAS, Lessor and Lessee are parties to that certain Gas Lease and Easement
Agreement, dated November 4, 1996 and Addenda entered into in July 2000 and September
2003 (the "Gas Lease Agreement");
WHEREAS, Lessor and Lessee. now desire to terminate the Gas Lease Agreement
pursuant and subject to the terms and provisions of this Termination.
NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, Lessor and Lessee agree as follows:
1. Termination of Gas Lease Agreement. Subject only to those terms and provisions set
forth in this Termination, the Gas Lease Agreement is terminated effective as of the Effective
Date.
2. Survival. Those provisions of the Gas Lease Agreement that, by their own terms or
pursuant to any survival provisions of the Gas Lease Agreement, are to survive the termination
of the Gas Lease Agreement shall so survive.
3. Miscellaneous. Each Party hereto represents and warrants that they each have read and
understand the entire content of this Termination. Further, each Party hereto represents,
warrants, covenants, and acknowledges that it has the power to execute and deliver this
Termination and that they have secured all necessary authorizations for the execution and
delivery of this Termination including, but not limited to, all necessary corporate approvals and
consents. This Termination shall be governed by and construed in accordance with the Laws of
the State of Georgia, applied without regard to its laws applicable to choice of law. This
Termination may be executed in two or more counterparts, each of which shall be deemed to be
an original,.but all of which together shall constitute one and the same instrument.
[Signatures Appear on Next Page]
-1-
Termination of Gas Lease and Easement Agreement - Execution Copy
IN WITNESS WHEREOF, each of the Parties has executed or caused this Termination to
be executed on its behalf and its seal to be hereunto affixed and attested by officers thereunto, as
applicable.
AUGUSTA, GEORGIA
By: C~ d4.y
~b Name:~';) ~ ~(Y1.~
Title: klltJ 0/
Date: ---.:1( <( (2 lfU Lf'
Attest: c/JJ;9J~
~~r Name: l y If! /J
~ Title: Owh 0 f GVtc-, ir.........
Date: I/r;/;;jll .
LANDGAS OF
PARTNERSHIP
GEORGIA
LIMITED
By:
Name:
Title:
Date:
-2-
Termination of Gas Lease and Easement Agreement - Execution Copy
IN WITNESS WHEREOF, each of the Parties has executed or caused this Termination to
be executed on its behalf and its seal to be hereunto affixed and attested by officers thereunto, as
applicable.
AUGUSTA, GEORGIA
By:
Name:
Title:
Date:
Attest:
Name:
Title:
Date:
LANDGAS OF
PARTNERSHIP
GEORGIA
LIMITED
By:
~~ O)p.//
"?)~VrlJ S. 0 .~/ L (
Name:
Title: ftJ ~ AlA < L".;tJ CL" AI ~~ ?..a'/l'f" M:"q
/. .
Date: ;:::!;?AfY Ai7)v -tt 200 ;5'.
-2-
Execution Copy /
Schedule 1.6(c)
Excluded Contracts
[Please list any Contracts which are related to the Business but which Seller proposes
should not be transferred with the Purchased Assets]
None
28
Execution Copy
Schedule 2.5(a)
Real Property
[Please list all Real Property which Seller owns or for which Seller is Lessor or Lessee.]
None
29
Execution Copy
Schedule 2.5(b)
Personal Propertv
[Please list any all leases for material personal property used or employed by Seller. Note that
complete and correct copies of any such leases are to be provided or made available to Buyer.]
None
30
Execution Copy
Schedule 2.7
Insurance
[Please provide a complete and accurate list of all insurance policies maintained by Seller with
respect to the Purchased Assets and the Business and now in force is and effect. Please provide
true and correct copies of all such insurance policies to Buyer. Schedule any claim by Seller
pending under any of such policies.]
1. Commercial General Liability Insurance provided by Zurich American
Insurance Company of Illinois.
2. Follow Form Excess Liability Insurance provided by Steadfast Insurance
Company.
3. Contractor's Pollution Liability Insurance provided by Steadfast Insurance
Company.
No claims pending
31
Schedule 2.11
Contracts and Commitments
Execution Copy
{Please list all Contracts to which Seller is a party or by which the Purchased Assets are bound. Please
designate whether the consent of any third party or parties to such Contracts is required in order to
transfer the rights under such Contracts to Buyer pursuant to the Acquisition. Note that copies of all such
Contracts are to be made available to Buyer for review.]
None
32
Execution Copy
Schedule S.I(e)
Consents
[Please list all Contracts for which Seller must obtain the Consent of a third party or parties to such
Contracts in order to transfer the rights under such Contracts to Buyer pursuant to the Acquisition. Note
that copies of all such Contracts are to be made available to Buyer for review.]
None
33
/
BILL OF SALE
THIS BILL OF SALE (this "Bill of Sale") is made and entered into this 4th day of January, 2008
by LandGas of Georgia Limited Partnership ("Seller") with respect to the conveyance of certain
assets by Seller to Augusta, Georgia, a political subdivision of the state of Georgia ("Buyer")
pursuant to that certain Asset Purchase Agreement dated as of December 21,2007 (the "Purchase
Agreement"), by and among Seller and Buyer. This Bill of Sale is executed and delivered in
connection with the Purchase Agreement, and all terms not defined herein shall have the same
meanings as in the Purchase Agreement.
I. Sale and Transfer of Assets. For good and valuable consideration, the receipt,
adequacy and legal sufficiency of which are hereby acknowledged, Seller hereby sells, transfers,
assigns, conveys, grants and delivers to Buyer, effective as of II :00 a.m. (Eastern time) on
January 4, 2008 (the "Effective Time"), all of Seller's right, title and interest in and to all of the
Purchased Assets, free and clear of all Liens.
2. Further Actions. If subsequent to the date hereof any property that is part of the
Purchased Assets comes into the possession of Seller, Seller shall promptly deliver the same to
Buyer, at Seller's expense, and if such property is in the fonn of checks, drafts or other
negotiable instruments, Seller shall promptly endorse the same to Buyer. Seller covenants ~nd
agrees to warrant and defend the sale, transfer, assignment, conveyance, grant and delivery of the
Purchased Assets hereby made against all persons whomsoever, to take all steps reasonably
necessary to establish the record of Buyer's title to the Purchased Assets and, at the request of
Buyer, to execute and deliver (or cause to be executed and delivered) further instruments of
transfer and assignment and take such other action as Buyer may reasonably request to more
effectively transfer and assign to and vest in Buyer each of the Purchased Assets, all at the sole
cost and expense of Seller.
3. Power of Attorney. Without limiting Section 2 hereof, Seller hereby constitutes
and appoints Buyer and its successors and assigns the true and lawful agent and attorney in fact
of Seller, with full power of substitution and resubstitution, in whole or in part, in the name and
stead of Seller but on behalf and for the benefit of Buyer and its successors and assigns, from
time to time:
(a) to demand, receive and collect any and all of the Purchased' Assets and to give
receipts and releases for and with respect to the same, or any part thereof; .
(b) to institute and prosecute, in the name of Seller. or otherwise, any and all
proceedings at law, in equity or otherwise, that Buyer or its successors and
assigns may deem proper in order to collect or reduce to possession any of the
Purchased Assets and in order to collect or enforce any claim or right of any kind
hereby assigned or transferred, or intended so to be; and
(c) to do all things legally permissible, required or reasonably deemed by Buyer to be
required.to recover and collect the Purchased Assets and to use Seller's name in
Bill of Sale - Execution Copy
such manner as Buyer may reasonably deem necessary for the collection and
recovery of same,
Seller hereby declares that the foregoing powers are coupled with an interest and are and shall be
irrevocable by Seller.
4. Terms of the Purchase Agreement. Seller acknowledges and agrees that the
representations, warranties, covenants, agreements and indemnities contained in the Purchase
Agreement shall not be superseded hereby but shall remain in full force and effect to the full
extent provided therein. In the event of any conflict or inconsistency between the terms of the
Purchase Agreement and the terms hereof, the terms of the Purchase Agreement shall govern.
5. Notices. All notices or other communications or deliveries provided for under
this Bill of Sale shall be given as provided in the Purchase Agreement.
6. Binding Effect; Assignment. This Bill of Sale and all of the provisions hereof
shall be binding upon and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
7. Governing Law. This Bill of Sale shall be governed by and construed in
accordance with the Laws of the State of Georgia, applied without regard to its laws applicable
to choice of law.
8. Counterparts. This Bill of Sale maybe executed in two or more counterparts
(including by means of telecopied signature pages) each of which shall be deemed to be an
original, but all of which together shall constitute one and the same agreement.
[Signatures Appear on Next Page)
2
Bill of Sale - Execution Copy
IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of the day and year
first above written.
LANDGAS OF GEORGIA LIMITED
PARTNERSHIP
By:
Name:
Title:
ACKNOWLEDGED BY BUYER:
AUGUSTA, GEORGIA
By: cYdd€; ~
)fH- Name: j)~1! s: __"- - .py-
Title: ~ q{'
Attest:
Name:
Title: ClOctf'1 df G~td;v~
3
Bill of Sale - Execution Copy
IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of the day and year
first above written.
LANDGAS OF GEORGIA LIMITED
PARTNERSHIP
By: /It-(/ O!fd/
Name: '"]),4 Y /2J S. 0 . AI ~ I (. (
Title: /J1/1d~LL7I e/J UAhL;UIF /A~...df-;A.
/
ACKNOWLEDGED BY BUYER:
AUGUSTA, GEORGIA
By:
Name:
Title:
Attest:
Name:
Title:
3
v/
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (the "Assignment and Assumption
Agreement") is made and entered into this 4th day of January, 2008, by and among LandGasof
Georgia Limited Partnership ("Assignor") and Augusta, Georgia, a political subdivision of the
state of Georgia ("Assignee").
WHEREAS, Assignor and Assignee are parties to that certain Asset Purchase Agreement
dated as of December 21, 2007 (the "Purchase Agreement") by and among Assignor and
Assignee, pursuant to which Assignee has purchased certain assets of Assignor; and
WHEREAS, pursuant to the Purchase Agreement, Assignor has agreed to assign certain
rights and agreements to Assignee, and Assignee has agreed to assume certain obligations of
Assignor, as set forth herein;
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt, adequacy and legal
sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:
I. Capitalized Terms. Capitalized terms used but not defined herein shall have the
meanings for such terms that are set forth in the Purchase Agreement.
2. Assignment and Assumption. Effective as of II :00 a.m. (Eastern time) on
January 4, 2008 (the "Effective Time"), Assignor hereby assigns, sells, transfers and sets over
(collectively, the "Assignment") to Assignee all of Assignor's right, title, benefit, privileges and
interest in and to, and all of Assignor's burdens, obligations and liabilities in connection with,
each of the Assumed Liabilities. Assignee hereby accepts the Assignment and assumes and
agrees to observe and perform all of the duties, obligations, terms, provisions and covenants, and
to pay and discharge all of the liabilities of Assignor to be observed, performed, paid or
discharged from and after the Closing, in connection with the Assumed Liabilities. Assignee
assumes no Retained Liabilities, and the parties hereto agree that all such Retained Liabilities
shall remain the sole responsibility of Assignor.
3. Terms of the Purchase Agreement. Assignor acknowledges and agrees that the
representations, warranties, covenants, agreements and indemnities contained in the Purchase
Agreement shall not be superseded hereby but shall remain in full force and effect to the full
extent provided therein. In the event of any conflict or inconsistency between the terms of the
Purchase Agreement and the terms hereof, the terms of the Purchase Agreement shall govern and
control.
4. Further Actions. Each of the parties hereto covenants and agrees, at its own
expense, to execute and deliver, at the request of the other party hereto, such further instruments
of transfer and assignment and to take such other action as such other party may reasonably
request to more effectively consummate the assignments and assumptions contemplated by this
Assignment and Assumption Agreement.
- 1 -
Assignment and Assumption Agreement - Execution Copy
5. Notices. All notices or other communications or deliveries provided for under
this Assignment and Assumption Agreement shall be given as provided in the Purchase
Agreement.
6. Binding Effect Assignment. This Assignment and Assumption Agreement and
all of the provisions hereof shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
7. Governing Law. This Assignment and Assumption Agreement shall be governed
by and construed in accordance with the Laws of the State of Georgia, applied without regard to .
its laws applicable to choice of law.
8. Counterparts. This Assignment and Assumption Agreement may be executed in
two or more counterparts (including by means of telecopied signature pages) each of which shall
be deemed to be an original, but all of which together shall constitute one and the same
agreement.
9. Amendments. No amendment of any prOVISIon of this Assignment and
Assumption Agreement shall be valid unless the same shall be in writing and signed by Assignor
and Assignee.
[Signatures Appear on Next Page]
-2-
Assignment and Assumption Agreement - Execution Copy
IN WITNESS WHEREOF, the parties have executed this Assignment and Assumption
Agreement as of the day and year first above written.
LANDGAS OF GEORGIA LIMITED
P ARTNERSillP
By:
Name:
Title:
AUGUSTA, GEORGIA
By:
v
)Q Name:
Title: ~ 0./
Atte~:c4b;q/fflA)
Name:ilf/flf {r fffJ;t/Jt/~//
Title: qo.v h (j J.- . Co~..1 S;....J
-3-
Assignment and Assumption Agreement - Execution Copy
IN WITNESS WHEREOF, the parties have executed this Assignment and Assumption
Agreement as of the day and year first above written.
LANDGAS OF GEORGIA LIMITED
P ARTNERSmp
By:
#~ o.:p-t'
::2)..a v I) S. 0 'AI k J l (
Name:
Title: /J.l,4/./AfJf/1 s/J U.dh'JIt;, })A7l";/.//';?
/
AUGUSTA, GEORGIA
By:
Name:
Title:
Attest:
Name:
Title:
-3-
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LANDGAS OF GEORGIA LIMITED PARTNERSHIP
Closing Certificate
The undersigned, David S. O'Neill, Manager of the General Partner of LandGas of
Georgia Limited Partnership, a Georgia limited partnership ("Seller"), hereby certifies, pursuant
to Section 5.I(t) of the Asset Purchase Agreement, dated December 21, 2007 (the "Purchase
Agreement"), as follows:
1.
satisfied;
the conditions set forth in Article V of the Purchase Agreement have been
2. each of the representations and warranties of Seller contained in the Purchase
Agreement is true and correct in all material respects on the date of this Certificate (except those
representations and warranties that are made as of a specific date); and
3. Seller has performed and satisfied in all material respects all agreements and
covenants required under the Purchase Agreement to be performed or satisfied by it prior to or at
the Closing Date.
IN WITNESS WHEREOF, I have hereunto signed my name as of January 4,2008.
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D vid . O'Neill
Manager of General Partner
AUGUSTA, GEORGIA
Closing Certificate
The undersigned, David S. Copenhaver, Mayor of Augusta, Georgia, a political
subdivision of the state of Georgia ("Buyer"), hereby certifies, pursuant to Section 5.2( d) of the
Asset Purchase Agreement, dated December 21, 2007 (the "Purchase Agreement"), as follows:
1.
satisfied;
the conditions set forth in Article V of the Purchase Agreement have been
2. each of the representations and warranties of Buyer contained in the Purchase
Agreement is true and correct in all material respects onthe date of this Certificate (except those
representations and warranties that are made as ofa specific date); and
3. Buyer has performed and satisfied in all material respects all agreements and
covenants required under the Purchase Agreement to be performed or satisfied by it prior to or at
the Closing Date.
IN WITNESS WHEREOF, 1 have hereunto signed my name as of January 4, 2008.
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David S. Copen
Mayor
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WITHHOLDING AGREEMENT
THIS WITHHOLDING AGREEMENT (this "AJreement''), is made and entered into as
of this ~ ~ day of January, 2008, by and between LandOas of Georgia Limited Parlnership, a
Georgia limited partnership ("~, and.~ {)eorgja, a political subdivision of the state
of Georgia ("Buye('). Buyer and Seller are each hereinafter sometimes referred to herein as a
'~ and, colleCtively, as the "Parti~." CapitaJizedteims used but not otherwise defined in
this Agreement shall have the meat.'l;ngs ascnDed to such terms in the Asset Purchase Agreement,
which is hereby incorporated herein by reference.
RECI'f ALS
WHEREAS, Jluyer and Seller are parties to that certain Asset Purchase Agreement (the
"Asset PnrchA~ A~~ made and entered i:p.to as of the Effective Date, pursuant to which,
among other things, Buyer will purchase from Seller the B1Jsiness and the Purchased Assets (the
c. Acgui~onj;
WHBRBAS, as a condition to the Closing of the Acquisition, Seller is obli8a~ pursuant
to Section 5.1(f)(vl) of the Asset Purchase Agreement, to deliver to Buyer a Oeorgia tax
clettr8110e certificate .stating that . Seller does not owe any Georgia sales or use taxes relating to the
Business of the Seller or to the Purchased Assets with respeCt to any taxable period (or portion
thereof) ending on or.before the Closing Date (such certificate hereinafter referred to as the "Tax
Certificate", such Oeorgia sales and use taxes hereinafter referred to as the "S~,llet ~~.., and.
such condition to the Closing of the Acquisitlonhercinafter referred to as the "Closing
Conditionj; .
WHEREAS, Seller has been unable to obtain the Tax Certificate in aatisfaction of the
Closing Condition, which has prevented Seller and Buyer from closing the Acquisition; .
.
. WHBRBAS, the PJ1rties have agreed to close the Acquisition upon the terms and
conditions provided below.
NOW, TIIBREFORE~ in consideration of the above recitals, premises. and the mutual
promises and.agreenients contained herCin, the Partiea hereto~ Intending to be legally bo~
hereby agree as follows:
AGREEMENT
1.
Simultaneously with the execution of'this Agreenrent, the Parties agree to close the
Acquisition in accordance with the terms of the Asset Purchase Agreement, proVided
however, that (i) Seller sm.n not, be required to provide Buyer the Tax Certificate at
the Closing and (n) Buyer shall pay to Seller the amount of the cash consideration as
set forth in Section 1.3 of the Asset Purehase Agreement less Two-Million-Donars
($2,000,000) (the "Withheld Am9Jmf,). BUyer shall retain any intetest earned on the
Wltbheld Amount. It is the intention of the p~ that the Withheld Amount being
retained by Buyer is in SfUistMtion of the requirements of O.C.O.A. ~ 48-8-46, and
Buyer is authorized and entitled to operate the Purchased Assets in accordance with
Title 48 of the Official Code of Georgia.
2. Subject to Section 3 below, Buyer shall retain and not make payment of theWitbb.eld
Amount to Seller until one of the following conditions (each a .~l~ Co~dition")
is satisfied:
a. Seller provides Buyer with the Tax Certificate, 01'
b. All Georgia state and local sales and Use tax liabili1ies of the Se1ler relating to the
Business of the Soller or to. the Purchased Assets with respect to all taxable
periods (or portions thereof) ending on or prior to the Closing Date have been
resolved to the satisfilction of the Buyer, as Buyer shall. determine in its sole
discretion and wbichdetem1ination Buyer sha1lnot unreasonably withhold.
.
3.1 Prior to the satisfaction of a Release Condition, if Buyer receives an assessment,
demand for payment or ~ notice of liability for any Seller Taxes (an
"Assessmenf'), Buyer shall. notify Seller of such Assessment within seven (7)
calendar days of receipt. Sellet shall notify Buyer within seven (7) calendar days of
receipt from Buyer of such notice as to oneol the fo11owiJ1g options: (i) Seller
chooses not to dispute. appeal or protest the Assessment C'Option l~,.or (ii) Seller
chooses to have Buyer dispute, .appeal or protest the Assessment at Seller's sole
expense, under the direction and. control of Seller, and with counsel chosen.by Seller
("Ootion 2"). If Seller choo:a option 1, then Buyer is authorized and entitled to
release an amount from theWitbheld Amountsufticlent to satisfy such Assessmen~
including any penalties and interest related thereto. If Seller chooses Option 2, them
Seller sball either (a) payout (lflts ownt\mds the amount of Seller Taxes, including
penalties and interest related thereto, tinally determined to be due or (b) direct Buyer
to release from the Withheld Amount an atnount sufficient to satisfy ~ Seller Taxes,
including pena1ti~ andinterestre1ated ~t finally detemunecl to be due. I( for
any reason, Seller fails totbnelynotifY Buyer of its election of either Option 1 or
Option 2 in accordance' with the provisions of this .Sect1on 3.1, then Buyer is
authorized and entitled to release enammmt .from the Withheld AmoUnt aufficient to
satisfY such Assessment, Including any pc11IIlties and intereshelated thereto.
3.2 Prior to the satisfaetion of a Release ConditiOn, if Seller receives an"Assessment for
any Seller Tues, Seller may in its aolc discretion. determine whether to dispute,
appeal or protest the Assessment Seller tnay direct Buyer to release from the
Withheld Ammmt aIlamoUilt sufficient to satisfy the seIler Taxes, including penalties
and interest related thereto,:6na1ly ~ to be due. .
4. Within fifteen (IS) b'Qsiness days following satist8ction of a Release Condition, Buyer
shall pay toSeUer the Withheld Amount less any interest earned thereon, less any
amounts released by Buyer pursuant to Section 3, and 1essany amounts shown on any
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Aesessment received by Buyer that have not been finally resolved. under Section 3 (the
"Withheld Balance").
5. This Agreement shall tenni"Oate upon the later of (i) Buyer's payment to Seller of the
Withheld Balance or (ii) final resolution of all Assessments pursuant to Section 4.
6. In the event that Seller has not satisfied a Release Condition before 5:00 p.m. Eastern
Standard Time on Friday, Ianuary 23, 2009, then Augusta shall be authorlzed at1d
enti~ free and clear of any claim or lien ofSellcr, to use or apply ~ of the Withheld
Amount remAi'Oing to resolve, in whole or in part, any actuQI or potential Georgia state
and local sales and. use tax liabilities associated with the Seller Taxes, including, without
liD1itation, any peoal1ies QIld interest relatod thereto. Within fifteen (15) business days
following the final resolUtion of any such tax liabilities, which final resolution shall be.
determined to the satisfaction of the Buyer in .its sole discretion, BUyer sbaU pay to Seller
any of the Withheld Amount renlainif\g thereafter, less any interest earned thereon.
7. Miscellaneous.
a. ~. Except as otherwise expressly provided herein. each of the parties
hereto shall.~ and pay all costs and ~ incmred by it or on its behalf
in connection with the transactions contemplated hereunder. . .
b. Entire AlttcemCDt. - Except as . otherwise expressly provided herein, this
Agreement fmcl'ucUng the documents and lnBtruments referred to herein)
eonstitutesthe entire agreement. between the Parties with respect to th8
transactions contemPlated. hereunder and. supe:nedes all prior arrangements or
under81andings with respect thereto, written or oral. Nothing in this
Agreemcut, expressed or implied; is intended to confer upon any Person, other
than the Parties or their respective successors. any rights, remedies,
obligations, or liabilities under or by.reasm1 oftbis Agreement. .
o. Amendments. To the extent permitted byLaw, ibis Agreement may be
. amended by. a sul)$equent writing Biped by each of the Parties.
d.)Yaivers.The ftdlutc of either Party. at any time or times to. require
performance of any. provision hereof shall in DO nw:lDet affect.. the tight of
S\K:h Party at a later time to enforce the same 01 any other provimon of this
Agreement. No claim ot right arising oUt of this Agreement or the documents
referred to in this Agreement can bediscbarged by one Party, in whole or in
part,bya Wliiver or renunciation of the claim or right UJ1less..h:1 writi~ signed
by the otherPIttly. No waiver ofimy eond1ti()J1 or of the bmachof any term
con1ainedin this Agreement in one or more inStances shall be deemed lobe or
. construed as a furtber or continuing waiver of such condition or breaCh ora
waiver of any other condition or of the breach of any other teim of this
Agreement.
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c. Assi~ent. Except as expressly contmnplated hereby, neither this
Agreement nor any of therigbts, interests or obligations hereunder shall be
assigned by either Party hereto (whether by operation of Law or otherwise)
without the prior written consent of the other Party. Any atttmpted assignntent
or 1mnsfer without such consent shall be null, void and without effect. Subjeot
to the precedu,g sentences, this Agreement will be binding upon, inure to the.
~t of and be enforceable by the Parties .and their respective successors
. and assigns.
f. Notices. All notices or other cormnunications which are required or permitted
hereunder shall be in writing and sufficient if delivered by hand, by facsimile
trallfro1lAAioD, by registered or certifIed mall, postage pre-paid, or 1>Y courier or
overnight cattier (e.g., UPS or PedEx), to the persons at the addresses set fortll
below (or at such other address as may be provided hereunder), and ehalJ. be
deemed to have been delivered as of the date so delivered:
Buyer:
Seller: Mr. David S. O'Neill
LandOas ofOeorgia Limited Partnership
5487 N. Mllwaukee Avenue
Chicago, DIinois 60630-1249
Facsimile: (773) 792~8358
Copy to Seller's Counsel: . Wendell E. Jo!mston, Jr., Esq.
Johnston, W1Udn & Williams
P. O. Box 211509
Au~ Georgia 30917..1509
FacshDne: (706) 855..0994
Mr. Mark Johnson
Director of Solid Waste
Augusta, Oeotgia
. 4330 D~Brldge Road
Blythe, Georgia 30805
Facshiille: (106) 592..1658
Copy to Buyers Counsel: Da.vid Meezan, Esq.
Alston &; Bhd LLP
One Atlantic Center
1201 West Peachtree Street
Atl~ Georgia 30309-3424
Facsimile: (404) 881-7777
Stephen E.Shepard . . .
Shepard, Plunkett, Hamilton, Boudreaux & Tisdale, LLP
701 Greene Street, Suite 104
Augusta, Georgia 30901-2322
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Fac.~mile: (706) 7224817
g. Ooverqlflg Law: R~lutioD of Difij)utes: Arbitration. This Agreement shall
be governed by and cons1n1ed in accordance with the Laws of the State of
Georgia, applied without.regard to its laws applicable to ohoice of law. In the
event of any dtspute .between the Parties related to the subject matter of this
Agreement, apprUPliate representatives of BUyer and Seller, in each ca:Ie
authorized with authority to resolve such disputes, 8haU meet and negotiate in
aood taith 10 reach a satistactory resolution to any dispute arising In
conncotion with this Agreement. If such negotiations do not result in a
resolution within five (5) calendar days after the fitst meeting of such
representatives, theD, at the election of either Buyer or Seller. any dispute,
clahn or contr()vetSy arising under this Agreement or in any way related to
this Agreement, or its hrterpretatiOIl, enforceability or inapplicability shall be
tlettled by final and binding arbitration conducted by F. Carlton King, Esq., or,
in. the event that he is. UDavailable, another arbitrator mutually acceptable to
the Parties. Any award. rendered by the arbitrator maybe enteredln any oourt
having jurisdiction theteot: The provisions of this Section' 6(g) shall not be
deemed to preo1udc either. Party hereto from seeking preHmi"ary injunctive or
other equitable.reliefto protect or enforce its rights hereunder, or to prohibit
any couit .from making preJjroh)~ findings of.fact in oonnection with
granting or denying such prelimin9{y injunctive or other equitable rellef
pending arbitration, or to preclude either Party hereto from ~n"g permanentrinjunctive or other equitable relief after and inacoordance with the decision of
the arbitrator. Nothing herein shall be construed to mean that any decision of
the Qrbitrator is subject to judioial review or appeal, .and the Parties b.eteby
waive any and. all rights. of judicial appeal or review, on any ground
whatsoever. The Parties sball each._ their own costs of.any arbitration
(including, without limitation, any attorneys' and experts' fees).
h. Colmtew~ This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of which together
sball constitute one and the same instrument.
i. C~ons.Thc c8ptions. contained in this. Agreement are for referenCe
purposes only 8J1d.are not part of this Agreement.
j. Specljic Performance. Notwithstanding anything herein to the CQlltrary, the
PPltie:s hereto agree that ~le datrnlge would occur in the event that any
of the provisions of this Agreement was not perfonned in accordance with.its
specific teJ:1:ns or was otherwise breached. It . is accordingly ag1Wd that the
Parties shall be .eotitled. to an injunction or injunctions to. prevent breaches of.
this Agreement and to enforce. specifically the terms andprovisiODS hereotJn
any court oftbe United States or any state having jurisdiction, this. beiJig in
addition to any other remedy to which they are entitled at law or in equity.
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&tate of 8eoqfa
.epartn~nt of J.\tbmut
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l\.dmIb Cax Iltrit
IMdtt 8238
1800 t:entafP .lbb.~ .fie
au.......... 30345.;3205
(404) 411" 6645
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Febmary7,2008
Mr. David S. O~eitl
" Maaagef of1he <JeneqJ Partner
LaadGas ofGeolgia LP
S487 NodIa Milwanbe Aveonc
~ DIinois 66030-1249
RE: Sales &; Use Tax Oeamnce Certificate
LandGas ofGeotgia LP
CI#:30S.21464-3
Dear Ml'. O'Neill:
The Departmeat.of Revmm~ Tupayer Servicx$ DivWoa, hereby ~es tbBt"the records. ~ at 1800 Ca:dmy
Call<< Blvd., AtIabIa, Georgia. have been nmewcct ad the above captioned taxpayer bas made monthly, 8oDDll8l 0(
quartaiy sales _.h~ tax mums and, if appJicabIe, paymenm. tbMugh ~-ber- 31, 2007.
This c:ertiIicam wiD relieve a purchaser of said bbsiness.of all sales and use tax liability doe by tonner owner prioc 10
Decabber 31,2001, but win ootwaiva'. saoctiou or retieve seller 1ioln sales and use tiiX6abilily daeto 1IJIn:ported
sales 0( fmJdqleut n:tums filed.
If yon have aD.y addiCiooal questiCPI cxmcerniDa dUsmalta',. you may cooJad me at 404-t 17.(;645 between the booB
Qf7:00.... to 3:30 pm EST, Moaday throu,gh Friday. or anai1 me at Mon::tta.Fahie@dor.p.~.
this CJeanm.oe bu been resean::ht.d ancl verified by Mmata D. F~ as oftbis FebnJaly 7, 2008.
.~~ U.~^rJ.J
JJ.~P~
Rm:dae Scc:tion Supervisor 1
WSImdf
.C4'Ild~ldt.,~
IN THE SUPERIOR COURT OF RICHMOND COUNTY.
STATE OF GEORGIA
AUGUST A, GEORGIA a/kIa
AUGUST A-RICHMOND COUNTY
GEORGIA,
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Civil Action No.
200S-RCCV -643
Judge Carl C. Brown, Jr.
Plaintiff,
v.
. LANDGAS OF GEORGIA, LP
Defendant.
STIPULATED DISMISSAL ORDER
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COME NOW, Plaintiff Augusta, Georgia and Defendant LandGas of Georgia LP, by and
through their respective counsel, and, pursuant to O.C.G.A. 9-11-4I(a) and (c), do hereby
mutually dismiss with prejudice all claims and counterclaims asserted by and between them in
the above-styled action. Each party agrees to bear its or his own costs of litigation.
This Stipulated Dismissal Order shall not affect any rights and obligations between the
Parties arising under the agreements entered by the Parties to resolve the above-styled matter,
including, without limitation; the Parties' December 21, 2007 Asset Purchase Agreement;
January 4~ 2008, Assignment ~d Assumption Agreement;. January 4, 2008 Bill of Sale; January
4, 2008 Termination of Gas Lease and ~ement Agreement; and January 28, 2008 Withholding
Agreement.
Dated: February 20, 2008.
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[Signature B/{Jck on FollQw}ng ~ag~]
LEGAL02I30693751v1
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VI . Meezan
Georgia Bar No. 500882
Peter M. Degnan
Georgia Bar No. 216 I 50
ALSTON & BIRD, LLP
One Atlantic Center
120 I West Peachtree Street
Atl~nta,{Jeorgia 30309
Phone: (404) 881-7000
Fax: (404) 881-7777
Stephen E. Shepard
Georgia Bar No. 641050
SHEPARD, PLUNKETT, HAMILTON,
BOUDREAUX & TISDALE, LLP
701 Greene Street, Suite 104
Augusta, Georgia 30901-2322
Phone: (706) 724-6597
Fax: (706) 722-4817
COUNSEL FOR DEFENDANT:
~ C. ~Jr.
Wendell E. Johnston, Jr.
Georgia Bar No. 397005
By David M Meezan with express
permission
William J. Williams
Georgia Bar No. 764800
JOHNSTON, WILKIN & WILLIAMS
P.O. Box 2 U509
Augusta, Georgia 30917-1509
Phone: (706) 860-1952
Fax: (706) 855-0994
IT IS SO ORDERED, thisJlptday of ~?2008.
~.. 2-C ~~-
. Carl C. Brown, Jr., Judge
Superi~r Court <?f 19~~on.d. Cour~ty
LEGAL02l30693751 v I
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k. Severabiliv. Any tenn or pro1lision of tbia Agreement which is invalid ot
unenforceable in any jurisdiction shall, u to that jurisdiction, be ineffective to
the extent of such inva1idity or uncnforceability without rendering invalid or
unenforceable the remstm;ng terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or jttOvisions oftbis
Agreement in any other jurisdiction. If any provision oftbiS Agreement is so
broad as to be unenforceable. the provision ahaU be interpreted to be only SO
broad as is enforceable. .
I. Fm1her Assurances. Each Party covenants that at any time. and from time to
time, after the Closing Date, without additional consideration, it will execute .
such additic:mal iDstrUments and take suoh actions as may be reasonably
requested by the otl1er Parties to confirm or perfect or othetwise to carry out
the intent and pmposes of this Agreement.
In. Nq P~R, Nothing contained in this Agreement shall be construed to
.. creaw 8n.y association, trust, parlnei'shiPt or joint venture or impose a trust.or
parlnership, duty, obligatioD, or llability or an agency relationsJiip on. or with
regard to, either party, Neither party hereto shall have the right to bind or
obligate the other in any way or manner unless otherwise provided for herein.
l1- No ConstIpctionAgI};nstDrafters. No provision of this Agreement shall be
constnied.agah1st or interpreted to the disadvantage of any party by any court
or other govermnental or judicial authority by reason of such party'shavh1gor
being deemed to have drafted, prepared or imposed such provision.
[Signature Block on Following Page)
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IN WITNESS WHEREOF, each of the Parties has executed or causedthls Agreement to
be executed on its .bebalf and its seal to be hereunto affixed and attested by officers thereunto, as
applicable.
AUGUSTA, GEORGIA
By: rf-.:M -f -
. ~ Name: "'YAv;rJ> S. C()re"'~r#t.;t.f-
Title:
LANDGM OF GEORGIA LIMITED
PARTNERSHIP.
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By: ~~ o)JwtJ
Name:J>AVI.) f. (J'~t'(t.( ,
TItle: /.
./JI,QNA~st/(~IfNk- ?~?"N~~
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