HomeMy WebLinkAboutexhibit-Acceptance of AssignmentACCEPTANCE OF ASSIGNMENT
This agreement ("Acceptance of Assignment") is entered into , 2004,
but effective as of June 27, 2002, between the City of Miami, a municipal corporation of the
State of Florida ("City") and Absolute Management Corporation.
RECITALS
WHEREAS, the City of Miami issued Request for Qualifications No. 98-99-171 ("RFQ")
for towing services ("Services") to be provided for the City; and
WHEREAS, on March 9, 2000, pursuant to the teiuis and conditions contained in the
RFQ, the City Commission via Resolution No. 00-213, authorized the City to award a contract to
Southwest Transport Inc. dlbla "Southland the Towing Company" ("Southwest"); and
WHEREAS, Southwest and the City entered into a City of Miami Towing/Wrecker
Agreement ("Agreement") on May 3, 2000 for Southwest to provide such Services; and
WHEREAS, both the RFQ and the Agreement contained nonassignment and
nondeligability provisions stating that the Agreement shall not be transferred, conveyed,
disposed of, assigned or delegated without the City's prior written consent; and
WHEREAS, beginning May 30, 2002, Southwest began negotiations to transfer its stock
and assets to Absolute Management Corporation; and
WHEREAS, on June 27, 2002, the City Commission, via Resolution No. 02-738,
approved the transfer of ownership of Southwest originally owned by Miller Industries, to
"Southwest Transport, Inc. d/b/a Absolute Transfer, Inc." owned by Peter Hernandez, Manuel
Marano and Roberto Mureidas; and
WHEREAS, the Southwest's officers resigned effective December 30, 2002, upon the
acquisition of the outstanding shares of the stock by Absolute Management Corporation; and
WHEREAS, on , the City Commission, via Resolution No.
approved this Acceptance of Assignment with Absolute Management Corporation, the actual
purchaser of the Southwest's stock and assets.
NOW, THEREFORE, in consideration of the mutual covenants and promises herein
contained, the City and Absolute Management Corporation agree as follows:
TERMS:
1, RECITALS: The recitals herein are true and correct and are hereby incorporated into
and made a part of this Acceptance of Assignment.
K02-397
2. CITY'S CONSENT: The City hereby acknowledges and consents to the assignment of
the Agreement between the City and Southwest to Absolute Management Corporation for the
provision of towing services contingent upon:
(1)
Absolute's compliance with all requirements set forth in the Agreement; and
(2) Absolute's compliance with Chapter 42, Article V, of the Code of the City of
Miami, Florida, as amended; and
(3)
proof of execution of an assignment between Southland and Absolute, in a form
acceptable to the City Attorney, which is attached hereto and incorporated by
reference as Attachment A; and
(4) execution of this Acceptance of Assignment.
3. ABSOLUTE'S ACCEPTANCE: By execution of this Acceptance of Assignment,
Absolute agrees to the teinis, conditions and provisions contained in the Agreement and
contained herein
4. NOTICES: All notices or other communications required under this Agreement shall
be in writing and shall be given by hand -delivery or by registered or certified U.S. Mail, return
receipt requested, addressed to the other party at the address indicated herein or to such other
address as a party may designate by notice given as herein provided. Notice shall be deemed
given on the day on which personally delivered; or, if by mail, on the fifth day after being posted
or the date of actual receipt, whichever is earlier.
To Absolute
Manuel Marono
Absolute Management Corporation
1759 Palm Avenue
Hialeah, Florida 33010
To the City
Joe Arriola, City Manager
City of Miami
3500 Pan American Drive
Miami, FL 33133
With copies to:
Alejandro Vilarello, City Attorney
City of Miami
444 SW 2"'d Avenue, Suite 945
Miami, Florida 33130
5. GOVERNING CONDITIONS: All remaining terms of the Agreement, not specifically
changed herein, and any amendment or addendum thereto, shall remain in full force and effect
through the extended terra.
2
IN WITNESS WHEREOF, the parties hereto have caused the Amendment and
Extension to be executed by their respective officials thereunto duly authorized, this the day and
year above written.
Peter Hernandez
Title:
ATTEST:
Priscilla A. Thompson
City Clerk
"Absolute"
ATTEST:
Absolute Management Corporation
Manuel Marono
President
"City"
CITY OF MIAMI,
a municipal corporation
Joe Arriola
City Manager
APPROVED AS TO FORM AND APPROVED AS TO INSURANCE
CORRECTNESS: REQUIREMENTS:
Alejandro Vilarello Dania Carillo
City Attorney Risk Management Administrator
L:1EWright\Contracts12002\K02-00397 AbsoluteTowing\Assignment.doc
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Attachment A
Proof of assignment from
Southwest Transport Inc. d/b/a Southland the Towing Company
owned by Miller Industries to Absolute Management Corporation
1
MILLER INDUSTRIES, INC.
SALE
OF
CAPITAL STOCK
OF
SOUTHWEST TRANSPORT, INC.
TO
ABSOLUTE MANAGEMENT CORPORATION
May 31, 2002
December 30, 2002
ATLLIBOI 149113E8.1
Closing Documents
Document Tab
Stock Purchase, Management and Lease Agreement 1
Bill of Sale and Assignment 2
Amendment to Stock Purchase, Management and Lease Agreement 3
Officer's Certificate 4
CIT Pay -down Letter 5
Bank of America Release Agreement 6
Stock Certificate of Southwest Transport, Inc. for 500 Shares of Stock and
Irrevocable Stock Power 7
Resignations of Officers and Directors 8
ATLLIBO 11491818.1
1
2
;3
4
s
t1
STOCK PURCHASE, MANAGEMENT AND LEASE AGREEMENT
THIS STOCK PURCHASE, MANAGEMENT AND LEAS AGREEMENT (the
"Agreement") is made and entered into as of the 3 ( day of , 2002, by and
between ABSOLUTE MANAGEMENT CORPORATION, a larida corporation
("Purchaser"), and ROAD ONE, INC., a Delaware corporation (the "Company").
WITNESSETH:
WHEREAS, currently the Company owns all of the issued and outstanding shares of
SOUTHWEST TRANSPORT, INC., a Florida corporation (hereinafter referred to as the
"Subsidiary");
WHEREAS, the Subsidiary is engaged, among other things, in providing towing and
recovery services (collectively, the "Business");
WHEREAS, the Subsidiary desires to lease to Purchaser, and Purchaser desires to lease
from the Subsidiary, certain assets of the Company set forth on Schedule A hereto (the "Leased
Assets"), upon the terms and conditions contained herein;
WHEREAS, subject to the terms and conditions contained herein, the Company desires
to sell and transfer to Purchaser, and Purchaser desires to acquire from the Company all of the
issued and outstanding shares of capital stock of the Subsidiary; and
WHEREAS, pending the Closing (as defined herein) of the sale of the shares, the
Company and the Subsidiary desire to engage Purchaser to provide certain services with respect
to managing and operating the Business;
NOW, THEREFORE, for and in consideration of the premises, and the mutual
covenants and agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. PURCHASE AND SALE OF SHARES
1.1 Stock Purchase. Subject to the terms and conditions contained herein,
the Company will sell, transfer, convey and assign to Purchaser, and Purchaser will purchase and
acquire from the Company, at the Closing (as defined herein), all right, title and interest of the
Company in and to five hundred (500) shares of common stock, $0.01 par value of the
Subsidiary (the "Shares"), consisting of all of the issued and outstanding capital stock of the
Subsidiary, free and clear of all liens, claims and encumbrances on such Shares. --
2. PURCHASE PRICE
2.1 Purchase Price. In consideration of the sale, assignment, transfer and
conveyance of the Shares, and in reliance upon the covenants, representations and warranties
made herein by the Company, at the Closing Purchaser shall pay the amount of Two Hundred
Fifty Thousand Dollars ($250,000) (the "Purchase Price") to the Company, which Purchase
Price shall be paid in cash or other immediately available funds.
ATLUBO! 1355838,4
3. CLOSING
3.1 Closing. Subject to the fulfillment of the conditions to closing identified
in Section — herein, the consummation of the transaction contemplated in this Agreement (the
"Closing") shall take place at the offices of Kilpatrick Stockton LLP, 1100 Peachtree Street,
Suite 2800, Atlanta, Georgia, at 10:00 a.m., Atlanta time, on , 2002 [the 90th day
following the execution of this Agreement] (the "Closing Date"), or al such other place and time
as the parties may mutually agree.
3.2 Transactions and Documents at Closing.
(a) Purchaser's Deliveries. At the Closing, Purchaser shall deliver to
the Company the Purchase Price.
(b) Company's Deliveries. At the Closing, the Company shall deliver
to Purchaser certificate(s) representing the Shares, duly endorsed in blank or
accompanied by stock assignments duly executed in blank.
(c) Further Assurances. All deliveries, payments and other
transactions and documents relating to the Closing shall be interdependent and none shall
be effective unless and until all are effective (except to the extent that the party entitled to
the benefit thereof has waived in writing satisfaction or performance thereof as a
condition precedent to Closing). Each party shall, at the request of any other party from
time to time and at any time, whether on or after the Closing, and without further
consideration, execute and deliver such deeds, assignments, transfers, assumptions,
conveyances, powers of attorney, receipts, acknowledgments, acceptances and assurances
as may be reasonably necessary to procure for the party so requesting, and its successors
and assigns, or for aiding and assisting in collecting and reducing to possession, any and
all of the Shares, or to otherwise satisfy and perform the obligations of the parties
hereunder.
4. LEASED ASSETS; MANAGEMENT SERVICES
4.1 General. From the date hereof until the Closing, the Subsidiary shall
lease to Purchaser, and Purchaser shall lease from the Company, the Leased Assets.
Additionally, Purchaser shall provide to the Subsidiary management services in conducting and
operating the Business, including without limitation, general services of a managerial,
operational, billing and financial, purchasing, technical, commercial, administrative and advisory
nature as such are related thereto and such other services (the "Management Services").
Purchaser shall use its commercially reasonable efforts to provide the Management Services in
the same manner and with the same level of care as the Subsidiary managed the Business prior to
the date of this Agreement, and in no event with any less care than a reasonably prudent business
person engaged in the same line of business as the Subsidiary would exercise under the same or
similar circumstances.
4.2 Contract Management. As an example of the Management Services and
not in addition thereto, Purchaser shall use its commercially reasonable efforts to manage,
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ATLLIBO 11355938.4
maintain, operate and perform on behalf of and for the benefit of the Company and the
Subsidiary any responsibilities, duties and obligations of the Subsidiary pursuant to any
contracts, commitments, agreements or similar commercial arrangements of the Subsidiary,
whether oral or written ("Contracts") arising or accruing after the execution of this Agreement.
Purchaser shall consult with the Subsidiary and keep the Subsidiary advised as to all material
matters and decisions affecting its performance of the Management Services pursuant to the
Contracts and shall refrain from altering, modifying, amending, or waiving any material terms or
provisions of the Contracts without the consent of the Subsidiary, which consent shall not be
withheld or delayed unreasonably.
4.3 Consideration for Management Services. In consideration of
Purchaser's provision of the Management Services, Purchaser shall be entitled to retain any and
all revenues, fees and other monies (if any) collected or due from customers of the Subsidiary in
exchange for services rendered to such customers by Purchaser in its performance of the
Management Services and operation of the Business. In consideration of the Subsidiary's
provision of the Leased Assets to Purchaser, Purchaser shall be liable for all of the liabilities and
obligations of the Subsidiary incurred in connection with the operation of the Business, including
without limitation, all trade payables. During the period in which Purchaser is providing the
Management Services, Purchaser shall cause the Subsidiary to be in compliance with the leases
for the following real property, including without limitation the payment of any and all
obligations under such leases:
(a) 3150 SW 38`h
Miami. FL 33110-0001
(b) 3870 Shipping Avenue
Miami, FL 33146
(c)
3066 SW 38th Avenue
Miami, FL 33146
4.4 Use of Leased Assets. In connection with the performance of the
Management Services, Purchaser shall have access to and the full and complete use of all of
the Leased Assets, so that it may fulfill its obligations under this Agreement.
4.5 Employees. The Subsidiary shall terminate the employment of all of its
employees and Purchaser shall immediately offer all such employees employment with
Purchaser. Purchaser shall be wholly responsible for all compensation and benefits payable to its
employees.
4.6 Insurance. Purchaser shall maintain such insurance insuring against risks
related to Purchaser's performance of the Management Services and operation of the Business as
is customary for businesses such as the Business, and in no event inferior as to amount, coverage
or other terms as the insurance carried by the Subsidiary prior to the date hereof.
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ATLLFBOE 1355338.4
5. COVENANTS APPLICABLE TO LEASED ASSETS
The following covenants and agreements apply to Purchaser's rental and use,
respectively, of the Leased Assets:
5.1 Taxes. Purchaser shall promptly report, file, pay and indemnify and hold
the Subsidiary harmless with respect to any and all Taxes. The term "Taxes" means all taxes,
fees and assessments due, assessed or levied by any foreign, federal, state or local government or
taxing authority, and any penalties, fines or interest thereon, which are imposed after the date
hereof against or upon the use of the Leased Assets under this Agreement, but shall not include
any taxes based upon or measured by the net income of the Subsidiary. Purchaser will, upon
request by the Subsidiary, submit to the Subsidiary written evidence of Purchaser's payment of
all Taxes due hereunder. The foregoing notwithstanding, the Subsidiary shall file such tax
returns relating to sales or use taxes as may, pursuant to applicable law, be required to be filed by
the Subsidiary, and remit the amount thereof, and Purchaser shall reimburse the Subsidiary for
the amount of such Taxes. The Subsidiary shall be responsible for paying its pro rata part of the
estimated Taxes for 2002 based upon the number of days between January 1, 2002 and the date
of this Agreement.
5.2 Use, Ownership and Maintenance of the Leased Assets.
(a) Purchaser and the Subsidiary acknowledge that the Subsidiary
retains full legal title to each of the Leased Assets, notwithstanding the delivery to or
possession and use of the Leased Assets by Purchaser. Purchaser may only use and
possess the Leased Assets for the normal and customary use for which such Leased
Assets are intended and only so as to subject the Leased Assets to ordinary wear and tear.
Purchaser will comply with all applicable laws or other governmental regulations in any
manner relating to the possession, use or maintenance of the Leased Assets.
(b) Purchaser will at all times keep the Leased Assets in its sole
possession and control.
(c) Purchaser shall, at its sole expense, keep the Leased Assets in good
working order and condition and make all necessary adjustments and repairs thereto and
replacements thereof. Purchaser shall not use or permit the Leased Assets to be used for
any purpose for which the Leased Assets are not designed or intended.
(d) The Company may affix tags, decals or plates to the Leased Assets
indicating ownership and title to the Leased Assets and Purchaser shall prevent removal
or concealment of such decals or plates. Upon reasonable notice to Purchaser, the
Subsidiary or its agents shall have free access to the Leased Assets at reasonable times
for the purpose of inspection.
(e) The Subsidiary is hereby expressly authorized by Purchaser to
cause this Agreement or other instruments, including Uniform Commercial Code
financing statements, to be filed to evidence the Subsidiary's interest in the Leased
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ATLLIBO1 1355838.4
Assets, and Purchaser agrees to execute such other instruments if deemed desirable by the
Subsidiary.
(0 Purchaser shall keep the Leased Assets free and clear of all liens
and encumbrances. Purchaser shall not assign any of the Leased Assets.
(g) Purchaser shall immediately notify the Subsidiary of the details
concerning any damage to or improper manufacture, functioning or operation of the
Leased Assets.
5.3 Damage, Destruction or Loss. Purchaser shall be responsible for and
hereby assumes the entire risk of loss, damage or destruction with respect to the Leased Assets.
Without limiting the foregoing, if any of the Leased Assets is lost, stolen, confiscated,
condemned or damaged, Purchaser shall pay to the Subsidiary, (a) all accrued but unpaid rent or
use charges due hereunder, plus (b) an amount equal to the greater of: (i) all insurance proceeds
payable under the insurance required to be provided by Purchaser pursuant to Section 6.4 below,
and (ii) the fair market value of the affected Leased Assets immediately prior to being so
affected.
5.4 Insurance on Leased Assets. Purchaser shall at its sole cost and expense
maintain in full force and effect "all risk" extended coverage fire and casualty insurance on the
Leased Assets (in addition to its insurance obligation in Section 4.7. Such insurance shall: (a)
provide for coverage in an amount equal to at least the replacement cost of the Leased Assets; (b)
be in form and substance and with insurers reasonably satisfactory to the Subsidiary; (c)
designate the Subsidiary as an additional insured and loss payee; (d) provide that the policy or
policies may not be cancelled or materially altered without 30 days' prior written notice to the
Subsidiary; if any, and (e) provide the Subsidiary with 30 days in which it shall be permitted to
cure any defaults by Purchaser under the policy.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
COMPANY
To induce Purchaser to enter into and perform this Agreement, the Company represents
and warrants to, and covenants and agrees with, Purchaser as follows:
6.1 Organization, Authority and Qualification of the Company.
(a) The Company is a corporation duly organized and validly existing
under the laws of the State of Tennessee.
(b) The Subsidiary is a corporation duly organized and validly existing
under the laws of the State of Florida. The Subsidiary has full corporate power and
authority to own or lease its properties and to carry on its business as and in all places
where such business is conducted and such properties are owned or leased.
(c) The Company has the full corporate power and authority to
execute, deliver and perform this Agreement, and this Agreement has been duly and
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ATWBoI 135583a_4
validly executed and delivered by the Company and constitutes the valid and legally
binding obligation of the Company, subject to general equity principles, enforceable in
accordance with their respective terms, except as the sanme may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of creditors generally.
6.2 No Violation. The Company and the Subsidiary are not in default under
or in violation of their respective articles or certificates of incorporation or bylaws.
6.3 Ownership of the Shares. All of the Shares have been duly authorized
and are validly issued and are fully paid and nonassessable. The Company is the lawful owner of
the Shares, free and clear of all liens. The Shares constitute all of the issued and outstanding
shares of capital stock of the Subsidiary. There are no outstanding or authorized warrants,
options, rights, calls, commitments, conversion rights, rights of exchange, plans or other
agreements of any character providing for the purchase, issuance, or sale of any shares of capital
stock of the Subsidiary, other than as contemplated hereby.
6.4 Title to Assets. The Subsidiary and certain affiliates of the Company
have good and complete title to all of the vehicles identified on Schedule A attached hereto, free
and clear of all liens and encumbrances except those referenced in Schedule B attached hereto.
7. REPRESENTATIONS AND WARRANTIES OF PURCHASER
As an inducement to the Company to enter into and perform this Agreement,
Purchaser hereby represents and warrants as follows:
7.1 Organization, Authority and Qualification of the Company. Purchaser
is a corporation duly organized and validly existing under the laws of the State of Florida.
Purchaser has full corporate power and authority to own or lease its properties and to carry on its
business as and in all places where such business is conducted and such properties are owned or
leased.
7.2 Authorization; No Inconsistent Agreements. Purchaser has full
corporate power and authority to execute, deliver and perform this Agreement, and this
Agreement has been duly and validly executed and delivered by Purchaser and constitutes the
valid and legally binding obligation of Purchaser, subject to general equity principles,
enforceable in accordance with its terms, except as the same may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of creditors generally.
7.3 Investment Representation. Purchaser is acquiring the Shares for its
own account and not with a view to or for sale in connection with any distribution of such
Shares, and Purchaser has no intention of selling such Shares in a public distribution in violation
of the federal securities laws or any applicable state securities laws.
8. ADDITIONAL AGREEMENTS
8.1 Expenses. Except as otherwise provided herein, all expenses incurred by
Purchaser in connection with the negotiations among the parties, and the authorization,
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ATLLIBOI 1355838.4
preparation, execution and performance of this Agreement and the transactions contemplated
hereby shall be paid by Purchaser. Except as otherwise provided herein, all expenses incurred by
the Company or the Subsidiary in connection with the negotiations among the parties, and the
authorization, preparation, execution and performance of this Agreement and the consummation
of the transactions contemplated hereby shall be paid by the Company or the Subsidiary, as the
case may be.
8.2 Brokers. Purchaser shall indemnify and hold the Company harmless from
and against all claims or demands for commissions or other compensation by any broker, finder
or similar agent claiming to have been employed by or on behalf of Purchaser.
8.3 Disclaimer of Warranty. THE ASSETS OF THE SUBSIDIARY ARE
BEING TRANSFERRED (BY VIRTUE OF THE TRANSFER OF THE SHARES)
AND/OR LEASED ON AN "AS IS, WHERE IS" BASIS. THE COMPANY AND THE
SUBSIDIARY MAKE ABSOLUTELY NO WARRANTIES WHATSOEVER, EXPRESS
OR IMPLIED, REGARDING THE ASSETS OF THE SUBSIDIARY, INCLUDING
WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE
HEREBY DISCLAIMED.
8.4 Limitation on Liability. In no event will the Company or the Subsidiary
be liable to Purchaser for any damages whatsoever (including without limitation direct or
indirect damages for personal injury, loss of business profits, business interruption, or any other
pecuniary, incidental or consequential loss) arising out of the use or inability to use, or the
performance of, the Leased Assets, even if the Company or the Subsidiary has been advised of
the possibility of such damages, or for any claim by any other party. In no event shall the
Company's entire liability to Purchaser arising out of or in connection with this Agreement,
exceed the total amount of the Purchase Price. No action or proceeding hereunder or relating
hereto may be commenced more than one (1) year after the cause of action accrues. This clause
shall survive failure of an exclusive remedy.
8.5 Independent Contractor Status. With respect to any services provided
by Purchaser hereunder, Purchaser shall be deemed to be an independent contractor to the
Subsidiary and employees of Purchaser shall at all times be regarded as employees of Purchaser
and not the Subsidiary. Nothing contained in this Agreement shall create or be deemed to create
an employment, agency, joint venture or partnership relationship between the Subsidiary and
Purchaser.
8.6 Confidentiality.
(a) Purchaser shall not (and shall cause its affiliates employees, agents
and representatives not to) publicly divulge or announce, or in any manner disclose to
any third party any of the Company's Confidential Information. The covenant and
agreement in this Section will terminate three (3) years from the date hereof and be of no
further force or effect; provided, however, the restrictions shall continue indefinitely for
and each item of Confidential Information that also constitutes Trade Secrets.
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BOF l3558384
(b) "Confidential Information" includes without limitation certain
Trade Secrets and other confidential, nonpublic, and proprietary information of the
Company and its affiliates including information regarding costs, profits, markets, sales,
pricing policies, projections, other financial information, products, key personnel,
operational methods or ideas, technical processes, other business affairs and methods,
plans for future developments, and other information not readily available to the public,
the disclosure of which to third parties would in each case have an adverse effect on the
Company or the Business, and which may be delivered orally or in writing; provided,
however, Confidential Information shall not include information that (i) becomes
generally available to the public other than as a result of a disclosure by the Company or
its affiliates, employees, agents and representatives in violation hereof; or (ii) becomes
available to the Company on a non -confidential basis from a source other than Purchaser;
provided, further, that such source is not known by the Company or its affiliates
employees, agents and representatives to be bound by a confidentiality agreement with or
other obligation of secrecy to the Company or its affiliates.
(c) "Trade Secrets" includes, without limitation: formulae; patterns;
compilations; programs; devices; methods; techniques and processes, including but not
limited to product specifications; past, current and planned research and development;
processes and know-how; customer lists; current and anticipated customer requirements;
price lists; marketing studies; business plans; supplier lists and information; computer
programs, software, algorithms, object and source code and related documentation; and
any other information that is a trade secret under applicable law. and materials gained or
developed from the foregoing.
8.7 Company's Covenant Against Competition.
(a) In order to induce Purchaser to enter into this Agreement and pay
the Purchase Price provided herein, the Company agrees that, for the period of five (5)
years immediately following the date of the Closing, the Company will not, without the
prior written consent of Purchaser, for its account, directly or indirectly, open a new
business engaged within the Territory in the provision of vehicle towing and recovery
services.
(b) As used in this Agreement, "Territory" means the geographic area
within Dade County, Florida.
(c) Notwithstanding anything herein to the contrary, it shall not be a
breach of the covenants contained in subparagraph (a) above for the Company to (i) own
not more than two percent (2%) of the equity interests of any person whose equity
interests are publicly traded, (ii) cause services to be provided or participate in services
being provided within the Territory as a part of the RoadOne national towing services
network, so long as the Company is not the owner of the entity providing such services
within the Territory, (iii) refer towing service opportunities to other towing service
providers operating within the Territory, including towing service providers that are
members of the RoadOne affiliate program, provided that the Company will endeavor to
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ATLLIBOI 13553314
make such opportunities available to Purchaser for as long as Purchaser is a member of
the RoadOne affiliate program.
(d) Although the parties have, in good faith, used their best efforts to
make the provisions of this Section 8.7 reasonable in both geographic area and in
duration, and it is not anticipated, nor is it intended, by any of the parties hereto that a
forum of competent jurisdiction would find it necessary to reform the provisions hereof
to make it reasonable in both geographic area and in duration, or otherwise, the parties
understand and agree that if a forum of competent jurisdiction determines it necessary to
reform the scope of this Section 8.7 in order to make it reasonable in either geographic
area or duration, or otherwise, damages, if any, for a breach hereof, as so reformed,
would be deemed to accrue to Purchaser as of and from the date of such a breach only
insofar as the damages for such breach relate to an action which occurred within the
scope of the geographic area and duration as so reformed.
8.8 Vehicle Transfer. The parties hereto hereby acknowledge that the only
vehicles that are intended to be transferred to Purchaser by the Company and its affiliates in
conjunction with the consummation of the transactions contemplated herein are the owned
vehicles listed on Schedule A attached hereto (the "Owned Vehicles"). Purchaser hereby
covenants and agrees to take, and to cause the Subsidiary after the Closing to take, all actions
and to execute and deliver promptly any and all documents, instruments and other agreements
necessary or convenient to properly transfer title of any retained vehicles from the Subsidiary to
Road One, Inc., including but not limited to a Power of Attorney in substantially the form
attached hereto as Exhibit A. In addition, Purchaser shall, and shall cause the Subsidiary after
the Closing to, immediately upon request by the Company, take all actions and execute and
deliver any and all documents, instruments and agreements necessary or convenient to transfer
the title of any other vehicles owned by the Subsidiary on the date of the Closing, other than the
Owned Vehicles, from the Subsidiary to Road One, Inc., including, but not limited to, a Power of
Attorney in substantially the form attached hereto as Exhibit A.
8.9 Vehicle and Equipment Lease Transfer. The parties hereto hereby
acknowledge that the only vehicle and equipment leases that are intended to be transferred to
Purchaser by the Company and its affiliates in conjunction with the consummation of the
transactions contemplated hereby are the leases for the vehicles and equipment listed on
Schedule C attached hereto (the "Owned Leases"). In addition, Purchaser hereby covenants and
agrees to take, and to cause the Subsidiary to take, all actions and to execute and deliver
promptly any and all documents, instruments or other agreements that the Company may request
with respect to any transfer of a retained lease, including, but not limited to, a Power of Attorney
in substantially the form attached hereto as Exhibit B. In addition, Purchaser -shall, and shall
cause the Subsidiary, after the Closing, to immediately upon request by the Company, take all
actions and execute and deliver all documents, instruments and agreements that the Company
may request with respect to the assignment and assumption of any vehicle or equipment leases to
which the Subsidiary is a party on the date of the Closing, other than the Owned Leases, from the
Subsidiary to Road One, Inc., including but not limited to a Power of Attorney in substantially
the form attached hereto as Exhibit B.
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ATLLtBO 11355838.4
8.10 Leases. The Company and the Subsidiary shall use all commercially
reasonable efforts to assign or otherwise settle the obligations remaining under those certain
leases for the real property located at 3066 SW 38th Ave., Miami, FL 33146 at or prior to the
Closing.
9. MISCELLANEOUS
9.1 Notices. All notices or other communications required or permitted to be
given or made hereunder shall be in writing and delivered personally or sent by pre -paid, first
class certified or registered mail, return receipt requested, or by nationally available overnight
delivery service, to the intended recipient thereof at its address set out below. The addresses of
the parties for purposes of this Agreement are set forth on the signature page hereto below their
respective signatures. Any party may change the address to which notices or other
communications to such party shall be delivered or mailed by giving notice thereof to the other
party hereto in the manner provided herein.
9.2 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument.
9.3 Governing Law. The validity and effect of this Agreement shall be
governed by and construed and enforced in accordance with the laws of the State of Georgia,
without regard to its conflicts of laws rules.
9.4 Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective permitted successors and assigns.
Neither the Company nor Purchaser may assign, delegate or otherwise transfer any of their rights
or obligations under this Agreement without the written consent by the other party hereto.
9.5 Partial Invalidity and Severability. All rights and restrictions contained
herein may be exercised and shall be applicable and binding only to the extent that they do not
violate any applicable laws and are intended to be limited to the extent necessary to render this
Agreement legal, valid and enforceable. If any term of this Agreement, or part thereof, not
essential to the commercial purpose of this Agreement shall be held to be illegal, invalid or
unenforceable by a forum of competent jurisdiction, it is the intention of the parties that the
remaining terms hereof, or part thereof, shall constitute their agreement with respect to the
subject matter hereof and all such remaining terms, or parts thereof, shall remain in full force and
effect. To the extent legally permissible, any illegal, invalid or unenforceable provision of this
Agreement shall be replaced by a valid provision which will implement the commercial purpose
of the illegal, invalid or unenforceable provision.
9.6 Waiver. Any term or condition of this Agreement may be waived at any
time by the party which is entitled to the benefit thereof, but only if such waiver is evidenced by
a writing signed by such party. No failure on the part of any party hereto to exercise, and no
delay in exercising any right, power or remedy created hereunder, shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or remedy by either party
preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
10
ATLLI841 1355838.4
No waiver by either party hereto of any breach of or default in any term or condition of this
Agreement shall constitute a waiver of or assent to any succeeding breach of or default in the
same or any other term or condition hereof.
9.7 Headings. The headings of particular provisions of this Agreement are
inserted for convenience only and shall not be construed as a part of this Agreement or serve as a
limitation or expansion on the scope of any term or provision of this Agreement.
9.8 Entire Agreement. This Agreement supersedes all prior discussions and
agreements between the parties with respect to the subject matter hereof, and this Agreement
contains the sole and entire agreement between the parties with respect to the matters covered
hereby. This Agreement shall not be altered or amended except by an instrument in writing
signed by or on behalf of the party entitled to the benefit of the provision against whom
enforcement is sought.
9.9 Disclosure of Agreement Terms Publicity. Purchaser shall not engage
in any publicity regarding this transaction or disclosure of the terms and conditions of this
Agreement to any person or entity without the prior written consent of an executive officer of the
Company or as required by law or an order from a court or administrative body of competent
jurisdiction (but only to the extent so required and only after giving reasonable prior notice to the
Company and cooperating with the Company in any efforts to legally oppose such disclosure).
The foregoing notwithstanding, Purchaser shall be peiuiitted to make such disclosures to its
accountants and lawyers as may be appropriate, provided that such accountants and lawyers are
bound by the foregoing nondisclosure provisions.
9.10 Time of the Essence; Dates. Time is of the essence of this Agreement.
Anywhere a day certain is stated for payment or for performance of any obligation, the day
certain so stated enters into and becomes a part of the consideration for this Agreement. If any
date set forth in this Agreement shall fall on, or any time period set forth in this Agreement shall
expire on, a day which is a Saturday, Sunday, federal or state holiday, or other non -business day,
such date shall automatically be extended to, and the expiration of such time period shall
automatically be extended to, the next day which is not a Saturday, Sunday, federal or state
holiday or other non -business day. The final day of any time period under this Agreement or any
deadline under this Agreement shall be the specified day or date, and shall include the period of
time through and including such specified day or date.
9.11 Counsel. Each party hereto warrants and represents that each party has
been afforded the opportunity to be represented by counsel of its choice in connection with the
execution of this Agreement and has had ample opportunity to read, review, and understand the
provisions of this Agreement.
9.12 No Construction Against Preparer. 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
prepared or imposed such provision.
11
ATLLIBOI 1355838.4
9.13 No Recording. In no event shall this Agreement or any memorandum
hereof be recorded by Purchaser in any public records, and any such recordation or attempted
recordation shall constitute a breach of this Agreement by Purchaser.
9.14 Exhibits. Each and every exhibit referred to or otherwise mentioned in
this Agreement is attached to this Agreement and is and shall be construed to be made a part of
this Agreement by such reference or other mention at each point at which such reference or other
mention occurs, in the same manner and with the same effect as if each exhibit were set forth in
full and at length every time it is referred to or otherwise mentioned.
[Remainder of Page Intentionally Left Blank. Signature Page .Follows.]
12
AT LLIB01 1355878.4
May.29. 20022 3:IIPM ABSOLUTE TRANSFER
d2:N O. 0 0 3 0)6s P. 1.14/19
IN WITNESS WHEREOF, the parties have executed or caused this Agreement to be
executed by their duly authorized agents as of the day and year first above written.
PURCHASER:
ABSOLUTE MANAGEMENT CORPORATION
By:
Name: /,rJ0,-0- -c/
Title: /��
Address: 5055 NW 74 Ave.
Miami, FL 33166
Facsimile:
COMPANY:
ROAD ONE, INC.
By:
Name-
Title:iCC f fSi
ard
Address: 8503 Hilltop Drive
0oltewah, TN 37363
Facsimile: (423) 238-6965
13
WOHMMIA
IN WITNESS WHEREOF, the parties have executed or caused this Agreement to be
executed by their duly authorized agents as of the day and year first above written.
PURCHASER:
ABSOLUTE MANAGEMENT CORPORATION
By:
Name:
Title:
Address: 5055 NW 74 Ave.
Miami, FL 33166
Facsimile:
COMPANY:
ROAD ONE, INC.
By:
N
T e:
_ Pt IH
ddress: 8503 Hilltop Drive
Ooltewah, TN 37363
Facsimile: (423) 238-6965
13
1 1355838.4
Schedule A
Leased Assets
1 The following towing and recovery vehicles and equipment:
Year
Description
Wrecker/Carrier
VIN
Liens and
Encumbrances
(including
amount of any
debt)
1993
FORD XLT, 7.3
Powerstroke Diesel
Engine
1993 EAGLE
CLAW EB-1
Wrecker, Wheel
Lift, Lift Arms
2FDLF47M3PCA34315
1995
FORD 450 XLT, 7.3
Liter 225 H.P. Diesel
Engine
1995 EAGLE
CLAW EB-1
Wrecker, Wheel
Lift, Forks
1 FDLF47F6SEA40274
1997
INTERNATIONAL
4700, T444E 190 H.P.
Engine
1997 CHAMPION
21' Flatbed Trailer
1 HTSCABMSVH485432
1997
INTERNATIONAL
Paystar 5000,
Cummins NTC 350
H.P. Engine
CENTURY 1040
Heavy Wrecker,
Hydraulic Spades,
Underlift
2HTTR0004VCO25831
1997
CHEVROLET
C6500, Caterpillar
3116 200 H.P. Engine
1995 CHAMPION
19' Flatbed Trailer
1GBJ6HIJ2VI I 1535
1998
GMC C6500
Century 21' Carrier
1GDJ6H1C6WJ516694
1998
MITSUBISHI FE, 6
CI 160 H.P. Engine
1998 CENTURY
CS9 Roll Back, 19'
Long, Wheel Lift,
Lift Arrns
JW6CCGIG5WL000690
>1998
GMC
YUKON
I GKEK13R5WJ701575
1995
INTERNATIONAL
CENTURY 820
1 HTSDAAN6SH624566
1991
LANDOLL
317
I
ILH317UH5M1005776
Schedule A — Page I
ATLLIBOI 1355838,4
Schedule B
Permitted Encumbrances
1. All of the assets of the Subsidiary are currently subject to blanket liens by Citigroup and
Bank of America, N.A., which liens will be released prior to Closing.
AfLLIBU1 1355838.4
Schedule B — Page 1
Schedule C
Owned Leases
Schedule C — Page 1
Attachment B
Corporate Resolution
2
FEB 10 2004 5:16PM HP LASERJET 3200
p. 4
Corporate )eio/ution
WHEREAS, Absolute Management Corp., a Florida corporation, desires to
enter into an agreement with the City of Miami for the provision of towing services;
and,
WHEREAS, the Board of Directors at a duly held corporate meeting has
considered the matter in accordance with the by-laws of the corporation;
NOW THEREFORE, BE IT RESOLVED by the board of directors of Absolute
Management Corp. that Robert S. Muriedas, President of Absolute Management
Corp., and Manuel Marano, Vice President of Absolute Management Corp., is each
authorized and instructed to enter into a contract in the name and on behalf of
Absolute Management Corp. with the City of Miami upon the terms contained in
the proposed contract, a copy of which is attached to this resolution.
Dated this 30th day of January, 2004.
Robert S. Muriedas, as
President
Chairman of the Board and
CEO of Absolute Management Corp.
Manuel Marono, as
Vice President and
Director of Absolute Management Corp.
Attachment C
Proof of registration with the Division of Corporations
3
5-04; 5=14PM;WESTBROOK MOTOP5 INC
;3U58884909 SF 1/ 2
Division of Corporations Page 1 of 2
Florida Profit
ABSOLUTE MANAGEMENT CORP.
PRINCIPAL ADDRESS
1759 PALM AVE
HIALEAH FL 33010
Changed 06/16/2003
Document Number
P99000051257
State
FL
MAILING ADDRESS
1759 PALM AVE
HIALEAH FL 33010
Changed 06/16/2003
FEI Number
650947371
Status
ACTIVE
Date Filed
06/07/1999
Effective Date
NONE
Registered Agent
Name & Address
MURIEDAS, ROBERT
1759 PALM AVE
HIALEAH FL 33010
Name Changed: 06/16/2003
Address Changed: 06/16/2003
Officer/Director Detail
Name & Address
MARONO, MANNY
5055 NW 74 AVE.
MIAMI FL 33166
MURIEDAS, ROBERT
5055 NW 74 AVE.
MIAMI FL 33166
Title
PD
VPD
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Annual Reports
Report Year
Filed Date
200 [
01 /25/2001
2002
I
03/03/2002
2003
11
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