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HomeMy WebLinkAboutHam West Util/Carmel ASSET PURCHASE AGREEMENT BETWEEN HAMILTON WESTERN UTILITIES, INC. AND CITY OF CARMEL, INDIANA jh-M- This Asset Purchase Agreement ("Agreementl1) is I day of December, 2001 by and between Hamilton an .Indiana corporation (the "Seller") I and City Indiana municipality (the "Buyerll). made and effective this Western Utilitiesf Inc., of Carmel I Indianal an WHEREAS, Seller owns and operates a water utility and sewer utility located in Hamilton County, Indiana (the "Utilityll) i WHEREAS, Seller has decided to sell certain of its water related assets of Utility to Buyer; WHEREAS, Buyer desires to purchase such assets upon the below described terms and conditions. NOW, THEREFORE, in consideration of the mutual covenants and Conditions herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and confessed, the parties hereto. do hereby agree as follows: 1. Purchase and Sale of Assets. 1.1 Assets. Subj ect to this Agreement I s terms and conditions I Seller does hereby agree to sell to Buyer and Buyer does her,ebyagree to purchase from Seller the assets described below and used by Seller in connection with the operation of the water utility located south of 14"6th Street in Clay Township I Hamil ton County, Indiana [except that included in the assets is a pipeline lying South of l46th Street but located in Washington Township, Hamilton County, Indiana]. Attached hereto as Schedule 1 and incorporated herein is a map of the geographic territory presently being served by Seller in Clay Township Hamilton County, Indiana ("Territory") Such. assets are: (a) all water lines, water meters, water pumps, fire hydrants, water valves and appurtenances thereto located in the Territory; (b) legal rights of used to provide all easements, appurtenances, licenses Seller in the Territory, to the extent service in the Territory; or any other related assignable which are (c) one (1) 1996 Chevrolet 4 x 4 y. ton truck and one (1) 1998 Chevrolet ~ ton pickup truck; (d) customer lists, all of Seller's water customers in the Territory including computer records relating to such customers, billing records, 1 correspondence, repair records and any other miscellaneous records relating to such customers; (e) all governmental permits, licenses or other approvals used or obtained by Seller in connection with its operation of the Utility in the Territory to the extent transferable; (f) to the extent assignable all contracts and written agreements relating to the operation of the Utility in the Territory including but not limited to any executory contracts with developers for commercial or residential proj ects in the Terri tory and the May 31, 2000 Service Territory Agreement (\\SA") among Harbour Water Corporation, Indianapolis Water Company and Seller as such SA r~lates to the Territory; (g) to the extent transferable and subject to the provisions of subparagraph 9.7, Seller I s telephone numbers and Carmel post offi~e boxes used in connection with the Territory. All of the foregoing assets to be sold are hereinafter referred to as the liAs sets .11 1.2 Assumption of Liabilities. Except with respect to the contracts and written agreements set forth in Section 1.1(f) which are to be assigned to Buyer at Closing, and for which Buyer will assume all obligations of Seller with respect thereto at Closing, it is specifically agreed and understood that Buyer shall assume none of Seller r s current or long term liabili ties, including but not necessarily limited to the following liabilities arising out of Seller's operation of the Utility, unless otherwise specified herein: (a) all withholding taxes including, but not limited to, FICA, all state, city, local and area withholding income taxes, federal and state income taxes, federal and state unemployment taxes and all sales and use taxes relating to Seller's operation of the utility prior to the date of Closing; (b) any liabilities of Seller with respect to any of its pension plans, health and welfare plans, prior pension, prior retirement or profit sharing plans, whether the same are or have been trusted or not and. whether applicable to salaried or hourly employees of the Seller; interest) which are provided, Assets, if and Seller (c) all real or personal property taxes (and penalties and and personal and real property assessments, and inventory taxes a lien on the Assets as of the date of Closing hereinafter defined, however, that real and/or personal property taxes relating to the any, assessed for 2002 shall be prorated at Closing between Buyer as of the Closing Date; (d) accounts payable which relate to goods or services received by Seller up to the date of the Closing, whether or not the Seller has received an invoice for the same on or prior to the date of Closing; (e) any liability of Seller through the date of Closing' for earned or accrued vacations for hourly or salaried employees and earned or accrued sick pay of such employees of the Utility; 2 (f) any lien, encumbrance, mortgage, security interest or other interest in the Assets. assignment of rents, 1.3 Excluded Assets. The sale of Assets contemplated hereby shall not include, and there is expressly excluded from the term lIAssetsll Seller I s cash on hand and in banks, accounts receivable, including,. without limitation, accounts receivable (whether Seller has billed for such receivables or not) for services rendered prior to the Closing, together with the general accounting records of Seller which evidence such accounts, tax refunds, chases in accian, and all property, assets, rights or interests not specifically included within the Assets or otherwise specifically transferred to Buyer hereunder or pursuant hereto 1.4 Collective Bargaining Agreements and Labor Matters. Buyer expressly does not assume any obligations or responsibilities Seller may have with respect to collective bargaining with Seller's employees or collective bargaining agreements that may be in effect with Seller's employees. Buyer will offer employment with the City of Carmel to the four employees identified on Schedule 1. 4 attached hereto. Buyer will have no further obligation to such employees resulting from any agreement Seller may have with its employees or with respect to Seller's responsibilities and obligations to Seller's employees related to their employment by Seller. Seller acknowledges that Buyer will not be obligated to offer Seller's employees a similar position. 2. Purchase Price. The Purchase Price shall be Three Million Four Hundred and Two Thousand Dollars ($3,402,000.00). The Purchase Price shall be payable in cash at closing. Seller and Buyer agree to allocate the purchase price for returns or information reports filed with Federal, state and local taxing authorities as set forth on Schedule 2. 3. Warranties and Representations of the Seller. The Seller does hereby make the following warranties and representations to Buyer, which warranties and representations shall survive any investigation by Buyer and the Closing. 3.1 Authority. Seller has taken all necessary actions to approve this Agreement and the performance of its obligations hereunder. This Agreement constitutes the valid and legally binding obligation of the Seller. 3.2 Organization; Good Standing. seller is an Indiana corporation duly organized and validly existing under the laws of the State of Indiana with all requisite power and authority to own, operate and lease its properties, to carryon its business as now being conducted, and to enter into this Agreement and perform its obligations hereunder. 3.3 Title to Assets. Except for current real and personal property assessments and real and personal property taxes not yet delinquent and except with respect to easements, the Seller has (or will have at Closing) good title to the Assets free and clear of any mortgages, liens', pledges, security interests, leases, charges, claims, encumbrances, or conditional sale or title retention agreements, taxation charges, or any 3 other type of restrictions. Seller will payoff any existing conditional sales contracts, mortgages, or security interests at or prior to Closing. . With respect to easements, Seller represents and warrants as follows: (al that it has no knowledge of any facts or claims placing Seller on notice that Seller may not have good and merchantable title to all private easements and that! to Seller's knowledge, Seller possesses good and merchantable title to all private easements necessary to operate the Utility in the Territory where the Assets 'are presently located. The substance of this representation and warranty shall be made in the form of the Vendor's Affidavit as published by the Indianapolis Bar Association; (b) that it has not sold; assigned, transferred, encumbered, or otherwise conveyed any of the private easements to be assigned to Buyer pursuant to this Agreement; (c) that, to Seller's knowledge, all water lines and related equipment are physically located within the boundaries of private easements to be assigne'd to Buyer pursuant to this Agreement, of' public rights -of-way f or of dedicated utility easements which Buyer may occupy for purposes of providing water; and (d) that Seller has good and marketable title to all private easements necessary to operate t~e utility in the Territory where the Utility is presently located; provided, however, that Seller's liability under this subparagraph (d) shall be limited to two years from the Closing and a maximum aggregate liability of $50,000.00; provided, also, that before Seller shall have any liability under this subparagraph 3.3 (d), Seller shall be provided 45 days receipt of notice of claim to negotiate on behalf of Buyer (subject to Buyer's reasonable approval of any final terms and conditions) to acquire the necessary private easement rights before Buyer negotiates for such acquisition or otherwise initiates condemnation proceedings. The limitations on liability for easements set, forth herein shall only apply to Seller's representations set forth in this subparagraph 3.3(d), and shall not apply to any other representations and warranties in this paragraph or this Agreement. 3.4 violation of Other Instruments. Neither the execution of, nor the consummation of the transactions contemplated by, this Agreement does or will constitute a breach or default (or an occurrence which by notice or lapse of time or both, would constitute a breach or default) under any contract or commitment to which the Seller is a party or by which the Seller or its properties or assets are bound, or does or will result in the creation or imposition of any lien, encumbrance, charge, equity or restriction of any nature whatsoever in favor of any third party upon any of the Assets, or does or will result in a breach of any term or provision of the trust indenture of the Seller.' 3.5 water Line Extensions Before Closing. Except as set forth in Schedule 3.5 attached hereto, Seller represents and warrants to Buyer that it is not a party to any wat.er line extension agreements relating to the Territory involving refundable advances by developers, customers, prospective customers or other persons for some or all of the cost of constructing any main extensions relating to the utility in the Territory. 4 3.6 Adverse Judgments. The Seller is not a party to any judgment, order, writ, injunction, decree, rule or regulation which materially and adversely affects or, may in the future materially and adversely affect the business operations, prospects, properties, assets or condition, financial or otherwise, of the Seller as related to the operation of the Utility. 3.7 Disputes and Litigation. There is no claim, litigation, proceeding or governmental investigation pending, or to the best of the Seller's knowledge, threatened against or affecting the Seller, the outcome of which, individually or in the aggregate, if adversely determined, would have a material adverse effect upon the financial condition of the Seller or upon the Utility or would interfere with the consummation of the transactions contemplated hereby; the Seller is not subject to any injunction, order or decree restricting the conduct of its business nor has any governmental agency investigated or questioned its method of operating the Utility. To the best of the Seller's knowledge, no claim has been made that the Seller currently violates any federal, state or local law, ordinance, rule or regulation which might materially affect the business f properties or assets of the Seller as related to Utility. TO the best of the Seller's knowledge, no valid basis for any successful action or ~laim of the nature referred to above exists. 3.8. Mechanic's Liens. Except as set forth in attached Schedule 3.8, Seller represents that no services, material or work have been supplied to the Utility in the Territory for which payment has not been made in full: If, subsequent to the Closing Date, any mechanic's or other lien, charge or order for the payment of money shall be filed against any or all of the Utility in the territory or against the Buyer based upon any act or omission, or alleged act or omission before or after the Closing Date, of the Seller, its agents, servants or employees, or any contractor, subcontractor or material man connected with the construction of improvements on any or all of the Utility in the Territory at the direction of Seller, or repairs made to any or all of the Utility in the Territory at the direction of Seller, whether or not such lien, charge or order shall be valid or enforceable, within ten (10) days after notice to the Seller of the filing thereof, the Seller shall take such action, by bonding, deposit, payment or otherwise, as will remove or satisfy such lien of record against the Utility in the Territory. 3.9 Compliance with Law. The Seller has conducted and/or operated its properties and the Utility in accordance with all applicable laws and other requirements of governmental authorities, including but not limited to, all environmental/ public health laws. 3.10 Governmental and Other Consents. Except as set forth in attached Schedule 3.10 and with respect to the approval required by the Indiana Utility Regulatory Commission which is a condition precedent to the consummation of this transaction, no consent, approval, or authorization of, or designation, declaration or filing with any governmental authority or other person or entity is required on the part of the Seller in connection with the execution or delivery of this Agreement or the consummation of the transactions contemplated hereby. 5 3.11 and registrations conducted. Permits and Licenses. required in connection Seller has with the all permits; licenses Utility as presently 3.12 ERISA. The Seller does not sponsor or contribute to, or have a contract or other obligation to contribute to (nor has the Seller in the preceding 60 calendar months sponsored or contributed to, or contracted to or otherwise contributed to) (a) any defined benefit pension plan, as defined in and subject to Title IV of the Employee Retirement Income Security Act of 1984, as amended, or (b) any multi-employer pension plan, as defined in the Multi-employer Employee Pension Plan Amendment Act of 1980, as amended, which is subject to the withdrawal and partial withdrawal liability provisions thereof with respect to the Utility. 3.13 Full Disclosure. The representations and warranties made by the Seller in this Agreement including Exhibit C and the certifications furnished or to be furnished to Buyer 1 pursuant to this Agreement, do not contain or will not contain any untrue statement of a material fact, and do not omit, or will not omit, to state a material fact necessary to make the statements contained herein o,r therein not misleading; further, as of the Closing date, Seller will have disclosed to Buyer all events, conditions, and facts materially affecting the Assets and the business of the operation of the Utility in the Territory. 4. Warranties and Representations of Buyer. Buyer does hereby make the following warranties and representations to the Seller, which warranties and representations shall survive any investiga~ion by the Seller at the Closing. 4.1 Organization; Good Standing. Buyer is an Indiana municipality duly organized and validly existing under the laws of the State of Indiana with all requisite power and authority to own, operate and le,ase its properties, to carryon its business as now being conducted, and to enter into this Agreement and perform its obligations hereunder. 4.2 Authority. Buyer has or will have wi thin thirty (30) days or the execution date taken all necessary action to approve this Agreement and the' .performance of its obligations hereunder, whereupon this Agreement will constitute the valid and legally binding obligation of Buyer; provided, however such actions do not include the approval of the Indiana Utility Regulatory Commission. 4.3 Violation of Other Instruments. Neither the execution of, nor the consummation of the transactions contemplated by this Agreement does or will constitute a breach or default (or an occurrence which by notice or lapse of time or both, would constitute a breach or default) under any contract or commitment to which Buyer is a party or by which it or its properties or assets are bound, or does or will result in the creation or imposi tion of any lien, encumbrance, charge t equity or restriction of any nature whatsoever in favor of any third party upon any of the properties of Buyer I or does or will result in a breach of any term or provision of its operating agreements. as a 4.4 condition Governmental and Other Consents. to Closing, no consent, approval Except as provide herein or authorization of or 6 designation or declaration with or entities on the part of Buyer or delivery of this Agreement contemplated hereby. any governmental authority or other persons is required in connection with the execution or the consummation of the transactions 4.5 Disputes and Litigation. There is no claim, litigation, proceeding or governmental investigation pending, or to the best of the Buyer's knowledge, threatened against or affecting Buyer, the outcome of which, individually or in the aggregate, if adversely determined, would have a material adverse affect upon the financial condition of Buyer or upon the conduct of its business or would interfere with the consummation of the transactions contemplated hereby. Buyer is not subj ect to any inj unction, order or decree restricting the conduct of its business nor has any governmental agencYt to the best or Buyer's knowledge, investigated or questioned its methods of business. To the best of Buyer's knowledge, no claim has been made that it currently violates any federal, state or local law, ordinance, rule or regulation which might materially affect the business, properties or assets of it. To the best of Buyer's knowledge, no valid basis for any successful action or claim of the nature referred to in this Section exists. 4.6 Adverse Judgments. Buyer is not a party to any judgment, ordert writ, injunction, decree, rule or regulation which materially and adversely affects or, so far as Buyer can now foresee, may in the future materially and adversely affect the business operations, prospects, properties, assets or condition, financial or otherwise, of it. 4.7 Full Disclosure. The representations and warranties made by Buyer in this Agreement and the certifications furnished or to be furnished to the Seller, pursuant to this Agreement, do not contain or will not contain any untrue statement of a material fact, or does not omitt or will not omit, to state a material fact necessary to make the statements contained herein or therein not misleading. 5. The Closing. 5.1 Time and Place. The consummation of the transactions contemplated by this Agreement shall occur at 1: 00 p. m. local time on or before February 28, 2002 (the "Closing") at Seller's office, 1549 Greyhound Pass t Carmel, Indiana or at such other time, date and place as the parties hereto may agree. 5.2 Seller's Deliveries at the Closing. At the Closing, the Seller shall execute and deliver to Buyer: (al bill of sale, vendor's affidavit; and (b) such other certificates, documents and instruments including instruments of assignment and conveyance, as Buyer shall reasonably deem necessary or appropriate to vest title to the Assets in Buyer and to consummate the transactions contemplated hereby. 5.3 Buyer's Deliveries at the Closing. At the Closing, Buyer shall deliver to Seller the Purchase Price in cash via wire transfer or certified check and an assumption agreement pertaining to the assigned contracts and other agreements. 7 5.4 Operations on the Closing Date. The revenues generated from the operation of the Utility on and after the date of Closing shall belong to Buyer. Buyer shall be responsible for all expenses including salaries, on or after the Closing date relating to the operation of the Utility in the Territory. 5.5 Pro-Rated Taxes. The installments of any personal or real property taxes, personal property assessments, inventory taxes and assessments, both general, and special, for the tax year 2002} shall be pro-rated between the parties to the date of Closing. Seller shall be responsible for the payment of all such taxes for the tax year 2001 and all previous tax periods} which Seller shall pay as such taxes become due and payable. In the event such taxes include penalty or interest, Seller shall pay for the entire amount of such penalty or interest. Seller agrees that it will escrow sufficient sale proceeds to pay for all 2001 taxes due and payable in 2002. In calculating the pro-ration of: (a) the real and personal property taxes; and (b) inventory taxes} for the tax year 20021 the present tax rate shall be utilized if the applicable tax rate has not been established. Any taxes not assumed by the Buyer for the tax year 2002, which are not due and payable as of the date of the Closing shall be escrowed at Closing. When the Buyer receives the 2002 personal property tax statements (which are due on or before May/November, 2003) they shall recalculate the pro-rated taxes and advise Seller if the payment made at closing was greater than or less than the actual tax. If the Seller's payment was greater than the actual tax Buyer shall refund the excess to Seller; if the actual tax is greater than Seller's payment, Seller shall pay the deficiency to Buyer. 6. Conditions Precedent to Obligation of Buyer to Close. The obligation of Buyer to pay the Purchase price hereunder shall be subject to the following conditions precedent} the nonoccurrence of anyone or more of which, unless waived by it, shall relieve it from all performance under this Agreement: 6.1 Closing Documents. assignment, statementsi (a) Seller certificates, shall deliver bills of sale, vendor's affidavit, consents or other transfers of instruments, closing (b) Seller shall at Seller's sole expense assign to and/or obtain for Buyer, any and all easements necessary for the use and operation of all water lines and other facilities which are a part of the Utility in the Territory and not located in public rights-of-way or dedicated utility easements. Seller shall obtain any consents which may be required for the assignment of Seller's easements to Buyer. If such easements are not acquired and provided to Buyer's satisfaction, this Agreement may be terminated by either party without further obligation. proceeds that are 6.2 Financing. Buyer shall have of Four Million Dollars ($4,000,000.00) acceptable to iti obtained upon terms municipal bond and condi tions 6.3 General Obligations. 8 .(a) Seller shall have performed all of this Agreement's obligations to be performed by each of them at or prior to the Closing including, without limitation, all obligations imposed by the covenants in Section 7 to be performed or observed by each at or prior to the Closing; (b) No action or proceeding shall have been brought or threatened to prevent, or to seek damages by reason of I the execution and delivery of this Agreement or the consummation of any of the transactions contemplated hereby; nO governmental authority shall have claimed that any transaction contemplated hereby constitutes a violation of any law, rule or regulation, or gives rise to liability on the part of Buyerj (c) The consent or approval of each person, entity and governmental authority whose consent or approval is required in connection with this Agreement and/or the transactions contemplated thereby shall have been obtained which consent or approval, except for the approval of the Indiana Utility Regulatory Commission as provided for in paragraph 6.4 below, shall have been obtained within thirty (30) days of the date of execution hereofi (d) Buyer shall be satisfied that the Closing shall be in compliance with all applicable federal and state laws. 6.4 Indiana Utility Regulatory Commission. Seller and Buyer shall jointly petition the Indiana Utility Regulatory Commission for approval of and the Indiana Utility Regulatory Commission shall have approved the following, free from burdensome or unsatisfactory conditions and restrictions: (a) Purchase price; this Agreement and all terms hereunder including the (b) the transfer of the Assets by the Seller to the Buyer; (c) the surrender of the portions of Seller's certificates of public convenience and necessity with respect to water service in the TerritorYi (d) the financing described in Paragraph 6.2 herein; and (e) charges for water the Territory. the application by Buyer after Closing of the rates and service currently applicable to service by Seller within The determination of whether or not the approvals are satisfactory shall be within the discretion of both the Buyer and Seller. Each party shall immediately notify the other when Commission approval has been obtained to its satisfaction. If either Buyer or Seller determines satisfactory approval is unobtainable, it shall notify the other I whereupon this Agreement may be terminated at the election of either party, without" obligation to the other party. Seller and Buyer agree to cooperate with each other in obtain~ng such approvals. 9 6.5 Common Council Approval. execution hereof, Seller's Common Council acquisition of the Assets of the Utility in terms and conditions of this Agreement. Within thirty (30) days of shall have approved Buyer's the Terri tory pursuant to the 6.6 Deadline For Closing. The deadline for Closing shall be March 31, 2002. Seller and Buyer agree to cooperate and use their respective best efforts to accomplish the foregoing conditions and to do all things necessary or required by law to consummate the acquisition of the Utility in the Territory by Buyer before this deadline. Either party shall be entitled to obtained a 120 day extension of time to close by requesting such right on or before February 2 B, 2002. If the Closing has not occurred on or before June 30, 2002, then this Agreement may be terminated by either party giving written notice to the other party. 7. Post Closing Covenants. 7.1 Indemnification. Without conferring any third party rights, Seller agrees to indemnify and hold the Buyer, its successors and assigns, harmless from and against any loss, claim, damage, liability, or expense (including court costs, expert witness fees, interest, and counsell s fees) resulting to the Buyer from any breach of the representations, warranties, covenants, agreements, or undertakings of the Seller contained in this Agreement, provided, however, that Seller shall have no liability to Buyer under and pursuant to the terms of this Agreement unless and until the aggregated amount of all claims for indemnification under this Agreement is equal to or greater than $12,500.00 (the "Indemnification Basket"). Once the aggregate amount of all claims for indemnification equals or exceeds the amount of the Indemnification Basket, in the aggregate, all claims for indemnification in excess thereof shall be subject to indemnification pursuant to the terms hereof. without limiting the generality of the foregoing, Seller agrees to indemnify and hold Buyer, its successors and assigns, harmless from the following: (a) those liabilities not assumed by Buyer, including those described in Section 1.2, Clauses (a) through (f) inclusive; (bl any liability for medical, disability, life insurance or workmen's compensation claims which arose prior to the date of Closing and in addition to such claims any premiums payable on the date of Closing or prior thereto, or any liability with respect to such premiums; and (c) any claims emanating from Seller I s ownership of the Assets which arise from Seller 1 s actions or inactions taken prior to the date of Closing; Idl the failure of Seller to comply with applicable statutes, regulations, codes or ordinances (including, but not limited to, any and all environmental or public health laws) . Notwithstanding any provision herein to the contrary, the maximum liability of Seller to Buyer, in the aggregate, arising out of, resulting from or in any connected with this Agreement or any of the transactions contemplated herein shall be Two Million Dollars 1$2,000,000.00). 10 7.2 Brokerage. otherwise obligated themselves connection with this Agreement. Neither to pay Seller nor Buyer any finder's fee have retained or commission or in 7.3 Post Closing Availability of Books and Records. The Seller will make available its books and records relating to the operation of the Utility to Buyer and its accountants at reasonable times, upon reasonable notice and for cause to assist Buyer in the operation of its business and in the preparation of financial statements of Buyer. In the event that Buyer shall require the services of the Seller's accountants pursuant to this paragraph, Buyer shall obtain a firm quote of the cost for such services from such accountants and shall be responsible for the payment of such costs. 7.4 Cooperation. The Seller will cooperate with Buyer in the transition of ownership of the Assets and the Seller's Utility. Such cooperation shall include but shall not be limited to encourage suppliers, employees, and customers to transact business with Buyer. 7.5 Purchase As-Is. Buyer understands that it is being provided the opportunity to inspect the Utility in the Territory and Seller's evidence of easements as conditions to Closing. Buyer acknowledges that it will acquire the Assets of the Utility in the Territory as is and where is, and without express or implied warranty of any kind as to the physical condition of the Utility in the Territory, specifically including but not limited to express or implied warranties of fitness for a particular purpose, and with no warranties as to title except as specifically provided herein or in the documents delivered by Seller to Buyer at Closing. 7.6 Customer Deposits. Wi thin a reasonable time after the Closing, Seller shall refund customer deposits held by it directly to the customers who paid such deposits. It is expressly understood and agreed that any customer deposits collected by Seller prior to the Closing are a matter solely between Seller and the depositors. Buyer shall have not responsibility or obligations with respect to such customer deposits. Seller agrees to indemnify and hold Buyer harmless from any claims against Buyer for damage, injurYI expense, liability or lost revenues incurred by Buyer relating to such customer deposits. 8. Covenants of Buyer. Buyer agrees to observe the following covenants between the date hereof and the Closing: 8.1 Further Assurances. Buyer shall do and perform such further acts and deeds and shall execute and deliver such other documents, instruments and certificates as the Seller shall reasonably require to consummate the tr~nsactions contemplated by this Agreement; 8.2 Examination of Books. Buyer and/or its certified public accountants shall promptly examine Sellerls books and records relating to the Utility in the Territory. 9. Covenants of the Seller. The Seller agrees to observe the following covenants between the date hereof and the Closing: 9.1 Cooperation. The Seller shall use its best efforts to cause the sale contemplated by this Agreement to be consummated, and, without 11 9.7 Further Assurances. The Seller shall do and perform such further acts and deeds and shall execute and deliver such other documents I instruments and certificates as Buyer shall reasonably require to consummate the transactions contemplated by this Agreement. Seller shall place a recording on its telephone numbers offering incoming callers the option of being connected to Carmel, Westfield or Seller depending upon the purpose of such call. The message shall be acceptable to Buyer in its discretion and shall remain in place for a period of six (6) months. Seller shall maintain its Carmel post office box for a period of sixty (60) days following Closing and shall distribute any mail received therein which should properly be received by Carmel to Carmel. Seller shall also forward any e-mail messages received to the appropriate party for sixty (60) days following Closing. Thereafter Seller's telephone number and Carmel post office box shall be transferred to Buyer. 9.8 Customer Accounts. Buyer is not purchasing Sellerls accounts receivable. Buyer and Seller shall jointly obtain water meter readings and any other billing related information for all of Seller's customers served in the Territory on a date or dates mutually agreeable but within ten (10) days prior to the Closing Date. Amounts billed for service prior to such joint meter reading shall be and remain the property of Seller. Amounts billed for service subsequent to the joint meter reading shall be and remain the property of Buyer. If after Closing, either party receives payment of accounts receivable which are the property of the other party under this Paragraph, the party receiving such payment shall promptly forward such payment to the other party. 10. Miscellaneous. 10.1 Assignment. Neither party shall assign, convey, sell, pledge, encumber I or otherwise transfer its interests under this Agreement without the express written consent of the other party hereto. approvals hereunder delivered 10.2 Notices. All notices I consents, demands I requests, waivers, and other communications which are required or may be given shall be in writing and shall be deemed to have been duly given if in person or if mailed certified first class maill postage prepaid; If to the Seller, to: Hamilton Western Utilities, Inc. P.O. Box 1009 Carmel, Indiana 46032 With copy to: Kathryn M. Kunz, Esq. KUNZ & OPPERMAN, P.C. 135 North Pennsylvania Street, Suite # 1750 Indianapolis, IN 46204-1959 If to the Buyer, to: City of Carmel ATTN: Mayor James C. Brainard 13 10.9 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one agreement binding on the parties hereto, notwithstanding that all the parties have not signed the same counterpart. 10.10 Attorney's Fees. In any action brought by any party to enforce the obligations of another party hereto, the prevailing party shall be entitled to collect such party's reasonable attorney's fees (as the court having jurisdiction shall allow), court costs anq expenses in such action. 10.11 Expenses. expenses in connection with performance of this Agreement. Each the party hereto shall pay negotiation, preparation, its respective execution and IN WITNESS WHEREOF, the parties hereto have entered into this Asset Purchase Agreement effective the date first written above. 15 10.9 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one agreement binding on the parties hereto, notwithstanding that all the parties have not signed the same counterpart. 10.10 Attorney's Fees. In any action brought by any party to enforce the obligations of another party hereto, the prevailing party shall be entitled to collect such party's reasonable attorney's fees (as the court having jurisdiction shall allow), court costs an~ expenses in such action. 10.11 Expenses. expenses in connection with performance of this Agreement. Each the party hereto shall pay negotiation, preparation, its respective execution and IN WITNESS WHEREOF, the parties hereto have entered into this Asset Purchase Agreement effective the date first written above. 15 SELLER: HAMILTON WESTERN UTILITIES, INC. By: Ralph L. Wilfong, II President APA-Carme13-MSW 12/10/01 BUYER: CITY OF CARMEL, INDIANA 16 ~ Brainard, Mayor -ot.. .r '- - tll,;\JEIVED JUN 4 ~ 1984 0-...._ ~.~ \ 't I , , , BLEECKER~ BRODEY & ANDREWS . ~. . 2506 Willowbr()ok Parkway, Suite #312 . Indianapolis, Indiana 46205 . Phone (317) 259-n51 OFFICE OF ....A.vaR CARMEL. IN 'I,,''''\~~'::'','''::/~''~''','' """,,~~ F' ~ ,'. :f'.Ii.:.>-<(.f~'" . ""':"'~' . "">'~/.'i~''!'}!t:''';:':?~':';'~':' " o:;,:;"y~/:" ,j ..,'..' ..,." ~~'.;' TO -Honorable Jane A. Reiman Office of the Mayor" Carmel City Bldg 40E. Main Street Carmel, Indiana 46032 DATE SUBJECT June 1,1984 Promissory Note Hamilton-Western Settlement Dear Mayor Reiman; Enclosed is the origional Hamilton-Western Utility, Inc. negotiated earlier this year. file. I am advised by Mr. Willis Kunz that the release of should be in our hands by next week. I will continue to file to be certain that the final document is forwarded. Promissory Note signed on behalf of as required by the settlement agreement I have retained two (2) copies for my Mr. Wilfong monotor the Best regards, BLEECKER, BRODEY &,-,ANDREWS by Stephen K. Andrews SKA/pf Enclosure I'em II MLS.N72 II Wh..I.. G,,,,,p Inc.., 1982 FOLD AT (-) TO FIT DRAWING BOARD ENVELOPE /I EWl0P .. . . t\t;CEIVED JUN 4.I:Jtill KUNZ AND KUNZ OFFICE OF MAvon CARME!..IN LAWYERS WILLIS K. KUNZ HALBERT W. KUNZ DONALD L. BECKER1CH WILLIAM A. WADDICK THOM....S L. MATTIX S. GREGORY ZU6EK 320 N. MERIDIAN STREET INDIANAPOLIS. INDIANA 46204 AREA CODE 317 632-6367 May 30, 1984 Stephen K. Andrews, Esq~ Bleecker, Brodey & Andrews 2505 Willowbrook Parkway, Suite 312 Indianapolis, IN 46205 Re: Hamilton Western utilities, Inc. vs. City of Carmel, et al. Cause No. SC8l-404 Our File: H146(7) Dear Steve: Emclosed is the Installment Promissory Note of Hamilton Western for $94,835.29. In regard to the Release, we have made minor changes and will secure Ralph's signature and return a copy to you. I will also cover the adjustment in the billing set out in your letter. :::(k Willis K. Kunz WKK:mrh Enclosure VIA CERTIFIED MAIL NO. 3056280 ~. nJ;;\JJ;;IVc.U . . JUN 4 - l~lj4 OFFICE OF M"yon CARMEL. IN INSTALLMENT PROMISSORY NOTE $94.835.29 Final Installment Due Date: April 1. 1990 For value received, the undersigned promise to pay to the order of THE CITY OF CARMEL THROUGH ITS BOARD OF PUBLIC WORKS, the sum of Ninety-Four Thousand, Eight Hundred, Thirty- ___ Five Dollars and-Twenty-Nine- Gents--($94,835.29), -at Carmel, Indiana, or at such other place as the holder hereof may direct in writing, with interest upon the unpaid principal balance at the rate of Ten percent (10%) per annum from the date of this instrument until paid, with attorneys' fees and costs of collec- tion and without relief from valuation and appraisement laws, payment of principal and interest to be made as follows: Seventy-two (72) monthly payments of One Thousand, Seven Hundred Fifty-Six Dollars and Ninety Cents ($1,756.90), the first payment being due and payable together with the sewer service charges due and payable by Hamilton Western Utilities, Inc. in May, 1984 and each month thereafter until paid, with a final payment in April, 1990. Payments to be applied first toward interest -and then toward- principaL This note may be prepaid in full or in part on any interest paying date. The maker and endorsers jointly and severally waive demand, presentment, protest, notice of protest and notice of nonpayment or dishonor of this note. No delay or omission on the part of the holder hereof in the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial exercise by the holder hereof of any right or remedy shall preclude other or further exercise thereof or of any other right or remedy. Signed an; de1iv~re~~~~;a-r~~~~ Indian;-:~~; JL day of April, 1984. ATTEST: 4-~~ ka- Secretary By HAMILTON WESTERN I , " p -. . . H&;CfIVED JUN 8 - 1984 OFFICE OF MAYOR CARMEL IN RELEASE KNOW ALL MEN BY THESE PRESENTS, that the undersigned, Ralph L. Wilfong, Developer, for and in consideration of the City of Carmel, in part, settling its litigation and disputes with Hamilton Western Utilities, Inc., of which the undersigned, Ralph L. Wilfong, Developer, is sole stockholder, hereby releases and discharges the City of Carmel, and the Board of Public Works of the City of Carmel, and its employees, agents and servants from any and all claims, demands, actions or causes of actions, on account of or arising out of all matters which were alleged in the complaint filed in the Superior Court of Hamilton County on December 11, 1981 under Cause No. lS81-437 and venued to the Hancock Superior Court under Cause Number SC81-404. WITNESS my hand and seal, this / day of June, 1984. IN PRESENCE OF,: Willis K. Kunz Attorney for Developer I e Offt~Id1 I',~ ~_r;~~_w~~~ -.