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4. Said amount Is not due as Petitioner is entitled to a setoff of amounts for
which Petitioner performed recall services to Respondent's customers pUfsuant to the
terms of a certain Agfeement attached to as Exhibit A.
5. Said amount as claimed due by Respondent is not accurate, as Petltlonef
has also made payments which substantially reduced any amount which are due and
owing to Respondent.
6. Petitioner, through no fault of Its own, failed to timely file an appeal with the
Common Pleas Court and requests the opportunity that the Court permit the appeal nunc
pro tunc for the following reasons:
(a) Through the oversight of counsel for the Petitioner, Petitioner did not timely
file the appeal to the Court of Common Pleas;
(b) The delay in filing occasioned by the oversight of counsel In failing to
properly enter the date in his calendar;
(c) The delay caused by counsel's oversight Is only two business days and
four total days;
(d) Claim of Respondent Is actually part of a dispute which is currently pending
before this court and filed to numbef 94-5355 Civil Term, involving
breaches of covenants not to compete by Respondent and other claimed
breaches of the various contracts between and amongst the parties;
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Sl\IE OF ASSRm, tI:Jf-uAI='J.u\%f
AND 1~ CJ:IfllV\CltR '--=1U!Nl'
'DUS .I\GREP.Mml' is made as of tJ"",<-~ 'tl , 1991, between
KellOC1.J EnviuJI""""'l.d1 Sel:Vioes, liD. of 4705 Trin:Ue Road, MechanicsWrg,
PA ("KellC9:J" or "Seller") arx:I JlDII!S J\ntJD1y Wlllim1B, an irxUvidual of
Miller Gap Road, MechanicsWrg, PA (''Williams'' or "B.Iyer") arx:I Wward If.
Kellan an:! Ru:y E.P. F"allOC}J of 816 Anthony Drive, Mechanicsb.lI'g, PA
17055, sanetiJres referred to as "Kellogg" or "Seller", jointly arx:I
severally arx:I as shareholders, officers arx:I Directors of Kellogg
Environmental Services, Inc.
WI'lNESSFm: 'lhe parties hereto, interdirg to be legally bourxI
hereby agt'OO to the followirg t:ernB arx:I corxUtions:
ARl'ICLE I
ASSF.IS 'IU BE roRaWiED 1IND 'DWlSF'flt LIMl.'m.TIOOS
1.1. Assets to be PUrdJased. SUbject to the terms arx:I conditions of this
J\greement, Kellogg will convey, transfer, assign, sell am deliver to
Williams at Closirg, by bill of sale, endorsen-ent, assignment, or other
awropriate instruments, frea arx:I clear of all liens, claim9 or
eJ1CUIlbrances, arx:I Williams will p.trd1ase all of Kellogg's right, title am
interest in the followirg targible arx:I intargible assets used exclusively
in connection with the business known as Kellogg Environmental services,
Inc., MechanicsWrg, Pennsylvania. Notwithstanding anythirg to the
cxmtrary herein contained in this hjreemel1t, it is understood arx:I agreed
between the parties that all targible arx:I intargible assets hereinafter
described to be pllI:'dJased by 8.Jyer fran Seller arx:I any arx:I all duties arx:I
ooligations to be undertaken by 8.Jyer as part of the transactions
cxmtellplated by the parties hereto relate solely to the radon testirg arx:I
radon reduc...'1:ion, water arx:I ceptic ::J'stern ~ifications, hane inspections,
environmental audit, tennite inspections, contractirg, including painting,
maintenance, concrete slabs arx:I electrical, sunp-pit/mmp punp
installation arx:I repair, asbestos rerroval, hazardous waste remediation
arx:I tank SIJl:POrt setVices (hereinafter "radon testirg arx:I radon
reduction") business of Seller which currently cperates as a division of
Kellogg Enviroranental Services, Inc.
1.1.1 Madrlnery arx:I equipnent as follows:
1. 1985 Ford Van (85,000 miles)
2. l<an;Jo Hanroor Drill (1990)
3. Black & Decker Macho Hamner Drill 500
" . 1/2 inch lIole Shooters
Drills 150 (new) (3)
5. Miscellaneous Bits aoo Attachments
6. ladders
7. Desks arx:I Olairs
$ 3,000.00
800.00
300.00
200.00
100.00
100.00
500.00
8 . Shew Ilooth 200. 00
.. 9. SUbnergible Water I'lJntl with llooe 200.00
10. IIole IIog Milwaky 250.00
11. Flashlights (3); Cameral and Electrical Checkers (2) 50.00
12. Tools - Sawsl IIn.ives; lJrop Lights; and Extension Cords 200.00
13. R10nes (2) - 1InsWerm;, Machine 100.00
14. Traln!rg Material 100.00
15. 1985 Olevrolet Wagon 500.00
16. 1980 I<<ltiac 800.00
17. Sales Materials - Fee Schedules 100.00
18. Septic System; Prd:Jes; Snake wrenches; Dyes; etc. 50.00
19. organic Vapor 1Inalyzer 3.000.00
Total $10,550.00
1.1.2 Inventory OOI1flistm;, of: fans, fittings, pipes, pipe fittings,
radon test kits, and water test kits, as set forth on a schedule to be
initialed by Seller and aIyer at closirq.
1.1.3 All marketlrq and distrlb1tion information, includm;, but not
limited to custaner lists, distrlWtor lists, major veroor lists, product
literature and suwlier contacts.
1.1.4 All maintenance SUWlies, spare parts and otJler such miscellaneous
items of personal prqJEll1:y.
1.1.5 All p.trd1ase orders, rii]hts to p.trd1ase obligaticns but not any
outstarrllrq obligations thereof.
1.1.6 All insurances, telerhone I1\Jl1'bers and the like.
1.1. 7 All trade names; loges; product names; trademarks; trademark
awlications; and patents or patent aAllications, foreign or U.S.
1.1.8 All rights and interest in the name "Kellcc.R Environmental
setVioes" and any derivation thereof.
1.1.9 All cpmItlrq bJsiness data, client lists, records and information
and realtor cxmtact lists relatlrq to activities noted in ParagraIil 1.1
above.
1.1.10 All licenslrq ayL~,lel1ts, includlrq but not limited to, radon
testlrq and radon reduction, whether as licensee or licensor, and whether
in the rwre of the Seller or any enployee of Seller who, as part of this
lIyL=:&Uent receives a oonsultlrq or Wepement contractor ayLeement.
1.2 T.h,hUitv T.imltatlm. Nothing herein contained will operate as an
assunption by Williams of any liabilities of Kellcc.R kn<:M1 or unknown
except those liabilities and obligations ellpressly assumed by Williams
wxIer the tenrs of this J\g1:"eeIrent. Provided, however, that recalls by
custanere ("call-backs") in the lIJT'aU1t of $300.00 or less per call-backs,
with a max1nun1 mrount of all call-backs not to exceed $3,000.00, will be
assumed by williams. lIny balances or moounts for call-backs in excess of
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t';1e above ftl1DlII1tg will be the flnardal Iespollsibility of Kellogg, Who
will make payment to Williflm::J ....!thin thirty (30) days of receipt of a
written notice fran williams.
1.3 Perml>>"" l\ct.ivit1es of 1'lI>11er. With regard to environmental audits,
hazardous waste remediation am tank SlJHXlrt services, after Oeoember 31,
1992, Kellogg may erqage in these activities ally to the extent that atyer
is not actively involved therein. 1\ctive involvement is defined to mean
that for calerdar year beginnirq Januaty 1, 1992 am enUn;J DeceIrber 31,
1992, fuyer's activities in those areas JTUSt equal or exceed ten percent
(10') of his gross J.noane fran the I::usiness Which he is p.rrchaslrg urrler
this JIy.""",ent, or Kellogg will be permitted to engage in those
activities. Kellogg's involvement in enviroruoontal audits, hazardous
waste remediation am tank SlJHXlrt services shall be subject to this
restriction on an annual basis durlrg the tenn of this JIy.=nent.
lIRl'ICIB n
MrnIH:; MID IUJnIl\SB mrrn
~.1 ClosinJ. 'I11e closlrg of this h.ll~nent will take place at ~
~.M. local time on or before NovenVer 8, 1991 ("Closirg IXIte" or
"Closirg") at the offices of O:mnelly, Reid & Spade, 108-112 Walnut
street, flarrisb.1rg, Penrlsylvania or on such other date or at such other
time arrl,Ior place liS may 'Je nutually agreed upon in writlrg by Kellogg am
Williams/ but the effective date of this transaction will be January 1,
1992 ("Effective Dlte").
2.2 '....,.1 TitlV. On the effective date, Kellogg will sell am convey to
williams by aWIqlriate bills of sale, erxlorsements, assignnents am other
instruments of transfer am conveyance satisfactory in fom to c:amsel for
williams, all of the Transferred Assets aOO williams will payor cause to
be paid a portion of the purdJase price upon such terms am coooitions as
defined by this Article.
2.3 Jll.rrrilA_ Price for Tamible am Intamible Assets. '!he pn:chase
price for the tarqible am int:an;Jible assets of the Seller includin::J the
cotpOration (transferred assets) will be '!hirty Eight 'lllousard Fifty
($38,050.00) Dollars Which sum will consist of $2,500.00 for the inventory
of the Seller, $10,550.00 for the equipnent of the Seller as set forth on
Schedule f'. attached hereto, am $25,000 for goodwill of the Seller am
as agreed to by the parties.
2.3.1 PUrdlnse Price for the 0:Jvmant Not to CbmRt-". '!he purchase price
for the covenant not to carpete of the Seller cotpOration am its
irxUvidual shareholders, ~ B. Kellogg am Mary E.P. Kellogg at
Paragralil 4.1.16 of this J\greernent will be One JIUrdred 'lWenty Nine
'!hou.san:1 ($129,000.00) D:lllars as agreed to by the parties.
2.3.2 Tm".'<1.1o...1L a...u_+nr - a:nsultant 1\nl'N'O,o;:<,l. Williams agrees to
pay to Wward B. Kellogg the total sum of Ninety six 'lhousarrl ($96,000.00)
D:lllars in aooordanoe with tenns hereof am the Indeperdent Contractor-
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Ctlnsultant J\qt"eemmt attached hereto arit by reference herein incorporated
a~ to which the parties have. agreed.
2.3.3 (A) Williams IMY set-off by subtractin;J fran the balance due fran
Williams to I<ellogg, any lII1XlUJ1ts paid by Williams pJI'SUIUlt to Paragrnlit
8.6, inclu:UrX} oot not limited to daJMges, penalties, interest arx:l
attorneys' fees. In the event I(nllocn elects to defero, rather than
settle or pay any claim for which Williams has the right to be
irdemnified, then winiams shall have the further right to withhold
payme..'1t of the litigated claim fran any aIOOUllts due urxler the plrchase
price, lUltil such time as a final jOOgment is remered in the matter.
2.3.3(8)(1) SUm l\Iyable at Cloein;J In addition to the down payment of
$5,000.00 receipt of which is acknowledged by Seller at cloein;J, williams
shall pay to Kellogg the sum of Fifty 'lhousard ($50,000.00) Dollars to be
awlied to the transferred assets beln:J p1rd1aBed as set forth in
ParngrnIil 2.3 hereinabove.
2.3.3(8)(2) 'lhe balance of the purchase price of 'lW JluOOred Eight
'Il1ousam Fifty ($208,050.00) D::lllars shall be paid by Willinms to Kellogg
to be evideooed by a Note in the llIl'O.1Tlt of ('lW JluOOred 'Il1ousam
($200,000.00) Dollars in the fom as attached hereto as Elchibit I ,
payable JTOnthly, ccmnencln:J February 1, 1992 as follows:
(1) 0:mnencin;J February 1, 1992 arx:l each sucoessive month
thereafter durin;J calen:iar year eroln:J IJeoeJOOer 31, 1992 the sum
of $3,500.00, for a total of $38,500.00;
(2) 0:mnencln:J January 1, 1993 arxl each month thereafter durln:J
calen:lar year errlln:J Decenber 31, 1993 the sum of $7,500.00, for a
total of $90,000.00;
(3) 0:mnencln:J January 1, 1994 one payment of $5,500.00 due on
that date arxl cx:mnencin;J February 1, 1994 arx:l each successive
month thereafter durin;J calen:lar year ell:l!n:J DeoeIrber 31, 1994 the
sum of $3,500.00, for a total of $44,000.00; arx:l
(4) 0::mnencin;J January 1, 1995 arx:l each successive month
thereafter eOOin;J errlin;J SepteJrber 30, 1995 the sum of $3,500.00
am on October 1, 1995 one payment in the aJ10Jllt of $4,050.00, for
a total of $35,550.00.
2.3.3(8) (3) 'Il1e parties agree that all llIl'O.1Tlts payable hE!l:'ellOOer which
are not specifically allocated to inventory, equipnent arx:l goodwill will
be allocated to the covenant not to carpets ani the Irdeperx1ent Contractor
O:msultant }\yL<=I.ent between the parties.
2.4 Terminatiat of Pavment of I\1rchase Price. Notwithstarxling any other
provisions providin;J for a set-off of the payment of the purchase price by
Williams to Kellogg, it is W'demtood arx:l agreed among the parties that
if at anytiJoo within a perio:! not to exceed twenty-four (24) months fran
January 1, 1992, the radon testin;J license in the I1aIOO of El:lward B.
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l(!3.llogg inUvidually, should becx'tne unavailable to Kellogg Environmental
Services, (except einultaneoos replaClE!lreJlt of the radoo testin;J license in
the name of 8.Iyer) or the IIWllcaticil for lER license of llJyer and
transfer of the E:Iward B. Kellogg radon license is not catpletecl on or
before Jaruary 1, 1992, then at sudt tine all payments shall tenninate and
Seller or E:Iward B. Kella;R and Mary E.P. Kellogg, shall have no further
rights against williams or Kellogg Envit"OOlOOlltal setVioes whatsoever for
collection of the balance of the p.1l"d1ase price, exoept h~, if the
loss of license is due solely and directly to actions or inactions on the
part of Williams.
2.4.1 Hilt-....h.l Default bv B1ver. A material default on the terms,
oorrlitions am urrle.rtak.ings of the atyer to this Agreement which results
in the teIlllination of this lIyL=lent, will have as a result the forfeiture
of th. e bJsiness to Kellogg by ~~,~ cessation of ~.X'f-:enant not to 1
~~~~~QJ~~~'-r~.t&~~
2.5 ~<--o~ Price. NotwithstarxUng any other provision of
this JlyL=.ent in the event that DER does not awrave the license
awlication of 9.Iyer am transfer of the Wward B. Kellogg radon license
to 9.Iyer on or before January 1, 1992, then Kellogg will inrnediately
return to llJyer the sum of $55,000.00 which L"l'L sen~ ,the 5UJl'S paid to
~ urrler this JlyL'kt :fu~ Exhibits thereto, ~ ~
~i r ARriCIB III
IXlCI.tIDlIS J\NI) S(11FY11TR';
3.1 (k)co1!llPnt.. IUD Scfvd.les to be Deliwred. Kellogg has prepared for
Williams am will deliver to Williams prior to Closin;J the follawin;J
schedules, docuIrents am cq>ies required by this Article with t:e:;pect to
Kellogg.
3.2 RlIl"ries am FlInlovment; Au.~'~lls. A list referred to as Schedule
I, of all enployees, their (i) narres, (11) dates of birth, (ili) dates of
hire credited, (iv) present hourly rates or salaries, (v) ocpies of
enployment contracts, ayL"""'.ents or urrlerst:andin;Js, written or oral with
any enplcyee.
3.3 .....nr Vehicles. A list, referred to as Schedule II of all motor
vehicles, showin;J cost am depreciation.
3.4 LiUOl =8 IUD nmnits. A list, referred to as Schedule III of the
licenses am permits presently being used in connection with Kella;R
bJslness am ocpies thereof.
3.5 o.....rI!PT'I'1. To the extent available, a list of custanem reflecting
name am address, referred to as Schedule IV.
3.6 Licensinl J'uu""..""u.. A list, referred to as Schedule V of all
lioensin;J ayu=lTlents whether as licensee or licensor indicating
assignability am cq>ies thereof.
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3.7 -..trt IRY1Alts. A list, referred to as Schedule VI, of any an:! all
prepaid deposits or expenses.
3.e Pnllavee llerE1'it Plam. O:pies of all group insurance policies,
plans am other contracts or arrarqements pertainl.n:J t E!J1llloyee group
insuranoe, pension, profit shario:J, bonus, retirement or other similar
E!J1llloyee benefits to be referred to as Sd1edule VII.
3.9 Insu.<a........ A list, referred to as Schedule VIII containing a true
an:! lXIlplete schedule of all insuranoe policies or bin:lers of insurance
held by or at behalf of FSllOC}J or relating to FSllOC}J's rosiness or any
of KellOC}J's assets which will specify the insurer, the 8I1DlII1t of
coverage, the type of insurance, the risks insured, the expiration dats
the policy 11lIJTber, the IIl1lOUI1t of premilDlB, lUl:I any pending or ~ clai.m9,
whether or not wholly covered, as to am::mrt: thereun:ler.
3.10 Mah.,..lnl 0:t1tracts. A list referred to as Schedule IX of all
contracts, 1Ig..,(!lllents, carrnibnents, arraJJ:l~ts, evidences of liabilities
or obligations, not otherwise requested in this Article an:! whether or not
in the normal cwrse of rosiness, which may involve the receipt or
expe1Xliture after Closing of m:mies in excess of $100.00 or IOOre.
3.11 Tn,," A.....-,~Ils. A list an:! SlII1Il1Bl:Y description, referred to as
Schedule X, of :lnstroments an:! other documents relatin;J to imebtedness,
other than trade payable or trade receivables incurred in the ordinary
cwrse of rosiness, am ccpies of all notes, con:Utional sales contracts,
financing leases, am other security arrangements which enc:::urrl:ler title to
the Transferred Assets.
3.12 Litioatiat. A list am B\IIlI1lat'Y description, referred to as Schedule
XI, of all litigation ptooeedings am goverranental investigations or any
dlarge in the zoniIY:J or building ordJnanoes, pending or known to be
threatened, affecting any of the pJ:qJerties, assets or rosiness of
KellOC'R .
3.13 T"",.""rt Pl......-=tv. A list, referred to as Schedule XII, of all leases
relating to persooal or real pJ:qJerties, whether as lessor or lessee in
the naJOO of KellOC'R Envirorunental SetVioes, Inc. ani ccpies thereof.
3.14 PUrchase 0..),..... O:pies of all material pJrchase orders aOO/or
suwlier subcontracts anticipated to be ootstarning on the Closing Olte
referred to as Schedule XIII.
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l\R1'IClB 'IV
UK""""I4fI'ATIQfJ l\ND _ImllNl'lF.S
4.1 ~_ ,1.atim9 md Warrnntica bIr Jll>11~. Kellogg represents ard
warrants to WillillJll9, which representatioos am warranties shall survive
clos!rq, as rollOllS:
4.1.1 on the Effective Dlte, Kellogg will oorrroy to WillillJll9, good ard
marketable title to the TranSferred Assets, free ard clear of all liens,
claim9, dlargeG ard en:;urrbI"ll1'x:C8, except as specifically assumed in
writ!rq by willillJll9. Kellogg will irdemnify ard deferd WillillJll9 fran any
loss, daIrage, cost or expense, inclui!n;r reasonable attorneys' fees,
resultinJ fran a breach of the foreqoirg representation ard warranty.
4.1.2 To the knc1;Iledge of Kellogg, there are no litigatioos, proceedings
or investigatioos perrl!n;r, other than the STEPAIDVl'lOI ard vmnrnsKI
matters or threatened other than the C.\ouVv matter that might result
in any material adverse d1arge in the l:A.t9iness or pl...epects or con:iitions,
financial or othetWise, of KellOCJ:J or any of Kellogg'S personal property
conveyed hereurrlp.r, or that questions the validity of any nction taken or
to be taken by Kellogg p1r'SUlU1t to or in connection with the provisions of
this lv:lL..eI.lellt. Kellogg does not knc1;I of any basis for any such
litigations, prooeed!rqs or invt!Stigations.
4.1.3 No oontract has been entered into for the future sale or transfer
of any of the TranSferred Assets other than to willillJll9.
4.1.4 Title to, ard risk of loss or dest.nlction or dalrage to the property
be!rq p.u:chased will resrain in Kellogg until the Effective rate, at which
time title to the prq:>erty will pass to WillillJ1l9.
4.1.5 Kellogg has not knc1;I!rqly failed to dJtain any licenses, permit or
other governmental authorization neoe<''3Dty to the ownership, sale or use
of KellOCJ:J'S assets, which nol~lt->lianoe, violation or failure to dltain
might materially adversely affect the l:A.t9iness, ~tions, plu;pects,
properties, assets or corrlitions, financial or othetWise, of Kellogg ard
in particular, blt with~t limitirg the forego!n;r, Kellogg is not
knc1;I!n;rly in violation of any environmental, safety or health law, role or
regulation.
4.1.6 Kellogg has not off~, paid or agreed to pay, cUrect1y or
irdirectly, afrj I1'OIl8Y or anythirg of value, to any irdividual who is or
was an official or enployee of any foreign, federal, state, county or
local govenvnent or any deparbnent, ccmnission, board, bureau, agency or
other :lnstrurrentality thereof, or who is or was a director, officer or
enployee of any privatel:A.t9!ness, for the VJI1XlS8 or with the intent of
irouc!rq that irdividual, in his official capacity, to use his or her
influence to dJtain or maintain blslness for Kellogg or to othelWise
affect the b.1siness, ~tions prospects, properties, assets or
cxmdition, financial or otherwise, of Kellogg.
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4 ~1. 7 All l.Dlfilled orders ani cxmnitrrents of Kellogg for tile p.u:d1ase of
materials, SUWlies ard services pertainirq to Kellogg were made in the
usual ani ordinary ooorse of b.1siness.
4.1.8 Kellogg is not a party to, or in any way obligated urder, any
oontract for the payment of any fee, ocmnission or expense of any broker,
fi.rder or advisor in oonnection with the origin, negotiation, execution or
perfomance of this hjL""",lel1t, except a listirq a<jleeJ.ent dated May 14,
1991 with Jack Gaughen Realty, ani for the payment of which El:lward It.
Kellogg is solely lespollsible. .
4.1.9 To the knowledge of Kellogg, it is not in lMte.rial default of any
oontract which materially affects the bJsiness or cpmttions of Kellogg.
4.1.10 Kellogg will be responsible for any liability claims that are
made with respect to any Kellogg activities ccmucted prior to the
Effective Dotte ani will irrlermify ani hold harmless ani defen1 Williams
against any claims ard damages of whatever nature, includ!rq attorneys'
fees, for oontestirq the same.
4.1.11 Kellogg has good ani marketable title to all of its assets,
personal ani mixed, free ani clear of all liens, pledges, security
interests, charges, claims, restrictions, ani other encI.IlTbranoes of any
nature whatsoever.
4.1.12 Kellogg is not a party to any legal suit or action, not covered by
insurance, or any arbitration or other administrative proceedirq, perrlirq
or to their knowledge threatened, or any pr~h-.g whatsoever arisirq oot
of the enployer/enp1oyee relationship ard,Ior involvirq an alletJed
violation of any local, state or federal law, rule or regulation. In the
event Kellogg is a party to prooeedin;Js as specified herein, Kellogg shall
Wemnify ani hold harmless Williams fran any am all liability therefor..
4.1.13 Any liability for IlOnetary damages, 1nclud!rq b.1t not limited to
negotiated settlements, resultin;J fran Kallogg's action(s) or practioa(s)
in respect to any Kellogg enployee or enployees which ocx:urs prior to the
Effective Dotts will be the sole respalSibility of Kellogg, incllrlirq
liability for m:metary damages awarded an enployee for wages which may
have a=rued after the Closin;J Dotts to the date of any decree, settlement
or order awardirq such damages.
4.1.14 To the knowledge of Kellogg, all lists, ccpies am schedules
required by this J\greement will be CXllplete, valid ani accurately reflect
the infomation requested.
4.1.15 To the knowledge of Kellogg, the inventories of Kellogg are
currently beirq maintained at nomal levels believed to be adequate for
the continuation of Kellogg'S business as presently corducted.
4.1.16 Etlward V. Kellogg, am Mary E.P. Kellogg, jointly ard severally,
ani as Kellogg's shareholders ani amers of all the issued ani ootstandirq
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B~ock of KellCXJ:J am KellCXJ:J EhviI'lJllirental Services, Inc. the Seller.
herein, will not for a period of one (1) year fran the date of final
payment hereof in the CXlUIlties of DllJlirln, OJnberlam, Perry, lIdarrs,
l.ancaster ani York, Pennsylvania, withart: the prior written oonsent of
Williams, directly or irdirectly ~ or participate in any bJsiness
involvirq radon testirq am radon reduction as an in:lividual pIqlI'ietor,
enployee, CXlI1SUl.tant, partner, shareholder, director or the like, provided
however, that I'l:Jward It. KellCXJ:J an:l Mary E.P. KellCXJ:J may be solely
enployed by a federal, state or local agency in BUd1 bJsiness.
It is furtheor specifically acknowledged that a ~""eJy at law for breach of
the foregoirq warranty will be inadequate am that Williams, in addition
to other relief available to Williams, will be entitled to teIrp:lrary am
pennanent injunctive relief withrot the necessity of provirq actu.-\l
damages.
In the event this Section 4.1.16 is held to be in any respect: an
unreasonable restriction upon EtlwaItl 'tI. KellCXJ:J or Mary E.P. KellCXJ:J or
Kellogg Environmental Services, Inc. by any o::mt havirq caIpEltent
jurisdiction, the o::mt so holdirq may reduce the territory to which it
pertains aOO,Ior the period of time in which it operates or effect any
charge to the extent necessary to renler this Section enforceable by said
court. Said decision by a o::mt of CXItpltent jurisdiction will not
invalidate this 1\greernent rot this J\y~='lBnt will be CXlllStrued as not
containirq the invalidated provisions am the rights an:l obligations of
the parties will be interpreted, construed am enforced acx:ol:'tlirqly.
4.1.17 Kellogg is a corporation duly organized, validly existirq am in
good stan1irg W"Xler the laws of the O:Itm:lnWealth of Pennsylvania, is
qualified to transact bJsiness in the O:m1PnWealth of Pennsylvania am has
the corporate power to carry on its rosiness as JlClIoI oorrlucted.
4.1.18 '!he execution am delivery of this h:l~e.:."ent by Kellogg am the
perfornance of the transactions contenplated herein have been duly
authorized by the EKecutive O:muittee or Board of Directors of Kellogg ani
no further corporate action is required. '!be execution an:l delivery of
this J\qreement am the c:on.<l\lI11lr.::ition of the plrd1ase of the Transferred
Assets in carpliance with the teJ:mg hereof will not conflict with or
result in the breach of the charter or by-laws of Kellogg, resolutions of
Kellogg, or any term, coroition or provision of, or constitute a default
urrler, any in:lenture, mortgage, deed of trust or other contract, or
canrnitment to which Kellogg is a party or by which Kellogg may be ba.1rrl,
or result in the violation by Kellogg of any law, rule, regulations,
order, judgment or decree. '!be transactions cont:enplated by this
llgre<:':1'el1t may be CClIlSUI1I11ated withoot the necessity of obtainirq any
consent fran any party. Certified ~ies of the Executive O:muittee or
Iloard resolutions of KellCXJ:J are attached as Exhibit .1,..
4.2 ~~.",entatiCRJ ani Warranties of wlll.imIs. williams represents an:l
warrants to KellCXJ:J, which representations ard warranties shall SUlVive
closing, as follows:
9
4;2.1 williBITS is not a party .to, or in arrj way ooligated urde.r My
contract for the payment of arrj fee, ocmnission or expense of arrj broker
or firrler in oonnection with the origin, negotiation, pxecution or
performance of this }lqr'ee11e11t.
4.2.2 williBITS has received a ITDrtgage on his pIqlerty as required by
the Sept.enber 3, 1991 J\greElTlent between the parties which is attached
hereto as Exhibit .3 , am the time, ClOl'Xiitions, CXlVenants ani
w'Derstan:iirgs of the parties thereto of which are inoorporated by
referE!lXlEl herein.
4.2.3 Williams will oatply with all the tenTs, con:lltions ani
w'D~ of the Interface h,)L~t to be dated J""....~ - I llj!~ l.
between B.Iyer am Seller which Interface hjlee,ent is attached <&reto as
Exhibit ..!:L ani by reference herein incorporated.
JIRl'IClE V
mE-ID'tu:nllE IlI'I'm OmtNI'ICR3
5.1 unless the action was otherwise awroved (which awraval shall not be
unreasonably withheld) in advarPe in writJn.J by Williams, Kellogg
CXlVenants am agrees with respect to its Miness that fran ani after
Sept:eni:ler 3, 1991 until the Effective Dita Kellogg will:
5.1.1 Corduct Kellogg'S Miness only in the ordinary c::oorse, ani use ita
reasonable efforts to retain ita Miness organization am the goodwill of
SUWliers, cust:arers am others havJn.J tusiness relations with Kellogg ani
use ita best efforts to keep available the services of the present
errployees of Kellogg.
5.1.2 Not enter into, assume or creata arrj IOOrtgage, pledge, oorditional
sale or other title retention aYLe.:II'eJlt, lien, security interest,
enc::llIlbraooe or dlarge of arrj Idrd on the Transferred Assets.
5.1.3 Not incur arrj naterial ooligation for borrowed I1PIlBY or make arrj
extensions of credit, other than ordinary trade credit, loans or advan:es
to, or assume, guarantee, en:lorse, or otherwise J.,eocme liable with respect
to additional ooligations for Kellogg, which, as a result of such action,
Wt:Uld cause an adverse effect on the sale of the Transferred Assets.
5.1.4 At Kellogg's expense, naintain the Transferred Assets in custanary
repair, order am con:lltion, reasonable wear am use am damage by fire or
other casualty excepted.
5.1.5 Aa::ept custarer orders, issue quotations, estimates ani,lor
prqJOSals only in the usual am ordinary c::oorse of tusiness.
10
5:1.6 Not maka any ocmnttmmt for capital expen:litures for additions to .
ally facilities currently leased by Kellogg \>hich would loea.A"e a liability
or cbligatim of Willilll1'S as lessee.
5.1.7 Not (i) maka any increases in the oarpensatim payable or to ~I.e
payable to any of Kell~'s officers, enployees or agt!J1ts, or (ii) maka or
enter into any written enployment contract or any bonus, stock cpt:ion,
profit sharin], pension, reth"",ellt or other similar payrrent or
arrarqernent \>hich increase or ~ woold be effective past the
closing Date, except perks, ocmnissioos, salaries, bonuses or
reiJrb.u:sem3nts of any type \>hich do not legally birx:l Will iaJ1\9.
5.1.8 Maintain in force all the insurance policies covering Kellogg's
assets ard leased facility until the date of transfer of assets.
5.1.9 Not incur any liabilities or cbligatioos absolute or oontirgent
for Kellogg, except in the ordinary course of bJsiness or p.It'BU8Ilt to
existin] oontracts ard l'I<JL"""'leI1ts.
5.1.10 Not make any ocmnitrnents ext:errlin] beyoOO one year (except:
ocmnitrnents for periods in exoess of one year re1at:ing to the sale or
p.m::hase of Kellogg of goods am services for an mrount not in exoess of
$100.00 per transaction) to any one p.u:d1aser or ven:lor or group of
p..u:chasers or ven:lors.
5.1.11 Not enter into, renew, extE'rd, m:xlify, terminate or waive any
right urrler any lease or license.
5.1.12 Oxlperate with willians in cbt:aining, the transfer of any
licenses, titles or permits necessary for WillillI1\9' use of the Transferred
Assets .
5.1.13 PraTptly after knowledge thereof, provide WilliaJ1\9 with notice of
(i) litigation; (ii) anticipated litigation; (iii) suspension of any
license, permit or other goverranent:al authorization; (iv) insurance
cancellation; (v) any naterial termination of or material displte with
any material custaner or meniler; (vi) am termination or disp.lte ever any
licensing a<JL""""ent or financing lease l'I\lL="ent; (vii) custaoor
cancellations; (viii) claims; (u) SUWlier shortage or refusal to
deliver; (x) governmental agency or departmental notice, local, state or
federal, ooncemin:J any alleged violation of any law, rule or regulation
ard (xi) notices or correspoJrlenoe conoernirg liens, loans or encumbrances
affecting the Transferred 1\ssets.
5.1.14 Kellogg will employ WillillI1\9 frem November 1, 1991 until January
I, 1992 as an enployee at a gross salary of Foor 'lhou.san:l Dollars
($4,OOO.00)/per 1TOIlth, payable Wl:!ek.l.y plus reintA1rsement for mileage, all
car (:hone expenses am misoellaneoos Wsiness related expenses. Willians
agrees during said period to ["'...rform a minim.nn of 40 hours per week of
employment services necessary to educate himself in the cperation of the
radon testing ard radon reduction OOsiness, provided that if willians does
not work in any week he win not be paid for that week. .
11
. -
"
sa.l5 At any tine between NaveniJer 1, 1991 to June 30, 1992, Willilll1S
may enp1cy Seller's wife, Rn:y E.P. F.ellogg, at the rate of $10.00 per
hoor not to exceed 40 hours per week. 1111 services of Mary E.P. Kellogg
shall be at will am she agrees to subnit a written resignation in a form
as required by Williams at his request.
1IRl'IClB VI
aHll'l'RIlS OF Ma:mr. J\ND ala.u:ntflS
M OF 'D1B KI<I'I'l"'.lW 1MB
6.1 Will i......' O:nli tia1El.
actions required by Willilll1S
followin:j OOI'l:ii tions :
6.1.1 '!he representations am warranties of Kellogg herein cxmtained will
be true in all material respects as am at the Closing D1te with the B8IOO
effect as tl1c:u;Jh made at such date.
'!he ooligation of Wlllilll1S to take \:hose
on the Closing Date wlll be subject to the
6.1.2 Williams will have received all doc::umente am schedules required by
Article III.
6.1.3 An accurate listing of all office machinery, equipnent lUli
furniture with respect to the Kellogg facility, referred to as Schedule 11
will have been lXI1Flled am initialed as accurate by Kellogg.
6.1.4 Kellogg will have performed all ooligations, lXI1Flied with all
covenants am provided Williams with all notices required by this
1Igreement to be performed or lXI1Flied with by Kellogg.
6.1.S Any waivers or CXlI1SE!llte leasonably believed necessary by Williams'
oounsel will have been received in form am substance satisfactory to
oounsel.
6.1.6 1111 transactions contenplated hereby, am the form am substance of
all legal l't....o('DAllD3B am of all papers used or delivered hereurrler,
includin:j rot not limited to any lease and a Consulting J\yu,.lhleflt with
Etlward B. Kellogg will be in a form am substance reasonably satisfactory
to Williams am his oounsel.
6.1.7 No suit, action or other ptoc"""Hng to restrain, prd1.lbit or
otherwise affect the OOI1SUIlI1lation of this hJ.""",.ent which in the
reasonable judgment of Williams or his coonsel requires a delay of the
closin:j, or the termination of this hj.""",leIlt, will have been instituted
or threatened, am no inquiry or request fran any governmental agency with
respect to the transaction provided herein, which in the reasonable
judgment of Williams or its oounsel requires a delay of the Closing, will
have been received by williams.
12
'6'.~ Willi....... anllticnJ. 'Jlle cblitjation of willilllll9 to UIke thoSe'
aCtions required by Willilllll9 on the Effective Dlte will be subject to the
followin::J oordltions:
6.2.1 '!he l'T'._entations am warranties of Kellogg herein contained will
be true in all material respects as am at the Effective Dlte with the
smre effect as thoogh made at SI.Idl date.
6.2.2 Willilllll9 will have received all doa.nnents am schedules required by
Article III.
6.2.3 J\n acx:urate listin::J of all offioe IMchine.ry, equlpnent am
furniture with Iespect t.o the Kellogg facility, referred to as Sdledule .A.
will have been oarpiled ard initialed as accurate by Kellogg.
6.2.4 Kellogg will have perfonned all cbligations, oarplied with all
covenants ard provided Wil1i1llll9 with all notices required by this
l\greel1'ent to be perfonned or oarplied with by Kellogg.
6.2.5 Arrj waivers or consents reasonably believed neoessaxy by Willllllll9'
coonsel will have been received in fonn am substanoe satisfactoxy to
coonsel.
6.2.6 All transactions contenplatoo hereby, an:! the fOIm an:! subst:anoe of
all legal ploJOOdin3s ani of all papers used or delivered hereunder,
incllXlin::J bJt not limited to any lease an:! a omsultin::J lI':jle.!l1lellt with
Etlward B. Kellogg will be in a fonn an:! substaooe reasonably satisfactoxy
to Willilllll9 an:! his counsel.
6.2.7 Arrj an:! all pennits, awravals ani other actions of any
jurisdiction or authority required in the reasonable opinion of coonsel
for wil1i1llll9 for the lawful OOIlSlIJ11nation of the transactions contenplated
by this hj......,tent will have been dJtained, ani no SI.Idl pennit, awrcval or
other action will contain any provision which in the reasonable jlXlgment
of counsel for Willilllll9 will be un:h1ly OOrdensaoo.
6.2.8 Kellogg will sell ard convey to willilllll9 by aWJ:qJriate bills of
sale, crdorsements, assignments ani other insb:uments of transfer am
conveyance satisfactoxy in fOIm to counsel for Willilllll9, all of the
Transferred Assets.
6.2.9 No suit, action or other proceeding to restrain, prohibit or
othexwise affect the OOIlSlIJ11nation of this hj.=IOOIlt which in the
reasonable jlXlgment of Wil1i1llll9 or his coonsel requires a delay of the
closin::J, or the termination of this hj......,tent, will have been instituted
or threatened, an:! no in:)uixy or request fran any govemrrental agency with
respect to the transaction provided hersin, which in the reasonable
jlXlgment of Willilllll9 or its coonsel requires a delay of tile Cloein::J, will
have been received by Willians.
13
. .
.' 10
. .
6:3 Jla1.lOlX1 nnlitims.
those actions required by
following ocn:litions:
6.3.1 All transactions contenplated hereby, ani the form and substance of
all legal prooeed.in:Js ani of all papers used or delivered hereuOOer,
inclOOing, but not limited to any lease ani a O:msulting h:!L=>,ent with
Wward B. ~1lOCJ:J, will be in a fOLIO and t;ubstance reasonably satisfactory
to ~1lOCJ:J and its CJOOnSel.
'lhe obligaHons of J(ellOCJ:J hereumer to take .
it on the closing ~te will be subject to the
'. "
6.:).2 Williams will payor cause to be paid the III1'l:Mlt umer the teIl1\!l
and oonditions set forth in ParagraIit 2.3.
6.3.3 '!he representations am warranties of Williams herein ocmtained
will be true in all material xespects as of the Closing ~te with the sarna
effect as though made at such date.
6.4 1fE>1l0lX1 nnlltiCl\9. '!he obligations of J(ellOCJ:J hereumer to take
those actions required by it on the Effective ~te will be subject to the
following oornitions:
6.4.1 All transactions contenplated hereby, ani the form and substance of
all legal pxooee1Jn]s and of all papers used or delivered hereumer,
including, rot not limited to any lease and a CbnsUlting h:!l=.uent with
alward B. ~1lOCJ:J, will be in a form and substance reasonably satisfactory
to ~1lOCJ:J and its CJOOnSel. .
6.4.2 Williams will pc.y or cause to be paid the III1'l:Mlt umer the terms
and oornitions set forth in Paragralil 2.3.
6.4.3 '!he representations and warranties of williams herein contained
will be true in all material respects as of the Effective ~te with the
same effect as though mode at such date.
6.5 1fE>1l0Cll! and Will hili"" O:nUtims. As of the effective date, Eklward
B. ~1lOCJ:J, irdividually and James Anthony Williams, irdividually, will
provide evidence of cross-purchaSe life insurance policies in the initial
am:Mlt of $200,000.00 ead! to secure payment of the purd1ase price in the
event of the death of either party. Ead! will name the other as
beneficiary and payee of this policy in the event of death. Eadl party
will be respollslble for the payrrent of premiluns on the policy in the other
parties name and provide evidenoe in the form of a paid prenlum birder not
less than anrroally during the term of this IIyI.=>oont. '!he parties may
Jm.1tually agree in writlrg to prcp:lrtionally reduce the annual insurance
coverage on the lives of eadl other to reflect the decrease in the III1'l:Mlt
of the purd1ase price owned by 9.tyer to Seller.
14
ARl'IClE VII
ACl'lQf 'IO IE 'mREN ~TmmlIFH1' 'IO 'lJIB f"I'rnTIC
7.1 ....n,......'s Cbligatim. Kellogg agrees to the following obligations
subsequent to Closing:
7.1.1 If Williams will detennine that any fUrther 0Cll'1Ve}'<lJ10, assignment
or other doa.unents, or any fUrther action, is neoe!'MIY or aWrqJriate to
vest in or cx:nfer to williams fUll title to the Transferred Assets,
Kellogg will take sud1 action, and execute sud1 instruments, as williams
may reasa18b1y detennine to be necessary or awn:Priate to carry out the
p.u:poses of this J\greemeI1t, at the expense of Kellogg.
7.1.2 Kellogg will, in aCXXlrdanoe with Kellogg's noma1 record retention
schedule, retain, preserve and make available to williams durill;J noma1
b.1siness hoors for any proper fAlIPOSEl, any of the books and other papers
am records of Kellogg retained by Kellogg hereun:ler and will pemit
Williams to make CXllies and extracts t.herefran, exoept any and all tax
records or records pertaining solely to JOOnston lBboratories.
7.1.3 Kellogg will iroerratify, save and hold hannless williams arrl his
enp1oyees, officers arrl Directors of arrl fran any arrl all claim, suit,
liability, loss damage, cost or expenses, including reasonable attome}"3'
fees, resulting fran any breach of Kellogg's obligations umer this
llgreement existing prior to and inc11Xl!ng the date of this h;lleelnent or
thereafter cx:ming into beily;J by reason of any state of facts existing
prior to and inc11Xl!ng the Effective Dlte of this h:l.t=llellt or arising or
growing out of this h:l....ernent.
7.1.4 Kellogg will reasonably CJOqlE!rate with Williams at the request of
williams in all matters involving the CXlTp1etion am filing of Intemal
Revenue Service Form 8594.
7.2 win I......' alll"""I....... Williams agrees to the following obligations
subsequent to Closing:
7.2.1 'lb provide Seller with an iroividua1 financial statement, upon
\\tJich Kellogg is making substantial relianoe as part of this h:l.t=lent.
7.2.2 Williams will iroennify, save and hold harmless Kellogg arrl its
respective officers, partners, agents servante am enp1oyees, of and fran
any am all liability incurred after the Effective Dlte arising fran the
breach of Williams' obligations hereurx:ler.
15
JIRl'Icm VITI
'D'JMIHM'I(If RID MrnrE"IANFIIN llUITISla6
8.1 Ter:minatim. '!his l\greelrent may be tenn!nated by notice given on or
prior to the Cloelrq Dlte in the follcwlrq manner:
8.1.1 By either Willirors or KellOCR if a material default is made by the
other witll respect to the due am timely performaooe of any of its
oovenants am agreements contained herein, or with re,;pect to the aocuracy
or CX11pleteness of any of its representations am warranties contained
herein.
8.1.2 By Willirors if all of the oorditions set forth in section 6.1 of
this AgreeIrent will not have been satisfied on or before the cloelrq Dlte
or waived by Willirors on or before such date.
8.1.3 By KellOCR if all the CXlIY1ltions set fortJl in section 6.3 of this
h.l","""lIent will not have been satisfied on or before the Closlrq Dlte or
waived by on or before such date.
8.1.4 By I1Utual consent of willirors am KelIOCR.
8.1.5 By willirors if a material adverse c:I1aN:Je in the rosiness or
oordition, financial or othendse, of KellOCR will have occurred, or
KellOCR will have suffered a material loss or damage to any of its
properties or assets, am not repaired sarre or such dum;e, loss or damage
results in a material destruction of the Transferred Assets.
8.1.6 An election to terminate this Sale of Assets h.lL..ement as
hereinabove provided will be exercised on behalf of willirors,
iOOividually, am on behalf of KellOCR by its President.
8.1.7 In the event of the termination of this !l<jLt=,lel1t pmruant to the
provisions of this Article, this h.lL..ement will ~,e void dI'Xt of no
effect, without liability on the part of either party or its directors,
offioers, enplayees, agents and stockholders, in respect to this
1\qreement, other than the liability on the part of each party for its own
expenses incurred in oormection with the transactions oontenplated by this
Agreement, provided, however, that the $5,000.00 payment made by William
to KellOCR p.n:suant to the J\greement dated 5ept:.e!Irher 3, 1991 shall be
i.mnediately returned to Willirors.
8.2 SUrvival of Warranties. '!he warranties, representations am
oovenants of the parties hereto will SUlVive the Closlrq.
8.3 Risk of T........ At all times prior to the Effective Dlte, the risk of
loss with respect to the Transferred Assets wUI be with KellOCR. In the
event the Transferred Assets will be substantially or materially damaged
or destroyed by fire or other casualty, KellOCR will i.mnediat.ely notify
willirors in writlrq thereof am the extent thereof am pJ:"Cl1Pl:1y notify
16
'w1111811l9 whether it J.nten:ts to pt'CX'ee<d with the repair, r<'!'Itoration or,
rq;laoement to the quality as existed intnediately prior to the casualtyl
provided, however, in the event of total destnJct:ion WillilllOO may declare
this lyu""'''Elllt to be null ant void. Kellogg will maintain in full force
an:! effect until the Effective D3te all fire ant extended oaverage
insuranoe against suc::h risks am in suc::h amounts as c:urrently maintained.
8.4 DI~l,.i....... IT IS SP&:IFIClIILY ^~ BY '!lIE PlIRl'IES TO '!lUS
1IGRmIFNl' '!l11\T WIILIlI/oS IS roRal1\SIm OOLY CERI2\IN OOSIGll\TED JlSSETS F'RCM
m.ren:;. WIILIlI/oS ASSUMES 00 RESEaSIBILl.'lY FOR ANY LIlIBILl'l'IES OF
I<ELI.ClOO, ~ 00 tJNRtOo/tl, UNl1'SS cm~SE AlJVIlE) HEREm, 1\ND
SP&:IFIClIILY DISCIAIm ANY RESEaSIBILl.'lY FOR '!lIE I.ffiI\L OR TAX
IWIIFICATlOOS Wlual WJID BE GEllERl\TED BY '!lIE SI\IE OF 'l11E ~IHMENr,
INVENlURY 1\ND ASSETS OF KELr.O:X;.
8.5 Tramfer Taxes. Neither party to this Jlgreem<>...nt is aware of any
sales, use or excise or other similar taxes or fees arising out of the
cx:mveyance, transfer, assigronent, sale am delivery hereurrler of the
assets to be transferred, Wt: if any are levied against either of them,
they will be paid by Williams, provided however, that any DER awlication
fee to be paid by Williams to qualify for the corporate radon license will
be paid one-half by Wil11ams am one-half by Kellogg. lIny renewal fees
will be Williams' ~pollsibility.
8.6 D.1lk Transfers. Kellogg ngree.'3 to irrlE!l1Vlify ant deferrl Williams
against any clains am damages of whatever nature including attorneys I
fees, for rontesting the saJOO, ant assessrrents against Williams by any
creditor of Kellogg for I1OIlOCI1plianoe with the Pennsylvania &Ilk Transfers
law which may IJe applicable to the sale or transfer of the Transferred
Jl.ssets .
8.7 ElcooI e 9. Ead1 party will bear its own expenses ant fees incurred in
oormection with this JIgreement ant the transactions oontenplated hereby,
including withem: limitation fees am expenses of aoca.mtants, awraisers
ant attorneys.
8.8 CDuntm-nn+... ltrrf number of counterparts of this 1\ql=<l'lel1t may be
signed ant delivered am each will be considered an original ant together
they will oonst!tute one Etyu""lIlent.
8.9 Govmnin:r law. '!his JIgreement will be executed, construed ant
performed in accortlanoe with the laws of the O:mrcnwealth of Pennsylvania.
8.10 Entire l\u,~'...jL. '!his lIr:lLt=l,.ent constitutes the entire agl=<lllel1t
between the parties pertaining to its subject matter am supersedes all
prior am conl:enJlOraneous negotiations, aYL....ments ant urrlerstandings,
written or oral, of the parties in oormection with it. No representation,
covenant or oorrlition not expressed in this lyL=<l,.ent will affect or be
effective to interpret, charge or restrict this Jlyl=<l,ent. No amerrlment,
modification, tennination or attenpt:ed waiver of any of the provisions of
this 1\greement: will be binding on the parties unless in writing signed by
both parties. No waiver of any provision of or default urrler this
17
. . .
" 'Jlgreeoont will affect the right Clf the.. parties thereurrler to enforoe any.
. . '. other provision or to exercise any right or lt~IWy in the event of any
other default, wi1ether or not similar.
8.ll NnH"..... All notices, demards ani other amttmications which are
required to be given to or nade by either party to the other in oonnection
with this J\greelnent will be in writirq, will be deemed to have been given
when posted by certified or registered mail or when receipt of a oourier
express, telegram, cable or telex has been acknowledged too the followirq
addresses :
If to Kellogg Environnental Sezvices, Inc.:
4705 Trirdle Road
Mechanicsburg, FA 17055
If to n!ward B. Kellogg ard Mary E.P. Kellogg:
816 Anthony Drive
Mechanicsburg, PA 17055
If to williams:
P.O. Box 1002
Millers Gap Road
Mechanicsburg, PA 17055
With Ccpy To:
Connelly, Reid & Spade
Attn: James E. Reid, Jr.
108-112 Walm.It street
P.O. Box 963
HarrisWrg, PA 17108
If notice is personally delivered, the .in:Uvidua1 acoeptirq such notice,
if requested, will sign a duplicate of the notice to evidence receipt
thereof.
8.12 ~.les. Schedules referred to herein which have not been
attached hereto at the time of the execution of this J\greelnent will, by
the consent of the parties, signifioo by the parties' initials on the
ack:lition be later attached or carpleted ani be deemed a part of this
J'v,ju,,,~nent as if attached hereto at the time of execution.
8.13 11A;v11~. '!he headirgs to the various sections of the Jlgl~lleIlt
have been inserted for convenient reference only am will not to any
extent have the effect of nrxllfyirq, lII1lBn1irq or changirq the express
tenns am provisions of this Jlgu"'lIlent.
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6.
50/100 ($7,342.50) Dollars, and that is the amount
owing to Johnston Laboratories, Inc. plus interest.
Denied. To the contrary, Petitioner has railed to
timely rile an appeal in that the actions or Real
Estate Environmental Services, Inc.'s attorney should
be imputed to Real Estate Environmental Services. By
way of further answer, Plaintiff states as follows:
(a) Denied that this is a valid reason for an appeal
nunc pro tunc. To the contrary, the thirty (30)
time period is to be strictly construed and Real
Estate Environmental Services, Inc. has waived
its right to file an appeal by not doing so in a
timely fashion. Nor has Petitioner claimed that
it was not represented by counsel as an excuse
for failing to file in a timely manner. To the
contrary, the Petitioner's counsel knew of this
action before the hearing before District
Justice Farner.
(b) Denied that the negligence of counsel is a valid
reason for this Court to permit an appeal nunc
pro tunc.
(c) While it is admitted that the delay is two (2)
business days and four (4) calendar days, it is
denied that this delay is explainable or that
Defendant has a valid defense to the amounts
- 2 -
entered in the judgment, and accordingly this
Court should not permit an appeal nunc pro tunc.
(d) Denied. The caee riled to No. 94-5355 concerns
alleged breaches of a covenant not to compete
and has nothing at all to do with the accounts
receivable owed by Derendant to Plaintirf.
(e) Denied. If Defendant/petitioner felt that
Respondent was not entitled to the Seven
Thousand Three Hundred Forty-Two and 50/100
($7,342.50), Defendant should have appeared in
front of District Justice Farner to contest the
amount due. Alternatively, Defendant should
have filed an appeal to this Court within the
time provided by the rules of court. Should
this matter be allowed to proceed nunc pro tunc,
it is in fact Defendant who will be unjustly
enriched as Plaintiff will be unable to collect
amounts that are due and owing to Plaintiff.
(f) Denied. To the contrary, Johnston Laboratories,
Inc. will suffer great prejudice if it is not
allowed to collect the Seven Thousand Three
Hundred Forty-Two and 50/100 ($7,342.50) Dollars
owed to it by Defendant. Further, if Plaintiff
is forced to go through additional litigation,
which will first need to be heard by a board of
arbitrators because of the amount in controversy
- 3 -
with a later de novo appeal to this Court,
Johnston Laboratories, Inc. will incur
substantial legal fees which it will not be able
to recover from Real Estate Environmental
Services, Inc. This expense will greatly
prejudice Plaintitt, Johnston Laboratories, Inc.
Further, by being denied the monies owed to it
by Defendant as determined by District Justice
Farner, Plaintiff will be prejudiced as other
intervening judgments against Defendant would
cause Plaintiff's judgment to lose priority or
Defendant's cessation of business or illiquidity
would cause great harm to Johnston Laboratories,
Inc.
WHEREFORE, because Petitioner has not demonstrated good
cause for its failure to comply with the Rules of Court, and
because Respondent would be prejudiced by the untimely appeal,
Respondent respectfully requests that this Court deny
Petitioner's Petition for Allowance of Appeal.
NEW HATTER
7. Defendant/Petitioner had notice of the hearing before
District Justice Farner.
B. Defendant/Petitioner did not appear at the hearing
before District Justice Farner.
- 4 -
JOmrSTO. IJUlORATOIlIBS, INC., I IN THB COURT OW COHKOH PLEAS
Plaintiff I CUMBERLAND COUNTY, PENNSYLVANIA
I
v. I NOI 94 - 708' CIVIL TERK
I
IlBAL BSTATI BHVIRONHBNTAL I
SERVICEO, INC., I
Defendant I CIVIL ACTION - LAW
PRAECIPE
TO THB PROTHONOTARY or CUMBERLAND COUNTY I
Please mark the Defendant's Appeal HwlJ;1 fl:2 ~ as withdrawn.
Respectfully submitted,
CONNELLY, REID' SPADE
Datel 7.,.0 0 - 91,-
By:
J hn
08- 12
.BoX 963
arrisburg, PA
(717) 238-4776
(717) 238-4793 Telecopier
D.B. # 23859