2004


UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 


 

FORM 10-Q

 


 

x Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

For the quarterly period ended June 30, 2004

 

¨ Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

For the transition period from              to             

 

Commission file number 1-14105

 


 

AVALON HOLDINGS CORPORATION

(Exact name of registrant as specified in its charter)

 


 

Ohio   34-1863889

(State or other jurisdiction

of incorporation or organization)

 

(I.R.S. Employer

Identification No.)

One American Way, Warren, Ohio   44484-5555
(Address of principal executive offices)   (Zip Code)

 

Registrant’s telephone number, including area code: (330) 856-8800

 


 

Indicate by a check mark whether the registrant (1) has filed all reports required to be filed by section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes   x     No   ¨

 

The registrant had 3,185,240 shares of its Class A Common Stock and 618,091 shares of its Class B Common Stock outstanding as of August 11, 2004.

 



AVALON HOLDINGS CORPORATION AND SUBSIDIARIES

 

INDEX

 

          Page

PART I. FINANCIAL INFORMATION

    
     Item 1.    Financial Statements     
     Condensed Consolidated Statements of Operations for the Three and Six Months Ended June 30, 2004 and 2003 (Unaudited)    3
     Condensed Consolidated Balance Sheets at June 30, 2004 (Unaudited) and December 31, 2003    4
     Condensed Consolidated Statements of Cash Flows for the Six Months Ended June 30, 2004 and 2003 (Unaudited)    5
     Notes to Condensed Consolidated Financial Statements (Unaudited)    6
     Item 2.    Management’s Discussion and Analysis of Financial Condition and Results of Operations    11
     Item 4.    Controls and Procedures    18

PART II. OTHER INFORMATION

    
     Item 1.    Legal Proceedings    19
     Item 2.    Changes in Securities and Use of Proceeds    19
     Item 3.    Defaults upon Senior Securities    19
     Item 4.    Submission of Matters to a Vote of Security Holders    19
     Item 5.    Other Information    19
     Item 6.    Exhibits and Reports on Form 8-K    19

SIGNATURE

   20

 

2


PART I. FINANCIAL INFORMATION

 

ITEM 1. FINANCIAL STATEMENTS

 

AVALON HOLDINGS CORPORATION AND SUBSIDIARIES

Condensed Consolidated Statements of Operations (Unaudited)

(in thousands, except per share amounts)

 

    

Three Months Ended

June 30,


   

Six Months Ended

June 30,


 
     2004

    2003

    2004

    2003

 

Net operating revenues

   $ 7,261     $ 7,213     $ 13,501     $ 12,316  

Costs and expenses:

                                

Costs of operations

     5,888       5,843       11,130       10,262  

Selling, general and administrative expenses

     1,545       1,833       3,068       3,365  
    


 


 


 


Operating loss from continuing operations

     (172 )     (463 )     (697 )     (1,311 )

Other income:

                                

Interest income

     39       48       77       95  

Other income, net

     29       29       73       71  
    


 


 


 


Loss from continuing operations before income taxes

     (104 )     (386 )     (547 )     (1,145 )

Provision (benefit) for income taxes

     —         —         —         —    
    


 


 


 


Loss from continuing operations

     (104 )     (386 )     (547 )     (1,145 )

Discontinued operations:

                                

Loss from discontinued operations before income taxes 1

     (2,413 )     (1 )     (3,028 )     (221 )

Provision (benefit) for income taxes

     —         —         —         —    
    


 


 


 


Loss from discontinued operations

     (2,413 )     (1 )     (3,028 )     (221 )

Net loss

   $ (2,517 )   $ (387 )   $ (3,575 )   $ (1,366 )
    


 


 


 


Net loss per share from continuing operations

   $ (.03 )   $ (.10 )   $ (.14 )   $ (.30 )
    


 


 


 


Net loss per share from discontinued operations

   $ (.63 )   $ —       $ (.80 )   $ (.06 )
    


 


 


 


Net loss per share (Note 3)

   $ (.66 )   $ (.10 )   $ (.94 )   $ (.36 )
    


 


 


 


Weighted average shares outstanding (Note 3)

     3,803       3,803       3,803       3,803  
    


 


 


 



1 Includes loss on write-down of costs in excess of fair market value of net assets of acquired businesses of $538 and loss on write-down of long-lived assets of $2,319.

 

See accompanying notes to condensed consolidated financial statements.

 

3


AVALON HOLDINGS CORPORATION AND SUBSIDIARIES

Condensed Consolidated Balance Sheets

(in thousands, except per share amounts)

 

    

June 30,

2004


    December 31,
2003


 
     (Unaudited)        

Assets

                

Current assets:

                

Cash and cash equivalents

   $ 4,216     $ 3,224  

Short-term investments

     1,399       —    

Accounts receivable, net

     4,299       3,620  

Prepaid expenses

     715       1,598  

Other current assets

     274       218  

Current assets – discontinued operations

     7,255       8,819  
    


 


Total current assets

     18,158       17,479  

Noncurrent investments

     199       6,009  

Properties and equipment, less accumulated depreciation and amortization of $4,120 in 2004 and
$ 3,755 in 2003

     18,039       18,392  

Other assets, net

     63       80  

Noncurrent prepaid rent

     4,646       324  

Noncurrent assets – discontinued operations

     2,976       6,770  
    


 


Total assets

   $ 44,081     $ 49,054  
    


 


Liabilities and Shareholders’ Equity

                

Current liabilities:

                

Accounts payable

   $ 2,719     $ 4,035  

Accrued payroll and other compensation

     344       230  

Accrued income taxes

     225       242  

Other accrued taxes

     113       295  

Other liabilities and accrued expenses

     1,607       1,447  

Current liabilities – discontinued operations

     3,738       3,885  
    


 


Total current liabilities

     8,746       10,134  

Shareholders’ equity :

                

Class A Common Stock, $.01 par value

     32       32  

Class B Common Stock, $.01 par value

     6       6  

Paid-in capital

     58,096       58,096  

Accumulated deficit

     (22,793 )     (19,218 )

Accumulated other comprehensive income (loss)

     (6 )     4  
    


 


Total shareholders’ equity

     35,335       38,920  
    


 


Total liabilities and shareholders’ equity

   $ 44,081     $ 49,054  
    


 


 

See accompanying notes to condensed consolidated financial statements.

 

4


AVALON HOLDINGS CORPORATION AND SUBSIDIARIES

Condensed Consolidated Statements of Cash Flows (Unaudited)

(in thousands)

 

     Six Months Ended
June 30,


 
     2004

    2003

 

Operating activities:

                

Loss from continuing operations

   $ (547 )   $ (1,145 )

Reconciliation of loss from continuing operations to cash provided by operating activities:

                

Depreciation and amortization

     383       406  

Amortization of investments

     5       34  

Provision for losses on accounts receivable

     62       290  

Gain from disposal of property and equipment

     1       (1 )

Gain on sale of investments

     (2 )     —    

Change in operating assets and liabilities:

                

Accounts receivable

     (741 )     (871 )

Prepaid expenses

     883       865  

Other current assets

     (56 )     (78 )

Noncurrent prepaid rent

     (4,322 )     —    

Other assets

     17       2  

Accounts payable

     (1,316 )     (118 )

Accrued payroll and other compensation

     114       67  

Accrued income taxes

     (17 )     52  

Other accrued taxes

     (182 )     (137 )

Other liabilities and accrued expenses

     160       416  
    


 


Net cash used in operating activities from continuing operations

     (5,558 )     (218 )

Net cash provided by operating activities from discontinued operations

     1,377       792  
    


 


Net cash (used in) provided by operating activities

     (4,181 )     574  
    


 


Investing activities:

                

Purchase of available-for-sale investments

     —         (2,014 )

Maturities of available-for-sale investments

     —         1,935  

Sales of available-for-sale investments

     4,398       —    

Capital expenditures

     (110 )     (61 )

Proceeds from disposal of property and equipment

     79       1  
    


 


Net cash provided by (used in) investing activities from continuing operations

     4,367       (139 )

Net cash provided by (used in) investing activities from discontinued operations

     806       (48 )
    


 


Net cash provided by (used in) investing activities

     5,173       (187 )
    


 


Increase in cash and cash equivalents

     992       387  

Cash and cash equivalents at beginning of year

     3,224       1,190  
    


 


Cash and cash equivalents at end of period

   $ 4,216     $ 1,577  
    


 


 

See accompanying notes to condensed consolidated financial statements.

 

5


AVALON HOLDINGS CORPORATION AND SUBSIDIARIES

Notes to Condensed Consolidated Financial Statements

(Unaudited)

June 30, 2004

 

Note 1. Basis of Presentation

 

The unaudited condensed consolidated financial statements of Avalon Holdings Corporation and subsidiaries (collectively “Avalon”) and related notes included herein have been prepared in accordance with the rules and regulations of the Securities and Exchange Commission. Accordingly, certain information and footnote disclosures normally included in financial statements prepared in accordance with generally accepted accounting principles have been omitted consistent with such rules and regulations. The accompanying unaudited condensed consolidated financial statements and related notes should be read in conjunction with the consolidated financial statements and related notes included in Avalon’s 2003 Annual Report to Shareholders.

 

In the opinion of management, these unaudited condensed consolidated financial statements include all adjustments, consisting of normal recurring adjustments, necessary for a fair presentation of the financial position of Avalon as of June 30, 2004, and the results of its operations and cash flows for the interim periods presented.

 

The operating results for the interim periods are not necessarily indicative of the results to be expected for the full year.

 

Note 2. Revenue Recognition for Golf Operations

 

With the addition of the Squaw Creek Country Club facilities in November 2003, the Avalon Golf and Country Club will be open year round instead of just during the golf season. Membership in the Avalon Golf and Country Club entitles members to use both the Avalon Lakes golf course facilities and the Squaw Creek Country Club facilities. As a result, net operating revenues associated with membership dues will be prorated monthly over the entire year beginning with the first quarter of 2004. Previously, net operating revenues associated with membership were recognized during the months of May through October, which generally represented the golf season.

 

Note 3. Basic Net Income (Loss) Per Share

 

Basic net income (loss) per share has been computed using the weighted average number of common shares outstanding each period, which was 3,803,331. There were no common equivalent shares outstanding and therefore diluted per share amounts are equal to basic per share amounts for the three month and six month periods ended June 30, 2004 and 2003.

 

Note 4. Investment Securities

 

Avalon held available-for-sale securities of $1,598,000 and $6,009,000 at June 30, 2004 and December 31, 2003, respectively which are included in the Condensed Consolidated Balance Sheets under the captions “Short-term investments” and “Noncurrent investments”. As a result of the classification of these securities as available-for-sale, Avalon has recognized unrealized losses, net of applicable income taxes, of $17,000 and $10,000 during the three month and six month periods ended June 30, 2004, respectively, as a component of other comprehensive income (loss). For the three month and six month periods ended June 30, 2003, Avalon recognized unrealized losses of $25,000 and $45,000, respectively, as a component of other comprehensive income (loss). Accumulated other comprehensive income (loss) consisted of a loss of $6,000 at June 30, 2004 and income of $4,000 at December 31, 2003.

 

6


Information regarding investment securities consists of the following (in thousands):

 

     June 30, 2004

   December 31, 2003

     Amortized
Cost


   Gross
Unrealized
Losses


    Estimated
Fair
Value


   Amortized
Cost


   Gross
Unrealized
Gains


   Estimated
Fair
Value


Available-for-Sale:

                                          

U.S. Treasury Notes

   $ 1,604    $ (6 )   $ 1,598    $ 6,005    $ 4    $ 6,009

 

The amortized cost and estimated fair value of available-for-sale investments at June 30, 2004, by contractual maturity, consist of the following (in thousands):

 

     Available-for-Sale

     Amortized
Cost


   Estimated
Fair Value


Due in one year or less

   $ 1,404    $ 1,399

Due after one year through five years

     200      199
    

  

Total

   $ 1,604    $ 1,598
    

  

 

Note 5. Comprehensive Income (Loss)

 

Comprehensive income (loss) is comprised of two components: net income (loss) and other comprehensive income (loss). Comprehensive income (loss) is the change in equity during a period from transactions and other events and circumstances from non-owner sources. The unrealized gains and losses, net of applicable taxes, related to available-for-sale securities is the only component of “Accumulated other comprehensive income (loss)” in the Condensed Consolidated Balance Sheets for Avalon. Comprehensive income (loss), net of related tax effects, is as follows (in thousands):

 

     Three Months Ended
June 30,


    Six Months Ended
June 30,


 
     2004

    2003

    2004

    2003

 

Net loss

   $ (2,517 )   $ (387 )   $ (3,575 )   $ (1,366 )

Unrealized loss on available-for-sale securities

     (17 )     (25 )     (10 )     (45 )
    


 


 


 


Total comprehensive loss

   $ (2,534 )   $ (412 )   $ (3,585 )   $ (1,411 )
    


 


 


 


 

Note 6. Prepaid Rent

 

Avalon entered into a long-term agreement with Squaw Creek Country Club to lease and operate its golf course and related facilities. The lease, which commenced November 1, 2003, has an initial term of ten (10) years with four (4) consecutive ten (10) year renewal term options unilaterally exercisable by Avalon. Under the lease, Avalon is obligated to pay $15,000 in annual rent and make leasehold improvements of $150,000 per year. Amounts expended by Avalon for leasehold improvements during a given year in excess of $150,000 will be carried forward and applied to future leasehold improvement obligations and classified as prepaid rent. At June 30, 2004, the balance of prepaid rent is $4,796,000 of which $150,000 is included in the Condensed Consolidated Balance Sheets under the caption “Prepaid expenses”, and $4,646,000 is included under the caption “Noncurrent prepaid rent”. At December 31, 2003 the balance of prepaid rent was $474,000 of which $150,000 was included in the Condensed Consolidated Balance Sheets under the caption “Prepaid expenses” and $324,000 was included under the caption “Noncurrent prepaid rent.”

 

7


Note 7. Discontinued Operations

 

As previously disclosed, Avalon had been evaluating the business and prospects of its transportation operations in light of its financial performance over the past few years. Such evaluation included an examination of each type of transportation service provided and measures needed to increase the profitability of these services, as well as the consideration of other strategic alternatives including, without limitation, the discontinuation of certain operations. In connection with the transportation of municipal solid waste, Avalon’s transportation operations provided loading services at several municipal solid waste transfer stations. The profitability of such operations was dependent upon the volume of waste delivered to each transfer station. The volume of waste delivered to each transfer station was not within Avalon’s control and had been less than anticipated. During the second quarter of 2004, Avalon ceased transportation operations at three Massachusetts’ municipal solid waste transfer stations. In conjunction with the cessation of these transfer station operations, Avalon closed its Oxford, Massachusetts terminal. Also, during the second quarter Avalon sold approximately $.2 million of idle assets of the transportation operations and recognized a gain of approximately $.4 million.

 

In addition, on June 25, 2004, Avalon announced that it had reached an agreement in principle to sell all of the common stock of DartAmericA, Inc. (“DartAmericA”), Avalon’s transportation operations, to BMC International, Inc. (“BMC”). Based upon the proposed selling price and in accordance with Avalon’s asset impairment policy, Avalon recorded a write-down of costs in excess of fair market value of net assets of acquired businesses (“goodwill”) of approximately $.5 million and a write-down of the long-lived assets of approximately $2.3 million. The results of operations of the transportation operations for the current and prior years, including the write-down of goodwill and long-lived assets, have been included in discontinued operations.

 

On July 15, 2004, Avalon completed the sale of DartAmericA for a selling price of approximately $4.2 million. At the closing, BMC delivered to Avalon $3 million in cash and a secured promissory note of $1 million payable over 60 months. The balance of the selling price, $.2 million, was based upon changes in certain of DartAmericA’s balance sheet items from March 31, 2004 to June 30, 2004. Such balance is payable within two (2) business days of agreement upon the Consolidated Balance Sheet of DartAmericA as of June 30, 2004 and calculation of the final adjustment to the initial purchase price. By purchasing the common stock of DartAmericA, BMC also acquired DartAmericA’s wholly owned subsidiaries including Dart Trucking Company, Inc. (“Dart”) and Dart Services, Inc. and assumed Dart’s operating lease obligations of approximately $5 million. Prior to the completion of the sale, DartAmericA transferred to Avalon, Dart Realty, Inc., a wholly owned subsidiary of DartAmericA, which owned the Canfield, Ohio terminal. Avalon intends to sell this facility. As a result, this facility is classified as held-for-sale and the expenses related to the maintenance and operation of this facility are included in discontinued operations. In addition, DartAmericA transferred to Avalon all of the accounts receivable outstanding for more than 60 days as of June 30, 2004. Such receivables amounted to approximately $.5 million, net of the allowance for doubtful accounts.

 

Avalon’s environmental remediation operations had continued to experience operating losses as a result of a decline in net operating revenues and operational inefficiencies. Recognizing that the continuing losses incurred by the environmental remediation business would adversely impact Avalon’s future financial performance, in the fourth quarter of 2003, management determined that it was in Avalon’s best interest to sell or discontinue the operation of the environmental remediation business. In January 2004, Avalon sold all of the fixed assets of the remediation business for $.2 million and recorded a gain of $.1 million on the sale. As part of the transaction, the purchaser assumed all of the remediation business’ obligations relating to ongoing projects. The remediation business retained all of its other liabilities and assets, including cash and accounts receivable. The results of operations of the remediation business have been included in discontinued operations.

 

8


The financial results of Avalon’s technical environmental engineering and consulting business had been at a level lower than expected. The business began to experience losses and Avalon believed that the losses were likely to continue in the future. Accordingly, in the fourth quarter of 2003, management determined that it was in Avalon’s best interest to discontinue the operations of the engineering and consulting business. In January 2004, Avalon discontinued such operations and the results are included in discontinued operations.

 

Concurrent with the decision to discontinue the technical environmental engineering and consulting business, Avalon decided to sell the building associated with the technical environmental services operations. As a result, the building is classified as held-for-sale and the expenses related to the maintenance and operation of the building are included in discontinued operations.

 

Note 8. Legal Matters

 

In the ordinary course of conducting its business, Avalon also becomes involved in lawsuits, administrative proceedings and governmental investigations, including those related to environmental matters. Some of these proceedings may result in fines, penalties or judgments being assessed against Avalon which, from time to time, may have an impact on its business and financial condition. Although the outcome of such lawsuits or other proceedings cannot be predicted with certainty, Avalon does not believe that any uninsured ultimate liabilities, fines or penalties resulting from such pending proceedings, individually or in the aggregate, would have a material adverse effect on it.

 

Note 9. Business Segment Information.

 

In applying Statement of Financial Accounting Standards (SFAS) No. 131, “Disclosures About Segments of an Enterprise and Related Information”, Avalon considered its operating and management structure and the types of information subject to regular review by its “chief operating decision maker.” On this basis, Avalon’s reportable segments include waste management services and golf and related operations. Avalon accounts for intersegment net operating revenues as if the transactions were with third parties. The segment disclosures are presented on this basis for all periods presented.

 

The waste management services segment provides hazardous and nonhazardous waste management services to industrial, commercial, municipal and governmental customers and manages a captive landfill for an industrial customer. The golf and related operations segment operates two golf courses, a travel agency and a clubhouse that provides dining and banquet facilities. Avalon does not have significant operations located outside the United States and, accordingly, geographical segment information is not presented.

 

For the six month period ended June 30, 2004, one customer and its affiliates accounted for approximately 13% of the waste services segment’s net operating revenues to external customers and approximately 11% of Avalon’s consolidated net operating revenues.

 

9


The accounting policies of the segments are consistent with those described for the consolidated financial statements in the summary of significant accounting policies. Avalon measures segment profit for internal reporting purposes as income (loss) from continuing operations before taxes. Business segment information including the reconciliation of segment income (loss) to consolidated income (loss) from continuing operations before taxes is as follows (in thousands):

 

     Three Months Ended
June 30,


    Six Months Ended
June 30,


 
     2004

    2003

    2004

    2003

 

Net operating revenues from:

                                

Waste management services:

                                

External customers revenues

   $ 5,957     $ 6,329     $ 11,672     $ 11,319  

Intersegment revenues

     31       20       72       70  
    


 


 


 


Total waste management services

     5,988       6,349       11,744       11,389  
    


 


 


 


Golf and related operations:

                                

External customers revenues

     1,304       884       1,829       997  

Intersegment revenues

     6       23       13       38  
    


 


 


 


Total golf and related operations

     1,310       907       1,842       1,035  
    


 


 


 


Segment operating revenues

     7,298       7,256       13,586       12,424  

Intersegment eliminations

     (37 )     (43 )     (85 )     (108 )
    


 


 


 


Total net operating revenues

   $ 7,261     $ 7,213     $ 13,501     $ 12,316  
    


 


 


 


Income (loss) from continuing operations before taxes:

                                

Waste management services

   $ 559     $ 294     $ 1,074     $ 654  

Golf and related operations

     67       164       (75 )     (117 )

Other businesses

     (1 )     (3 )     (2 )     (5 )
    


 


 


 


Segment income before taxes

     625       455       997       532  

Corporate interest income

     13       44       33       89  

Corporate other income, net

     1       9       14       22  

General corporate expenses

     (743 )     (894 )     (1,591 )     (1,788 )
    


 


 


 


Loss from continuing operations before taxes

   $ (104 )   $ (386 )   $ (547 )   $ (1,145 )
    


 


 


 


Interest income:

                                

Waste management services

   $ 23     $ 3     $ 39     $ 5  

Golf and related operations

     3       1       5       1  

Corporate

     13       44       33       89  
    


 


 


 


Total

   $ 39     $ 48     $ 77     $ 95  
    


 


 


 


 

     June 30,
2004


    December 31,
2003


 

Identifiable assets:

                

Waste management services

   $ 6,677     $ 5,821  

Golf and related operations

     19,080       14,825  

Other businesses

     731       557  

Corporate

     24,218       28,705  

Discontinued operations

     10,231       15,589  
    


 


Sub Total

     60,937       65,497  

Elimination of intersegment receivables

     (16,856 )     (16,443 )
    


 


Total

   $ 44,081     $ 49,054  
    


 


 

10


ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

 

The following discussion provides information which management believes is relevant to an assessment and understanding of the operations and financial condition of Avalon Holdings Corporation and its subsidiaries. As used in this report, the term “Avalon” means Avalon Holdings Corporation and its wholly owned subsidiaries, taken as a whole, unless the context indicates otherwise.

 

Statements included in Management’s Discussion and Analysis of Financial Condition and Results of Operations which are not historical in nature are intended to be, and are hereby identified as, ‘forward looking statements.’ Avalon cautions readers that forward looking statements, including, without limitation, those relating to Avalon’s future business prospects, revenues, working capital, liquidity, capital needs, interest costs, and income, are subject to certain risks and uncertainties that could cause actual results to differ materially from those indicated in the forward looking statements, due to risks and factors identified herein and from time to time in Avalon’s reports filed with the Securities and Exchange Commission.

 

Liquidity and Capital Resources

 

For the first six months of 2004, Avalon utilized existing cash and cash provided by the sale of investment securities to fund capital expenditures and meet operating needs.

 

Avalon’s aggregate capital expenditures in 2004 are expected to be in the range of $.2 million to $.3 million, which relate principally to the purchase of golf equipment. During the first six months of 2004, capital expenditures for Avalon totaled approximately $.1 million which was principally related to the development of software for the golf course operations and golf equipment.

 

Avalon entered into a long-term agreement with Squaw Creek Country Club to lease and operate its golf course and related facilities. The lease, which commenced November 1, 2003, has an initial term of ten (10) years with four (4) consecutive ten (10) year renewal term options unilaterally exercisable by Avalon. Under the lease, Avalon is obligated to pay $15,000 in annual rent and make leasehold improvements of $150,000 per year. Amounts expended by Avalon for leasehold improvements during a given year in excess of $150,000 will be carried forward and applied to future leasehold improvement obligations and classified as prepaid rent. The construction of certain leasehold improvements to the Squaw Creek facility are currently estimated to cost between $5 million and $5.5 million.

 

Working capital was $9.4 million at June 30, 2004 compared with $7.3 million at December 31, 2003. The increase is primarily the result of a reclassification of noncurrent investments to short-term investments as a result of a change in maturity dates of certain investments and the increase in cash and cash equivalents resulting from the sale of investment securities.

 

The increase in accounts receivable is primarily due to the increased net operating revenues of the waste management services in the second quarter of 2004 compared with the fourth quarter of 2003.

 

The increase in other noncurrent prepaid rent at June 30, 2004 compared with December 31, 2003 is a result of expenditures made by Avalon for leasehold improvements to the Squaw Creek facility in excess of $150,000 which will be carried forward and applied to future leasehold improvement obligations.

 

11


The decrease in accounts payable at June 30, 2004 compared with December 31, 2003 is primarily due to the payment of insurance premiums for Avalon’s insurance program.

 

From time to time, Avalon enters into contracts which require surety bonds or other financial instruments to assure performance under the terms thereof. Although Avalon has obtained such bonds or other financial instruments in the past, substantial changes in the bond market have significantly limited Avalon’s ability to obtain surety bonds. No assurance can be given that such bonds will be available in the future or, if available, that the premiums and/or any collateral requirements for such bonds will be reasonable. The inability of Avalon to obtain surety bonds may adversely impact its future financial performance and any significant collateral requirements may impact Avalon’s liquidity.

 

Management believes that anticipated cash provided from future operations and existing working capital, as well as Avalon’s ability to incur indebtedness, will be, for the foreseeable future, sufficient to meet operating requirements and fund capital expenditure programs. Avalon does not currently have a credit facility.

 

Several private country clubs in the Warren, Ohio vicinity are experiencing economic difficulties. Avalon believes some of these clubs may represent an attractive investment opportunity and is giving consideration to the possibility of acquiring one or more additional golf courses. While Avalon has not entered into any pending agreements for acquisitions, it may do so at any time and will continue to consider acquisitions that make economic sense. Such potential acquisitions could be financed by existing working capital, secured or unsecured debt, issuance of common stock, or issuance of a security with characteristics of both debt and equity, any of which could impact liquidity in the future.

 

Results of Operations

 

Overall performance

 

Net operating revenues in the second quarter of 2004 were $7.3 million compared with $7.2 million in the prior year’s second quarter. Costs of operations increased to $5.9 million in the second quarter of 2004 compared with $5.8 million in the prior year quarter. Selling, general and administrative expenses decreased to $1.5 million in the second quarter of 2004 compared with $1.8 million in the prior year quarter. Avalon incurred a loss from continuing operations of $.1 million or a loss of $.03 per share for the second quarter of 2004 compared with a loss from continuing operations of $.4 million or a loss of $.10 per share for the second quarter of 2003. For the first six months of 2004, net operating revenues increased to $13.5 million compared with $12.3 million for the first six months of 2003. Cost of operations were $11.1 million for the first six months of 2004 compared with $10.3 million for the first six months of the prior year. Selling, general and administrative expenses decreased to $3.1 million for the first six months of 2004 compared with $3.4 million for the first six months of 2003. Avalon incurred a loss from continuing operations of $.5 million or a loss of $.14 per share for the first six months of 2004 compared with a loss from continuing operations of $1.1 million or a loss of $.30 per share for the first six months of 2003.

 

12


Performance in the Second Quarter of 2004 compared with the Second Quarter of 2003

 

Segment performance

 

Segment performance should be read in conjunction with Note 9 to the Condensed Consolidated Financial Statements.

 

Net operating revenues of the waste management services segment decreased to $6 million in the second quarter of 2004 compared with $6.3 million in the second quarter of the prior year. The decrease in net operating revenues is primarily the result of a decrease in the level of services provided by the waste brokerage and management business and a slight decrease in the net operating revenues of the captive landfill management operation. Income before taxes for the waste management services segment was $.6 million in the second quarter of 2004 compared with $.3 million in the second quarter of 2003. The income before taxes in the second quarter of 2003 included a charge of $.3 million to the provision for losses on accounts receivable due to a customer filing bankruptcy.

 

Avalon’s golf and related operations segment consists primarily of two golf courses, a travel agency and a clubhouse that provides dining and banquet facilities. Although the golf courses will continue to be available to the general public, the primary source of revenue will arise from the members of the Avalon Golf and Country Club. With the addition of the Squaw Creek Country Club facilities in November 2003, the Avalon Golf and Country Club will be open year round instead of just during the golf season. Membership in the Avalon Golf and Country Club entitles members to use both the Avalon Lakes golf course facilities and the Squaw Creek Country Club facilities. As a result, net operating revenues associated with membership dues will be prorated monthly over the entire year beginning with the first quarter of 2004. Previously, net operating revenues associated with membership dues were recognized during the months of May through October, which generally represented the golf season.

 

Net operating revenues of the golf and related operations segment were $1.3 million in the second quarter of 2004 compared with $.9 million in the second quarter of 2003. The increase in net operating revenues is primarily attributed to a significant increase in the average number of members of the Avalon Golf and Country Club in the second quarter of 2004 compared with the prior year quarter, which in turn has significantly increased the number of rounds of golf played and food and beverage sales. The golf and related operations segment recorded income before taxes of $.1 million in the second quarter of 2004 compared with a income before taxes of $.2 million in the second quarter of 2003. The decrease in income before taxes is primarily due to incurring expenses at the Squaw Creek Country Club while the facilities were being renovated and constructed. The pro shop, bar and lounge areas at the Squaw Creek Country Club were not fully operational until June 2004.

 

Avalon had been evaluating the business and prospects of its transportation operations in light of its financial performance over the past few years. Such evaluation included an examination of each type of transportation service provided and measures needed to increase the profitability of these services, as well as the consideration of other strategic alternatives including, without limitation, the discontinuation of certain operations. In connection with the transportation of municipal solid waste, Avalon’s transportation operations provided loading services at several municipal solid waste transfer stations. The profitability of such operations was dependent upon the volume of waste delivered to each transfer station. The volume of waste delivered to each transfer station was not within Avalon’s control and had been less than anticipated. During the second quarter of 2004, Avalon ceased transportation operations at three Massachusetts’ municipal solid waste transfer stations. In conjunction with the cessation of these transfer station operations, Avalon closed its Oxford, Massachusetts terminal. Also, during the second quarter, Avalon sold approximately $.2 million of idle assets of the transportation operations and recognized a gain of approximately $.4 million.

 

13


In addition, on June 25, 2004, Avalon announced that it had reached an agreement in principle to sell all of the common stock of DartAmericA, Inc. (“DartAmericA”), Avalon’s transportation operations, to BMC International, Inc. (“BMC”). Based upon the proposed selling price and in accordance with Avalon’s asset impairment policy, Avalon recorded a write-down of costs in excess of fair market value of net assets of acquired businesses (“goodwill”) of approximately $.5 million and a write-down of the long-lived assets of approximately $2.3 million. The results of operations of the transportation operations for the current and prior years, including the write-down of goodwill and long-lived assets, have been included in discontinued operations.

 

On July 15, 2004, Avalon completed the sale of DartAmericA for a selling price of approximately $4.2 million. At the closing, BMC delivered to Avalon $3 million in cash and a secured promissory note of $1 million payable over 60 months. The balance of the selling price, $.2 million, was based upon changes in certain of DartAmericA’s balance sheet items from March 31, 2004 to June 30, 2004. Such balance is payable within two (2) business days of agreement upon the Consolidated Balance Sheet of DartAmericA as of June 30, 2004 and calculation of the final adjustment to the initial purchase price. Included with the purchase of DartAmericA, BMC also acquired DartAmericA’s wholly owned subsidiaries including Dart Trucking Company, Inc. (“Dart”) and Dart Services, Inc. and assumed Dart’s operating lease obligations of approximately $5 million. Prior to the completion of the sale, DartAmericA transferred to Avalon, Dart Realty, Inc., a wholly owned subsidiary of DartAmericA, which owned the Canfield, Ohio terminal, Avalon intends to sell this facility. As a result, this facility is classified as held-for-sale and the expenses related to the maintenance and operation of this facility are included in discontinued operations. In addition, DartAmericA transferred to Avalon all of the accounts receivable outstanding for more than 60 days as of June 30, 2004. Such receivables amounted to approximately $.5 million, net of the allowance for doubtful account.

 

Interest income

 

Interest income was $39,000 in the second quarter of 2004 compared with $48,000 in the second quarter of 2003.

 

General corporate expenses

 

General corporate expenses were $.7 million in the second quarter of 2004 compared with $.9 million in the second quarter of 2003. The decrease is primarily a result of decreased employee costs.

 

Net loss

 

Avalon recorded a net loss of $2.5 million in the second quarter of 2004 compared with a net loss of $.4 million in the second quarter of the prior year. Avalon’s overall effective tax rate, including the effect of state income tax provisions, was 0% in both the second quarter of 2004 and 2003. The deferred tax benefit arising from the loss before income taxes was offset by a valuation allowance. A valuation allowance is provided when it is more likely than not that deferred tax assets relating to certain federal and state loss carryforwards will not be realized. The overall effective tax rate differs from statutory rates primarily because of the increase in the valuation allowance.

 

14


Performance in the first six months of 2004 compared with the first six months of 2003

 

Segment performance

 

Segment performance should be read in conjunction with Note 9 to the Condensed Consolidated Financial Statements.

 

Net operating revenues of the waste management services segment increased to $11.7 million in the first six months of 2004 compared with $11.3 million in the first six months of the prior year. The increase in net operating revenues is primarily the result of an increase in the level of brokerage and management services provided. Income before taxes for the waste management services segment increased to $1.1 million in the first six months of 2004 compared with $.7 million in the first six months of the prior year primarily as a result of an increase in the level of business. In addition, the first six months of 2003 included a charge of $.3 million to the provision for losses on accounts receivable due to a customer filing bankruptcy.

 

Avalon’s golf and related operations segment consists primarily of two golf courses, a travel agency and a clubhouse that provides dining and banquet facilities. Although the golf courses will continue to be available to the general public, the primary source of revenue will arise from the members of the Avalon Golf and Country Club. With the addition of the Squaw Creek Country Club facilities in November 2003, the Avalon Golf and Country Club will be open year round instead of just during the golf season. Membership in the Avalon Golf and Country Club entitles members to use both the Avalon Lakes golf course facilities and the Squaw Creek Country Club facilities. As a result, net operating revenues associated with membership dues will be prorated monthly over the entire year beginning with the first quarter of 2004. Previously, net operating revenues associated with membership dues were recognized during the months of May through October, which generally represented the golf season.

 

Net operating revenues of the golf and related operations segment were $1.8 million for the first six months of 2004 compared with $1.0 million for the first six months of 2003. The golf courses, which are located in Warren, Ohio and Vienna, Ohio, were closed during the first three months of 2004 and 2003 due to seasonality. The golf and related operations segment incurred a loss before taxes of $75,000 in the first six months of 2004 compared with a loss before taxes of $117,000 in the first six months of 2003. The increase in net operating revenues and decreased loss before taxes is primarily attributed to a significant increase in the average number of members of the Avalon Golf and Country Club in the first six months of 2004 compared with the first six months of the prior year, which in turn has significantly increased the number of rounds of golf played and food and beverage sales.

 

Avalon had been evaluating the business and prospects of its transportation operations in light of its financial performance over the past few years. Such evaluation included an examination of each type of transportation service provided and measures needed to increase the profitability of these services, as well as the consideration of other strategic alternatives including, without limitation, the discontinuation of certain operations. In connection with the transportation of municipal solid waste, Avalon’s transportation operations provided loading services at several municipal solid waste transfer stations. The profitability of such operations was dependent upon the volume of waste delivered to each transfer station. The volume of waste delivered to each transfer station was not within Avalon’s control and had been less than anticipated. During the second quarter of 2004, Avalon ceased transportation operations at three Massachusetts’ municipal solid waste transfer stations. In conjunction with the cessation of these transfer station operations, Avalon closed its Oxford, Massachusetts terminal. Also, during the second quarter, Avalon sold approximately $.2 million of idle assets of the transportation operations and recognized a gain of approximately $.4 million.

 

15


In addition, on June 25, 2004, Avalon announced that it had reached an agreement in principle to sell all of the common stock of DartAmericA, Inc. (“DartAmericA”), Avalon’s transportation operations, to BMC International, Inc. (“BMC”). Based upon the proposed selling price and in accordance with Avalon’s asset impairment policy, Avalon recorded a write-down of costs in excess of fair market value of net assets of acquired businesses (“goodwill”) of approximately $.5 million and a write-down of the long-lived assets of approximately $2.3 million. The results of operations of the transportation operations for the current and prior years, including the write-down of goodwill and long-lived assets, have been included in discontinued operations.

 

On July 15, 2004, Avalon completed the sale of DartAmericA for a selling price of approximately $4.2 million. At the closing, BMC delivered to Avalon $3 million in cash and a secured promissory note of $1 million payable over 60 months. The balance of the selling price, $.2 million, was based upon changes in certain of DartAmericA’s balance sheet items from March 31, 2004 to June 30, 2004. Such balance is payable within two (2) business days of agreement upon the Consolidated Balance Sheet of DartAmericA as of June 2004 and calculation of the final adjustment to the initial purchase price. Included with the purchase of DartAmericA, BMC also acquired DartAmericA’s wholly owned subsidiaries including Dart Trucking Company, Inc. (“Dart”) and Dart Services, Inc. and assumed Dart’s operating lease obligations of approximately $5 million. Prior to the completion of the sale, DartAmericA transferred to Avalon, Dart Realty, Inc., a wholly owned subsidiary of DartAmericA, which owned the Canfield, Ohio terminal, Avalon intends to sell this facility. As a result, this facility is classified as held-for-sale and the expense related to the maintenance and operation of this facility are included in discontinued operations. In addition, DartAmericA transferred to Avalon all of the accounts receivable outstanding for more than 60 days as of June 30, 2004. Such receivables amounted to approximately $.5 million, net of the allowance for doubtful account.

 

Interest income

 

Interest income was $.1 million in both the first six months of 2004 and 2003.

 

General corporate expenses

 

General corporate expenses were $1.6 million in the first six months of 2004 compared with $1.8 million in the first six months of 2003. The decrease is primarily the result of decreased employee costs.

 

Net loss

 

Avalon recorded a net loss of $3.6 million in the first six months of 2004 compared with a net loss of $1.4 million in the first six months of the prior year. Avalon’s overall effective tax rate, including the effect of state income tax provisions, was 0% in both the first six months of 2004 and 2003. The deferred tax benefit arising from the loss before income taxes was offset by a valuation allowance. A valuation allowance is provided when it is more likely than not that deferred tax assets relating to certain federal and state loss carryforwards will not be realized. The overall effective tax rate differs from statutory rates primarily because of the increase in the valuation allowance.

 

Trends and Uncertainties

 

In the ordinary course of conducting its business, Avalon becomes involved in lawsuits, administrative proceedings and governmental investigations, including those relating to environmental matters. Some of these proceedings may result in fines, penalties or judgments being assessed against Avalon which, from

 

16


time to time, may have an impact on its business and financial condition. Although the outcome of such lawsuits or other proceedings cannot be predicted with certainty, management assesses the probability of loss and accrues a liability as appropriate. Avalon does not believe that any uninsured ultimate liabilities, fines or penalties resulting from such pending proceedings, individually or in the aggregate, will have a material adverse effect on it.

 

The federal government and numerous state and local governmental bodies are continuing to consider legislation or regulations to either restrict or impede the disposal and/or transportation of waste. A significant portion of Avalon’s waste management revenues are derived from the disposal or transportation of out-of-state waste. Any law or regulation restricting or impeding the transportation of waste or the acceptance of out-of-state waste for disposal could have a significant negative effect on Avalon.

 

Insurance costs have risen dramatically over the past year. The increase in insurance premiums has increased Avalon’s operating expenses, which, in light of competitive market conditions, Avalon has not been able to fully pass on to its customers.

 

From time to time, Avalon enters into contracts that require surety bonds or other financial instruments to assure performance under the terms thereof. Although Avalon has obtained such bonds or other financial instruments in the past, substantial changes in the bond market have significantly limited Avalon’s ability to obtain surety bonds. No assurance can be given that such bonds will be available in the future or, if available, that the premiums and/or any collateral requirements for such bonds will be reasonable. The inability of Avalon to obtain surety bonds may adversely impact its future financial performance.

 

Competitive and economic pressures continue to impact the financial performance of Avalon’s waste disposal brokerage and management services. Some of Avalon’s competitors periodically reduce their pricing to gain or retain business, especially during difficult economic times, which may limit Avalon’s ability to maintain rates. A decline in the rates which customers are willing to pay could adversely impact the future financial performance of Avalon.

 

Avalon’s waste disposal brokerage management operations obtain and retain customers by providing services and identifying cost-efficient disposal options unique to a customer’s needs. Consolidation within the solid waste industry has resulted in reducing the number of disposal options available to waste generators and has caused disposal pricing to increase. Avalon does not believe that industry pricing changes alone will have a material effect upon its waste disposal brokerage and management operations. However, consolidation has had the effect of reducing the number of competitors offering disposal alternatives which may adversely impact the future financial performance of Avalon’s waste disposal brokerage and management operations.

 

Avalon’s captive landfill management business is dependent upon a single customer as its sole source of revenue.

 

A significant portion of Avalon’s business is not subject to long-term contracts. In light of current economic, regulatory and competitive conditions, there can be no assurance that Avalon’s current customers will continue to transact business with Avalon at historical levels. Failure by Avalon to retain its current customers or to replace lost business could adversely impact the future financial performance of Avalon.

 

Current economic challenges throughout the industries served by Avalon have resulted in a reduction of revenues coupled with an increase in payment defaults by customers. While Avalon continuously endeavors to limit customer credit risks, customer specific financial downturns are not controllable by management. Significant customer payment defaults in the future will continue to have a material adverse impact upon Avalon’s future financial performance.

 

17


As a result of the acquisition of rights to the Squaw Creek Country Club facilities, the Avalon Lakes Golf Club has become the Avalon Golf and Country Club. In addition to a second championship golf course, the Squaw Creek facility includes a swimming pool, tennis courts and a clubhouse that provides dining and banquet facilities. The Avalon Golf and Country Club competes with many public courses and country clubs in the area. Although the golf courses will continue to be available to the general public, the primary source of revenues will be derived from the members of the Avalon Golf and Country Club. Avalon believes that the combination of the Squaw Creek and Avalon Lakes facilities will result in a significant increase in the number of members of the Avalon Golf and Country Club. Such increased membership, if attained, will result in increased net operating revenues; however, there can be no assurance as to when such increased membership will be attained. Failure by Avalon to attain increased membership could adversely affect the future financial performance of Avalon.

 

Avalon’s golf courses are located in Warren, Ohio and Vienna, Ohio and are significantly dependent upon weather conditions during the golf season. Additionally, all of Avalon’s other operations are somewhat seasonal in nature since a significant portion of those operations are primarily conducted in selected northeastern and midwestern states. As a result, Avalon’s financial performance is adversely affected by adverse weather conditions.

 

Avalon believes that the current depressed state of the golf market may result in attractive golf course properties becoming available under favorable terms. In addition to the Squaw Creek transaction previously described, it is possible that Avalon will further expand its involvement in the golf business in the future.

 

Management is currently evaluating Avalon’s strategic direction for the future. While there are no specific transactions under negotiation or pending at this time, Avalon does not necessarily intend to limit itself in the future to lines of business which it has historically conducted.

 

Market Risk

 

Avalon does not have significant exposure to changing interest rates. A 10% change in interest rates would have an immaterial effect on Avalon’s income before taxes for the next fiscal year. Avalon currently has no debt outstanding and invests primarily in U.S. Treasury notes, short-term money market funds and other short-term obligations. Avalon does not undertake any specific actions to cover its exposure to interest rate risk and Avalon is not a party to any interest rate risk management transactions.

 

Avalon does not purchase or hold any derivative financial instruments.

 

Item 4. Controls and Procedures

 

Avalon’s management, including the Chief Executive Officer and Chief Financial Officer, has conducted an evaluation of the effectiveness of disclosure controls and procedures pursuant to Exchange Act Rule 13a-14. Based on that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that the disclosure controls and procedures are effective in ensuring that all material information required to be filed in this quarterly report has been made known to them in a timely fashion. There have been no significant changes in internal controls, or in factors that could significantly affect internal controls, subsequent to the date the Chief Executive Officer and Chief Financial Officer completed their evaluation.

 

18


PART II. OTHER INFORMATION

 

Item 1. Legal Proceedings

 

Reference is made to “Item 3. Legal Proceedings” in Avalon’s Annual Report on Form 10-K for the year ended December 31, 2003 for a description of legal proceedings.

 

Item 2. Changes in Securities and Use of Proceeds

 

None

 

Item 3. Defaults upon Senior Securities

 

None

 

Item 4. Submission of Matters to a Vote of Security Holders

 

Avalon’s Annual Meeting of Shareholders was held on April 29, 2004; however, no vote of security holders occurred with respect to any matters reportable under this Item 4.

 

Item 5. Other Information

 

None

 

Item 6. Exhibits and Reports on Form 8-K

 

(a)

   Exhibits
     Exhibit 10.4 Stock Purchase Agreement dated as of June 30, 2004 between Avalon Holdings Corporation and BMC, International, Inc. for the purchase of DartAmericA, Inc.
     Exhibit 31.1 Certification pursuant to Section 302 of the Sarbanes-Oxley Act of 2003.
     Exhibit 31.2 Certification pursuant to Section 302 of the Sarbanes-Oxley Act of 2003.
     Exhibit 32.1 Certification pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2003.
     Exhibit 32.2 Certification pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2003.

(b)

   Reports on Form 8-K
     On June 25, 2004, Avalon announced an agreement to sell its transportation operations.
     On July 15, 2004, Avalon disclosed the completion of the sale of its transportation operations.

 

19


SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

 

   

AVALON HOLDINGS CORPORATION

   

(Registrant)

Date: August 13, 2004

 

By: /s/ Timothy C. Coxson


   

Timothy C. Coxson, Chief Financial Officer and

Treasurer (Principal Financial and Accounting Officer

and Duly Authorized Officer)

 

20

TABLE OF CONTENTS

 

1.

   Definitions    1

2.

   Purchase And Sale Of The Purchased Shares    2
     2.1      Purchase and Sale of the Purchased Shares    2
    

2.2      Sale on Closing Date

   2
    

2.3      Purchase Price

   2
    

2.4      Payment of Purchase Price

   3
    

2.5      Closing

   4

3.

   Representations And Warranties Of Seller    4
    

3.1      Authority

   4
    

3.2      Validity

   4
    

3.3      Ownership of Common Stock

   4
    

3.4      Due Organization; Qualification

   5
     3.5      Capitalization of the Corporation    5
     3.6      Subsidiaries of the Corporation    5
    

3.7      Interim Changes

   5
     3.8      Title to Assets    6
     3.9      Liabilities in the Ordinary Course of Business    6
     3.10    Taxes    6
     3.11    Litigation    6
     3.12    Compliance with Law    7
     3.13    Environmental Matters    7
     3.14    Employee Relations    8
     3.15    Conduct of Business    8
     3.16    Financial Statements    8
    

3.17    Disclosure

   9
     3.18    Ownership of Assets    9
     3.19    Contracts    9
     3.20    Transactions with Affiliates    10
     3.21    Insurance; Bonds    10
     3.22    Certain Payments    10
     3.23    Customer Relations    10
     3.24    Accounts Receivable    10
     3.25    Employees; Officers; Directors    11
     3.26    Bank Accounts; Powers of Attorney    11
     3.27    Actual Knowledge    11

4.

   Representations And Warranties Of Buyer    11
     4.1      Authority    11
     4.2      Validity    11

5.

   Covenants    12
     5.1      Continued Assistance    12
     5.2      Records and Documents    12
     5.3      Assignment of Accounts Receivable    12
     5.4      Non-competition    12
     5.5      Tax Matters    13

6.

   Conditions Precedent To Obligations Of The Buyer    14
     6.1      Seller’s Compliance with Agreement    14
     6.2      No Pending Action    14
     6.3      Other Documents    14

 

i


TABLE OF CONTENTS

Continued

 

     6.4      Financing    15
     6.5      Insurance    15

7.

   Conditions Precedent To Obligations Of Seller    15
     7.1      Buyer’s Compliance With Agreement    15
     7.2      No Pending Action    15
     7.3      Promissory Note; Other Documents    15

8.

   Indemnification    15
     8.1      Seller’s Indemnity    15
     8.2      Limitation of Obligations    16
     8.3      Notice; Defense    16
     8.4      Disclosure    17

9.

   Brokerage    17

10.

   Documents Delivered by Seller    17

11.

   Documents Delivered by Buyer    17

12.

   Notices    18

13.

   Modification    18

14.

   Nature and Survival of Representations    18

15.

   Parties    19

16.

   Access    19

17.

   Governing Law    19

18.

   Assignment    19

19.

   Counterparts    19

20.

   Publicity    19

21.

   Section Headings    20

22.

   Attorneys’ Fees    20

23.

   Further Assurances    20

Appendix I

    

Appendix II

    

Exhibit 2.4

    

Exhibit 2.4(a)

    

Exhibit 3.4

    

Exhibit 3.6

    

Exhibit 3.7

    

Exhibit 3.9

    

Exhibit 3.10

    

Exhibit 3.11

    

Exhibit 3.11(a)

    

Exhibit 3.13

    

Exhibit 3.19

    

Exhibit 3.21

    

Exhibit 3.25

    

Exhibit 3.26

    

Exhibit 5.3

    

 

ii


Exhibit 10.4

 

STOCK PURCHASE AGREEMENT

 

This Stock Purchase Agreement made as of the 30th day of June, 2004, by and between Avalon Holdings Corporation (“Seller”), and BMC International, Inc. an Ohio corporation (hereinafter referred as “Buyer”).

 

RECITALS:

 

A. DartAmerica, Inc. (the “Corporation”) is a corporate holding company consisting of a composite of several operating companies organized to provide transportation services in 48 states and provinces in Canada wherein the Corporation’s basic services include hazardous and industrial waste transportation, general freight and commodities transportation and transportation brokerage (the “Business”).

 

B. Seller is the legal, record and beneficial owner of all right, title and interest in and to all of the issued and outstanding Common Shares, no par value (the “Common Stock”), of the Corporation.

 

C. Buyer desires to purchase from the Seller, and the Seller desires to sell to Buyer, all of the shares of Common Stock of the Corporation, on the terms and conditions set forth herein (the “Purchased Shares”).

 

NOW, THEREFORE, in consideration of the promises and the mutual agreements herein set forth, the Seller and the Buyer hereby agree as follows:

 

1. Definitions In addition to terms defined elsewhere in this Agreement, the following terms as used herein shall, unless the context clearly otherwise requires, have the following meanings, which meanings shall be equally applicable to both the singular and plural forms of such terms:

 

(a) Affiliate shall mean any officer, director or shareholder of the Seller, the Corporation or any Subsidiary and any corporation or other Person more than fifty percent of which is owned by the Seller, the Corporation or any Subsidiary.

 

(b) Closing Date shall mean June 30, 2004, or such other date as mutually agreed upon by the parties.

 

(c) Financial Statements shall have the meaning set forth in Section 3.16 hereof.

 

(d) Licenses and Permits shall mean any and all government permits, franchises, authorizations and licenses which are held by the Corporation or any of the Subsidiaries listed in the attached Appendix I and which are necessary (by law or otherwise) for or utilized in connection with the conduct of the business of the Corporation or any of the Subsidiaries.


(e) Person shall mean an individual, a corporation, a partnership, an association, a trust, an unincorporated agency, a government or political subdivision thereof, or any other entity.

 

(f) Purchased Shares shall mean one hundred percent (100%) of the issued and outstanding shares of Common Stock of the Corporation.

 

(g) Subsidiary shall mean all companies of which on the Closing Date the Corporation owns a majority of the issued and outstanding capital stock, a detailed list of which is attached hereto as Appendix II.

 

(h) Trade Accounts Payable shall mean all sums owed by the Corporation or any Subsidiary for services rendered, products, inventory or equipment purchased or otherwise owed to unrelated, third party vendors as a result of the conduct of the Business. For purposes hereof, Trade Accounts Payable shall also include sums owed to Affiliates if such sums would otherwise be considered Trade Accounts Payable, but for the fact that the vendor is or was an Affiliate.

 

(i) Trade Accounts Receivable shall mean all sums owed to the Corporation or any Subsidiary for services rendered, products, inventory or equipment sold or otherwise owed by unrelated, third party customers as a result of the conduct of the Business. For purposes hereof, Trade Accounts Receivable shall also include sums owed by Affiliates if such sums would otherwise be considered Trade Accounts Receivable, but for the fact that the customer is or was an Affiliate.

 

2. Purchase and Sale of the Purchased Shares .

 

2.1. Purchase and Sale of the Purchased Shares . Subject to the terms and conditions set forth herein, on the Closing Date Seller shall sell, transfer, assign and deliver to the Buyer, and the Buyer shall purchase and acquire from the Seller, all of Seller’s right, title and interest, both legal and equitable, in and to the Purchased Shares, free and clear of any and all claims, liens, charges, security interests, pledges or encumbrances of any nature whatsoever.

 

2.2. Sale on Closing Date . The sale of the Purchased Shares shall be effected on the Closing Date by the delivery to the Buyer of stock certificates representing the Purchased Shares, together with duly executed stock powers sufficient to vest in the Buyer good and indefeasible title in the Purchased Shares. All proceedings to be taken and all documents to be executed on the Closing Date shall be deemed to have been taken, delivered and executed simultaneously, and no proceeding shall be deemed taken nor documents deemed executed or delivered until all have been taken, delivered and executed; provided, however, that the assignment of the Aged Receivables shall be deemed to occur prior to the Closing Date.

 

2.3. Purchase Price . In consideration of the sale, transfer, assignment and delivery to the Buyer of the Purchased Shares as provided in Section 2 hereof, Buyer hereby agrees to pay the aggregate sum of $4,400,000 as adjusted herein below (the “Initial Purchase Price”).

 

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The Initial Purchase Price to be paid by Buyer to Seller shall be adjusted as of the Closing Date to reflect changes from the Financial Statements of the Corporation and Subsidiaries on a consolidated basis (the “Consolidated Financial Statements”) as of March 31, 2004 as compared to the Consolidated Financial Statements as of June 30, 2004 as follows:

 

(a) Any change in fixed assets, net of depreciation, (excluding any change resulting from the distribution of Dart Realty, Inc. to Seller) with any decrease resulting in a reduction of the Initial Purchase Price and any increase resulting in an increase of the Initial Purchase Price;

 

(b) Any change in cash; with any decrease resulting in a reduction of the Initial Purchase Price and any increase resulting in an increase of the Initial Purchase Price;

 

(c) Any change in Trade Accounts Receivable of under sixty-one days as set forth in the most current aging reports; with any decrease resulting in a reduction of the Initial Purchase Price and any increase resulting in an increase of the Initial Purchase Price;

 

(d) Any change in Trade Accounts Payable, with any increase resulting in a reduction of the Initial Purchase Price and any decrease resulting in an increase of the Initial Purchase Price.

 

For purposes of the Initial Purchase Price adjustments described in this Section 2.3, only changes to the following intercompany accounts payable and accounts receivable shall be relevant: (i) the intercompany payable identified as Intercompany Payable/AP Account Number 2100 for Dart Trucking Company, Inc. and Dart Services, Inc. (but not DartAmericA, Inc. or TRB National Systems, Inc.), reflecting a balance of $259,792.57 on the Consolidated Financial Statements as of March 31, 2004; (ii) the intercompany payable identified as Intercompany Payable/AWMS Account Number 2125 reflecting a balance of $107,673.43 on the Consolidated Financial Statements as of March 31, 2004; and (iii) the intercompany receivable identified as Intercompany Receivable/AR Account Number 1200 reflecting a balance of $322,826.69 on the Consolidated Financial Statements as of March 31, 2004. All other intercompany payables and intercompany receivables indicated on the Consolidated Financial Statements as of March 31, 2004 shall be void and unenforceable as of the Closing Date.

 

The Initial Purchase Price as adjusted herein above is hereinafter the “Purchase Price”.

 

2.4. Payment of Purchase Price . At the Closing, Buyer shall deliver to Seller cash in the amount of $3,000,000 and the Buyer’s Secured Promissory Note in substantially the form attached hereto as Exhibit 2.4 (the “Buyer’s Promissory Note”). The Buyer’s Promissory Note shall be issued to the Seller in the face amount of $1,000,000. The Buyer’s Promissory Note shall be secured pursuant to the terms and conditions of the Security Agreement (the “Security Agreement”) attached hereto as Exhibit 2.4.(a). The balance of the Purchase Price shall be paid to Seller by certified or bank cashier’s check or wire transfer within two (2) business days of preparation and agreement upon the Consolidated Financial Statements as of June 30, 2004 and calculation of the final adjustment to the Initial Purchase Price; provided,

 

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however, that if the adjustments to the Initial Purchase Price result in the Purchase Price amounting to less than $4,000,000, then the Seller shall refund to the Buyer, in the form of a prepayment credited against the outstanding principal balance of Buyer’s Promissory Note, within the aforementioned two (2) business days period, the amount of refund to which the Buyer is entitled as a result of the adjustment to the Initial Purchase Price. Buyer and Seller agree to use their respective best efforts to prepare and agree upon the Consolidated Financial Statements as of June 30, 2004 within sixty (60) days of the Closing Date.

 

2.5. Closing . The closing of the transactions contemplated hereunder shall take place at the offices of Seller on the Closing Date or at such other place as may be mutually agreed upon in writing by the Seller and the Buyer.

 

3. Representations And Warranties Of Seller. Seller hereby makes the following representations and warranties to the Buyer as of the date hereof and, subject to Seller’s supplementation, as of the Closing Date:

 

3.1. Authority . Seller has full legal right, power and authority, without the consent of any other Person, to execute and deliver this Agreement and the other documents to be delivered at the Closing, and to carry out the transactions contemplated hereby. All actions required to be taken by Seller to authorize the execution, delivery and performance of this Agreement and the other documents to be delivered at the Closing, and all transactions contemplated hereby have been duly and properly taken. The execution of this Agreement and the performance of the covenants herein contained will not result in the creation of any lien, charge or encumbrance upon any of the assets or properties of the Corporation pursuant to any indenture, agreement or other instrument to which the Corporation or the Seller is a party or by which the Corporation or the Seller is bound.

 

3.2. Validity . This Agreement and the documents to be delivered by Seller at the Closing have been or will be duly executed and delivered and are the lawful, valid and legally binding obligations of the Seller, enforceable against Seller in accordance with their respective terms. The execution, delivery and performance of this Agreement by the Seller and the consummation of the transactions contemplated hereby, will not violate any provision of law, ordinance or regulation or order, judgment or decree of any court or any governmental authority, or conflict with, result in a breach of or constitute a default under the Certificate or Articles of Incorporation or Code of Regulations of the Corporation or any indenture, mortgage, lease, agreement, contract or instrument to which Seller or the Corporation is a party or by which Seller or the Corporation is bound.

 

3.3. Ownership of Common Stock . Upon delivery of the certificates representing the shares of Common Stock to the Buyer, the Buyer will have full, valid and marketable title to the Purchased Shares and after the consummation of the transactions contemplated by this Agreement, the Buyer shall be the owner of 100 percent of the fully paid and nonassessable issued and outstanding capital stock of the Corporation free and clear of any and all liens and encumbrances whatsoever.

 

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3.4. Due Organization; Qualification. Except as provided in Exhibit 3.4, the Corporation and each Subsidiary are corporations duly organized, validly existing and in good standing under the laws of the State of Ohio. Except as provided in Exhibit 3.4, the Corporation and each Subsidiary have full power and authority and all Licenses and Permits to own, operate, or lease their properties and to carry on the Business as presently conducted. The Corporation and each Subsidiary are duly licensed and qualified to do business as foreign corporations and are in good standing in all jurisdictions where, by the nature of their business or the character and location of their property or personnel, failure to be so licensed or qualified would have a material adverse effect upon the Business or the assets of the Corporation and each Subsidiary or where failure to qualify would affect the ability of Buyer to enforce any material rights of the Corporation and each Subsidiary. Appendix I lists all jurisdictions where the Corporation or each Subsidiary is licensed to do business.

 

3.5. Capitalization of the Corporation . All of the issued and outstanding shares of Common Stock of the Corporation are duly and validly issued to the Seller, and are fully paid and nonassessable. As of the date hereof, no class of equity securities of the Corporation presently exists other than the Common Stock. As of the Closing Date, the Corporation shall have no commitment or obligation to issue or sell any shares of its Common Stock or any other securities or obligations convertible into or exchangeable for, or giving any Seller or any other Person any right to subscribe for or acquire from the Corporation, any shares of Common Stock or any other security of the Corporation, and no securities or obligations evidencing any such rights are outstanding.

 

3.6. Subsidiaries of the Corporation . As of the date hereof, the number of outstanding shares of capital stock of each Subsidiary is set forth on Appendix II. Except as set forth on Schedule 3.6, all of the issued and outstanding shares of common stock of each Subsidiary are duly and validly issued to the Corporation, and are fully paid and nonassessable. All issued and outstanding shares of capital stock of each Subsidiary owned by the Corporation are owned free and clear of any and all claims, liens, charges, security interests, pledges or encumbrances of any nature whatsoever except those in favor of a Subsidiary and there are no voting trusts or voting agreements. None of the Subsidiaries has any commitment to issue or sell any shares of its capital stock or any securities or obligations convertible into or exchangeable for, or giving any Person any right to subscribe for or acquire from such Subsidiary, any shares of capital stock of such Subsidiary, and no securities or obligations evidencing any such rights are outstanding.

 

3.7. Interim Changes . Except as provided in Exhibit 3.7, since March 31, 2004, there has not been (i) any material adverse change in the financial condition, assets, liabilities, properties, results of operations or business of the Corporation or any of the Subsidiaries or in its relationships with suppliers, customers, vendors or others; (ii) any known major change in the transportation business that may tend to make the Corporation’s or any of its Subsidiaries’ future operations noncompetitive or tend to diminish the value of the Corporation or any of its Subsidiaries; (iii) any event or condition of any character materially and adversely affecting the Corporation or any of its Subsidiaries or the financial condition, assets or properties of the Corporation or any of its Subsidiaries; (iv) any strike, labor union organizing attempt or other labor trouble at the Corporation or any of its Subsidiaries; (v) any capital asset acquisition or

 

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disposition; (vi) any termination or amendment of or waiver of any right under any contract that would have a material adverse effect upon the Business or the assets of the Corporation and each Subsidiary; or (vii) any agreement or commitment to do any of the foregoing.

 

3.8. Title to Assets . The Corporation and each Subsidiary are the sole and exclusive legal and equitable owners of all right and title in and have good, marketable and indefeasible title to all of their respective properties and assets, free and clear of any mortgage, pledge, charge, lien, claim, right, security interest, encumbrance, covenant, easement or restriction of any kind or nature, direct or indirect, whether accrued, absolute, contingent or otherwise (collectively, “Encumbrances”), except for only those Encumbrances as reflected on the Financial Statements furnished to Buyer or the notes thereto. All leases pursuant to which the Corporation or any of the Subsidiaries lease real property or personal property are valid and binding in accordance with their respective terms and are in full force and effect.

 

3.9. Liabilities in the Ordinary Course of Business . Except to the extent reflected on the Financial Statements or Exhibit 3.9, neither the Corporation nor any Subsidiary has any claims, liabilities, obligations or indebtedness of any nature, whether accrued, contingent, absolute or otherwise and whether due or to become due which would have a material adverse effect upon the Business. Except as disclosed on Exhibit 3.9, neither the Corporation nor any Subsidiary is liable as a guarantor, surety or endorser with respect to the obligations or liabilities of any unrelated Person. Except as disclosed on Exhibit 3.9, no Person has the power to confess judgment against the Corporation, any Subsidiary or the properties and assets of the Corporation or any Subsidiary.

 

3.10. Taxes . All Federal, state, local, franchise and other tax returns, declarations, information returns and reports of every nature required to be filed by or on behalf of the Corporation and each of the Subsidiaries including but not limited to payroll tax deposits, have been filed on a timely basis and such returns are complete and correct. Except as disclosed on Exhibit 3.10, no extensions of time in which to file any such returns and reports are in effect; all taxes shown on such returns and all asserted deficiency assessments, penalties and interest have been paid. The federal income tax returns of the Corporation and the Subsidiaries have been examined by the Internal Revenue service through December 31, 1995, and no other tax examinations are in progress. Except as disclosed on Exhibit 3.10, to the extent that tax liabilities have accrued for any period ending on or before March 31, 2004, they are adequately reflected as liabilities on the books of the Corporation and the Subsidiaries. Except as disclosed on Exhibit 3.10, the reserves for taxes as of March 31, 2004, are sufficient for the payment of all unpaid federal, state and other taxes of the Corporation and the Subsidiaries. There are no outstanding agreements or waivers extending the statute of limitations with respect to the assessment of any federal income tax or other tax and there exists no basis for the making of any claims for taxes. No claim has been made by any taxing authority of a jurisdiction in which the Corporation or any Subsidiary does not file tax returns that the Corporation or a Subsidiary is or may be subject to taxation in that jurisdiction.

 

3.11. Litigation . Except as set forth in Exhibit 3.11 hereto, neither the Corporation, any Subsidiary nor Seller is engaged in or a party to or threatened with any suit, claim, action, proceeding, investigation or legal, administrative, arbitration or other method of

 

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settling disputes or disagreements or governmental investigation involving or affecting any of the Common Stock or any share of stock of any Subsidiary, any assets of the Corporation or any Subsidiary or otherwise involving or relating to the Corporation or any Subsidiary before or by any federal, state, municipal or other governmental department, commission, board, agency or instrumentality and there is no basis for any of the foregoing that would have a material adverse effect upon the Business. Except as set forth in Exhibit 3.11, neither the Corporation nor any Subsidiary is in default with respect to any order of any federal, state, municipal or local department, commission, board, agency or instrumentality. Except as set forth in Exhibit 3.11, neither the Corporation, any Subsidiary nor Seller has received notice of any investigation, threatened or contemplated, by any federal or state agency, which remains unresolved, involving the Corporation’s or any Subsidiary’s employment practices or policies. There is no outstanding judgment, decree or order of any governmental agency against or affecting the Corporation or any Subsidiary or any of the assets of such entities that has had or standing alone will have a material adverse effect upon the Business.

 

3.12. Compliance with Law . The Corporation and each Subsidiary are in compliance with all applicable laws, ordinances, codes, Licenses and Permits, rules and regulations where the failure to comply would have a material adverse effect on the Corporation or any Subsidiary; and Seller is unaware that there is or will be any material adverse liability arising from or relating to any violations thereof. Appendix I lists all licenses held by the Corporation or any of its Subsidiaries for the operation of the Business in all states where the Corporation or any of its Subsidiaries are licensed to do business and doing Business.

 

3.13. Environmental Matters . The ownership, use and operation of each Facility (as defined by Environmental Laws) owned or leased by the Corporation and each Subsidiary is and has been in substantial compliance with applicable federal, state and local environmental laws, rules and regulations including but not limited to RCRA, CERCLA, Clean Water Act and Clear Air Act (collectively all such laws, rules and regulations are referred to as the “Environmental Laws”). Seller is unaware that any action, lawsuit or complaint has been filed, threatened or asserted against the Seller, the Corporation or any Subsidiary and that there has been threatened under any Environmental Law any complaint, claim, action or lawsuit against the Corporation or any Subsidiary for fines, penalties, investigations, expenses or remedial or removal actions. Seller is unaware that there is now occurring or that there has occurred at any Facility owned, operated or leased by the Corporation or any Subsidiary any release or threatened release of a Hazardous Waste, Hazardous Material or a constituent of a Hazardous Waste or Hazardous Material from any Facility owned, operated or leased by the Corporation or any Subsidiary which Seller believes will form the basis for any claim for liability under any Environmental Law. Seller is unaware of any claim made upon the Corporation or any Subsidiary, or threatened to be made from a federal, state or local government for liability thereunder based upon the Corporation’s or any Subsidiary’s transport of waste material to any site currently listed on the National Priorities List or state equivalent. Seller is unaware that any asbestos that requires removal or containment under Environmental Law has been located or disposed of at any Facility owned, operated or leased by the Corporation or any Subsidiary. Seller is unaware that PCB’S are currently located at any Facility owned, operated or leased by the Corporation or any Subsidiary. Neither the Corporation nor any Subsidiary has been served with any demand, notice, or communication asserting violations of any Environmental Law which remain uncured. All of the foregoing are subject to the exceptions set forth in Exhibit 3.13.

 

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3.14 Employee Relations . Neither the Corporation nor any Subsidiary is a party to any union, collective bargaining or similar agreement. There is not pending or threatened any labor dispute, strike or work stoppage which affects or which may affect the business of the Corporation or any Subsidiary or which may interfere with the continued operation of the Corporation or any Subsidiary. Neither the Corporation nor any Subsidiary has committed any unfair labor practice defined in the National Labor Relations Act of 1947, as amended, and there is not now pending or threatened any charge or complaint against the Corporation or any Subsidiary by the National Labor Relations Board or any representative thereof. Since 1990, there have been no strikes, walkouts or work stoppages affecting the Corporation or any Subsidiary.

 

3.15 Conduct of Business . At all times after the date of this Agreement and until the Closing, the Corporation and each Subsidiary shall conduct their business in their usual and ordinary manner and shall endeavor in good faith to preserve customers, keep available services of their employees and agents, maintain their assets in good condition and repair and make sales and conduct business in the usual and ordinary course of such business. During this period, the Corporation and each Subsidiary shall not, without Buyer’s written consent, which consent shall not be unreasonably withheld or delayed:

 

(a) sell or otherwise transfer any assets, purchase or otherwise acquire any real or personal property, or enter into any other agreement or transaction, except in the usual and ordinary course of business;

 

(b) enter into any transaction or agreement with any Affiliate of the Corporation or Seller except in the usual and ordinary course of business;

 

(c) pay any dividends or make any other distributions to Seller;

 

(d) grant any bonus or increased compensation to any employee of the Corporation or any Subsidiary;

 

(e) make any capital expenditure in excess of $5,000;

 

(f) make any commitments to their customers or other parties for free or discounted service, loans, gratuities, credits or allowances unless such commitments are made in the ordinary course of business;

 

(g) mortgage, pledge or otherwise encumber any of their assets; or

 

(h) incur any indebtedness for borrowed money.

 

3.16 Financial Statements . Seller has delivered to Buyer copies of the Corporation’s consolidated financial statements for the years ending December 31, 2001, 2002

 

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and 2003 and for the three months period ended March 31, 2004 (collectively the “Financial Statements”) and the accompanying supplemental financial statements which also include various schedules for such periods (the “Schedules”). The Financial Statements and the Schedules are collectively referred to hereinafter as the “Financial Statements”. All of the foregoing Financial Statements are in accordance with the books and records of the Corporation. The Financial Statements fairly present the financial condition, the results of operations and the changes in financial position of the Corporation at the dates and for the periods covered thereby in accordance with generally accepted accounting principles consistently applied. The Schedules fairly state the information contained therein in all material respects. The Financial Statements make full and adequate provision for all obligations, liabilities or commitments (fixed and contingent) of the Corporation as of their respective dates required to be disclosed or reserved against in the Financial Statements or disclosed in the notes thereto in accordance with generally accepted accounting principles.

 

3.17. Disclosure . The representations and warranties of the Seller contained in this Agreement and each Appendix, Exhibit or certificate (and other written statements delivered pursuant to this Agreement or in connection with the transactions contemplated therein) are accurate, correct and complete, do not contain any untrue statement of a material fact or, considered in the context in which presented, omit to state a material fact necessary in order to make the statements and information contained herein or therein not misleading. The Seller is not aware of any information necessary to enable a prospective purchaser to make an informed investment decision to purchase the Corporation which has not been expressly disclosed in writing. There is no fact which materially adversely affects or in the future may (so far as the Seller can now reasonably foresee) materially adversely affect the business, operations, properties, prospects or condition, financial or otherwise, of the Corporation or any of the Subsidiaries or the ability of the Seller to fully perform this Agreement and the transactions contemplated hereby, which has not been set forth or described in this Agreement or in an Appendix, Exhibit, certificate or other written statement furnished to Buyer. There is no fact, other than general economic conditions, which adversely affects or might reasonably be expected to adversely affect in the future the Corporation and the Subsidiaries or the properties, the Business profits or financial condition of the Corporation and the Subsidiaries in any material respect which has not been set forth or referred to in this Agreement (including the Appendices and Exhibits hereto or certificates or other written statements delivered pursuant to this Agreement).

 

3.18. Ownership of Assets . The Corporation and the Subsidiaries own or lease all assets that are currently used in the operation of the Business.

 

3.19. Contracts . Exhibit 3.19 contains a list of contracts material to the Business and operations of the Corporation and its Subsidiaries. True and complete copies of all such contracts have been delivered to Buyer. No authorization is needed in order for such contracts to continue in full force and effect under the same terms and conditions currently in effect following consummation of the transactions. The Corporation and each Subsidiary have performed all obligations required to be performed by them under each such contract and are not alleged to be in breach or default in any respect under any such contract. Each contract is a legal, valid and binding obligation of the Corporation or Subsidiary and is in full force and

 

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effect. All UCC filings relating to the Corporation and its Subsidiaries and the contracts to which they relate are also set forth on Exhibit 3.19. The Corporation has disposed of approximately 40,000 tons of material at the Minerva Enterprises facility pursuant to the letter agreement identified on Exhibit 3.19.

 

3.20. Transactions with Affiliates . No Affiliate uses any of the assets of the Corporation or any of its Subsidiaries except directly in connection with the Business. With the exception of the real property located in Canfield, Ohio and the improvements thereon, as well as the Microsoft Business Solutions – Great Plains accounting software and the Best Software, Inc. – fixed asset software, no Affiliate owns any asset used in the Business. No Affiliate has any claim of any nature, including any inchoate claim, against any of the assets of the business.

 

3.21. Insurance;Bonds . Exhibit 3.21 contains a list of all current insurance policies with respect to which the Corporation or a Subsidiary is the owner, insured or beneficiary, including all self-insurance arrangements, as well as all outstanding bonds to which the Corporation or a Subsidiary is a party, in each case identifying whether Seller or an Affiliate is an indemnitor on such bonds. The Corporation and the Subsidiaries have complied with all of the terms and conditions of the insurance policies and have given notice to the insurer of all known claims that may be covered thereby. All such policies are valid and enforceable and are with financially sound and reputable insurers. No notice of cancellation has been received with respect to any insurance policy. The Corporation and each Subsidiary have paid all Workers’ Compensation premiums.

 

3.22 Certain Payments . During the past five (5) years, neither the Corporation, a Subsidiary, nor any director, officer, agent or employee of any such party or any other person associated with or acting for or on behalf of any such party has directly or indirectly: (i) made any contribution, gift, bribe, rebate, payoff, influence payment, kickback or other payment to any person, private or public, regardless of form, whether in money, property or services: (a) to obtain favorable treatment in securing business; (b) to pay for favorable treatment for business secured; (c) to obtain special concessions or for special concessions already obtained, for or in respect of the Corporation, a Subsidiary, or Seller or any Affiliate of them, or (d) in violation of any applicable legal requirements or (ii) established or maintained any fund or asset that has not been recorded in the books and records of the Corporation or Subsidiary.

 

3.23 Customer Relations . No current customer has, during the past year, informed the Corporation or any Subsidiary that it may cease doing business or that it may reduce the volume of business that it does if the Corporation or any Subsidiary is acquired by Buyer or any of Buyer’s affiliates.

 

3.24 Accounts Receivable . All Trade Accounts Receivable of the Corporation and each Subsidiary, other than Aged Receivables, represent valid obligations arising from sales actually made or services actually performed by the Corporation or any Subsidiary in the ordinary course of business. There is no contest or claim, nor is anyone currently exercising a right of set off under any contract with any obligor of an account receivable relating to the amount or validity of such account receivable, which individually or taken as a whole would have a material adverse effect upon the Business or the assets of the Corporation and each Subsidiary.

 

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3.25 Employees;Officers;Directors . Exhibit 3.25 contains a complete and accurate list of the following information as of June 15, 2004 for each employee of the Corporation or any Subsidiary, including each employee on leave of absence or lay-off status: name, job title, compensation and current annual vacation accrual. Exhibit 3.25 also contains the names of the officers and directors of the Corporation and each Subsidiary.

 

3.26 Bank Accounts;Powers of Attorney . Exhibit 3.26 contains a true, correct and complete list of (a) each bank, including its address, in which the Corporation or any Subsidiary has an account or safe deposit box, the number of any such account or any such box and the names of all persons authorized to draw thereon or to have access thereto; and (b) the names of all persons, if any, holding powers of attorney from the Corporation or any Subsidiary and a summary statement of the terms thereof.

 

3.27 Actual Knowledge . The representations and warranties made by Seller in Sections 3.4 (except for the first sentence thereof), 3.7, 3.9, 3.10, 3.11, 3.12, 3.13, 3.17, 3.19, 3.21, 3.23, and 3.24 are limited to the best of Seller’s Actual Knowledge. For purposes of this Agreement, Seller’s Actual Knowledge shall be defined as the actual knowledge of Ronald E. Klingle, Timothy C. Coxson, Jeffrey M. Grinstein and Lisa R. Wallace without any obligation to make inquiry or investigation; provided, however, that the foregoing individuals have no reason to believe the any other officer or director of either the Corporation or any Subsidiary has knowledge that would affect the representations and warranties identified in this Section 3.27.

 

4. Representations And Warranties Of Buyer . Buyer hereby represents and warrants to the Seller as of the date hereof as follows:

 

4.1. Authority . Buyer has full legal right, power and authority, without the consent of any other Person, to execute and deliver this Agreement and to carry out the transactions contemplated hereby. All actions required to be taken by Buyer to authorize the execution, delivery and performance of this Agreement and all transactions contemplated hereby have been duly and properly taken.

 

4.2. Validity . This Agreement and the documents to be delivered by Buyer at the Closing have been or will be duly executed and delivered by Buyer and are the lawful, valid and legally binding obligations of Buyer, enforceable in accordance with their respective terms. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not result in the creation of any material adverse lien, charge or encumbrance or the acceleration of any indebtedness or other obligation of Buyer and are not prohibited by, do not violate or conflict with any provision of, and do not result in any material adverse default under or a breach of (i) any contract, agreement or other instrument to which Buyer is a party, (ii) any regulation, order, decree or judgment of any court or governmental agency, or (iii) any law applicable to Buyer.

 

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5. Covenants . Each of the parties hereto hereby agree to keep, perform and, if appropriate, shall further cause the Corporation and the Corporation shall cause each Subsidiary to keep, perform and fully discharge the following covenants and agreements imposed upon each such party.

 

5.1. Continued Assistance . Following the closing, the Seller shall refer to Buyer, as promptly as practicable, any telephone calls, letters, orders, notices, requests, inquiries and other communications relating to the Business. From time to time following the Closing, at Buyer’s request and without any further consideration, the Seller shall execute, acknowledge and deliver such additional documents, instruments of conveyance, transfer and assignment or assurances and take such other action as Buyer may reasonably request to more effectively assign, convey and transfer to Buyer the Purchased Shares. Additionally, for a reasonable time following the Closing, Seller agrees to offer reasonable assistance and cooperation to Buyer in any matter related to the Business. Buyer and Seller agree to cooperate to the fullest extent necessary to prepare the Consolidated Financial Statements as of June 30, 2004 and 2004 tax returns. From the Closing Date through December 31, 2004, Seller will utilize commercially reasonable efforts to allow the Corporation and Subsidiaries to continue the use of the Microsoft Business Solutions - Great Plains accounting software. Seller shall prepare and cause to be filed at Seller’s expense all necessary 2003 tax returns and tax filings for the Corporation and the Subsidiaries not later than August 31, 2004.

 

5.2. Records and Documents . For seven (7) years following the Closing Date, each of the parties shall grant, or, if applicable, cause a Person under its control (a “Controlled Person”) to grant, to the other and their respective representatives, at each party’s request, access to and the right to make copies of those records and documents related to the Common Stock, the Corporation, the Subsidiaries or the Business, possession of which is retained by the other party or a Controlled Person, as may be necessary or useful for whatever reason after the Closing Date. If during such period any party, the Corporation or any Subsidiary (the “Disposing Party”) elects to dispose of such records the appropriate party hereto shall give or cause the Disposing Party to first give the other party sixty (60) days’ prior written notice thereof, during which period the other party shall have the right to take possession of such records. If any such party sells its interest in a Controlled Person, it shall impose this covenant upon the purchaser for the other party.

 

5.3. Assignment of Accounts Receivable . On June 30, 2004, the Corporation and each Subsidiary shall assign to Seller, free and clear of all liens and encumbrances, all of their respective rights, title and interest in and to all Accounts Receivable outstanding for over sixty days (the “Aged Receivables”) with the exception of the Accounts Receivable from Environmental Waste Technologies/Minerva Enterprises, Inc. Such assignment shall be effectuated in accordance with an Assignment Agreement in the form attached hereto as Exhibit 5.3 (the “Assignment Agreement”). Seller and Buyer shall cause the Corporation and each Subsidiary to fulfill its respective obligations under the Assignment Agreement.

 

5.4 Non-competition . Neither Seller nor any of its Affiliates shall, for a period of three (3) years after the Closing, Compete directly or indirectly with Buyer in any geographic

 

12


location where the Corporation or any of its Subsidiaries do Business. For purposes of this Agreement, Compete shall be defined as applying for or receiving any operating authority from the Interstate Commerce Commission or the United States Department of Transportation and operating in the transportation services business either by owning trucks or through a fleet of owner-operators signed on to Seller or an Affiliate. Neither Seller nor any of Seller’s Affiliates shall employ or offer employment to any employee listed on Exhibit 3.25 for a period of twelve (12) months from the Closing Date without Buyer’s prior written consent; provided that such employee is continuing to be compensated at a level at least equal to such employee’s compensation as of the Closing Date. For purposes of this Section 5.4, Buyer’s consent shall not be unreasonably withheld or delayed except with respect to the following employees in which case such consent may be withheld in the sole, unfettered discretion of Buyer: (i) Robert Houston, (ii) George Rimar; (iii) Lisa Bruce; (iv) Mike Williams; (v) Tracey McFarland; and (vi) Mary Delgado. The parties acknowledge that the Buyer and the Corporation and Subsidiaries would be irreparably injured by the breach of any of the covenants contained in this Section 5.4, and money damages alone would not be an appropriate measure of the harm to come from such continuing breach. Therefore, equitable relief, including specific performance of such provisions by injunction, would be an appropriate remedy for the breach of such provisions. Seller hereby agrees and consents, without limitation or election of remedies, and in addition to all other remedies at law and equity to which Buyer may be entitled, and without the posting of bond or other security, to the entry of a temporary restraining order without notice or hearing, to a preliminary injunction and permanent injunction, enjoining such violation.

 

5.5 Tax Matters .

 

(a) Section 338(h)(10) Tax Election . Seller agrees to cooperate with Buyer in all reasonable respects to enable the parties to elect to treat the sale of stock herein for federal income tax purposes as a purchase by Buyer of the Corporation’s and the Subsidiaries’ assets, and to allow the parties to make an election after Closing pursuant to Internal Revenue Code Section 338(h)(10) and any corresponding elections under state, local or foreign tax law accordingly (herein the “Tax Election”). Provided, however, that if in the sole determination by tax counsel for the Seller, the Tax Election will result in a negative tax impact to the Seller, then the Buyer shall be required either (1) to elect not to make the Tax Election; or (2) to pay over, indemnify, defend, and hold harmless the Seller from and against the monetary value of the negative tax impact of the Tax Election, the monetary value of such negative tax impact being determined by tax counsel for Seller in its sole discretion. The determination by tax counsel for the Seller as to whether the Tax Election will result in a negative tax impact and the amount thereof shall be made within Two Hundred Ten (210) days after Closing. In no event shall the Seller be required to make the Tax Election other than according to the requirements of this Paragraph. In the event that the parties make the Tax Election, then the Seller shall pay any tax (whether federal, state, local or foreign) on gains from this transaction and the Seller shall indemnify the Buyer from and against any claims arising from such tax on this transaction (except for any increase in tax as a result of the Tax Election being made, for which Buyer shall indemnify Seller as provided above). Furthermore, in the event that the Buyer files for said Tax Election, and if for any reason the Buyer ultimately receives no financial benefit as a result of such election, the Buyer shall have no claim of

 

13


any kind against the Seller in connection therewith, it being agreed by the parties that although the Seller has agreed to cooperate with the Buyer, the Seller shall have no liability resulting therefrom.

 

(b) Returns for Periods through Closing . The Seller shall include the income of the Corporation, including any deferred income triggered into income by Regulation §1.1502-13 and Regulation §1.1502-14 and any excess loss accounts taken into income under Regulation §1.1502-19, on the Seller’s consolidated federal income tax returns for all periods up to the date of Closing, and the Seller shall pay any federal income taxes attributable to such income. The Corporation and the Buyer shall furnish tax information to the Seller for inclusion in Seller’s federal consolidated income tax return for such period. The Seller will allow the Buyer a reasonable opportunity to review and comment upon such tax returns, including any amended returns, to the extent that they relate to the Corporation. The income of the Corporation will be apportioned to the period up to and including the date of Closing by closing the books as of the end of business on the date of Closing.

 

(c) Allocation of Purchase Price . In the event that the parties make the Tax Election, the parties agree that the Purchase Price and the liabilities of the Corporation and Subsidiaries, plus other relevant items, will be allocated to the assets of the Corporation and Subsidiaries for all purposes, including tax and financial accounting purposes, in a manner consistent with the fair market values set forth in the allocation schedule reasonably agreed upon by the parties. Buyer, Seller, the Corporation and Subsidiaries shall file all tax returns, including amended returns, claims for refund, and information reports, in a manner consistent with such values. If the Tax Election is made, Buyer will prepare and file (after providing Seller with not less than thirty (30) days to review and sign) all election forms relating to such Tax Election within the statutorily required time frames.

 

6. Conditions Precedent To Obligations Of The Buyer . Each and all of the obligations of the Buyer hereunder are subject to the conditions that, unless waived by Buyer, on or prior to the Closing Date:

 

6.1. Seller’s Compliance with Agreement . The Seller shall have performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement to be performed or complied with by Seller prior to or upon the Closing Date.

 

6.2. No Pending Action . As of the Closing, no action or proceeding shall be instituted or threatened at any time prior to or as of the Closing Date before any court or other governmental body by any Person or public authority seeking to restrain or prohibit, or seeking damages or other relief in connection with, the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.

 

6.3. Other Documents . The Seller shall have executed and delivered to Buyer such documents as counsel for Buyer shall reasonably request to carry out the purpose of this Agreement.

 

14


6.4 Financing . Buyer shall complete the financing arrangements by and between Buyer and its bank in order to enable Buyer to fund the purchase price and working capital requirements. Buyer shall use its best efforts to obtain such financing arrangements as expeditiously as possible.

 

6.5. Insurance . On the Closing Date, the Buyer shall have the ability to provide uninterrupted health insurance coverage for the employees listed on Exhibit 3.25 and shall have in place such other insurance coverage as is necessary for it to legally operate the Business.

 

Notwithstanding anything contained in this Agreement to the contrary, in the event the transactions contemplated by this Agreement are not consummated on or before July 31, 2004, because of the failure of the conditions set forth in Section 6.4 and 6.5 above, Seller shall have the right to terminate this Agreement at any time thereafter (but prior to the Closing) and shall thereafter have no further obligations or liability to Buyer.

 

7. Conditions Precedent To Obligations Of Seller . Each and all of the obligations of the Seller hereunder are subject to the conditions that, unless waived in writing, on or prior to the Closing Date:

 

7.1. Buyer’s Compliance With Agreement . The Buyer shall have performed and complied in all material respects with each and all of the agreements, covenants and conditions required by this Agreement to be performed or complied with by Buyer on or prior to the Closing Date.

 

7.2. No Pending Action . As of the Closing, no action or proceeding shall be instituted or threatened at any time prior to or as of the Closing Date before any court or other governmental body by any person or public authority seeking to restrain or prohibit, or seeking damages or other relief in connection with, the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.

 

7.3. Promissory Note; Other Documents The Buyer, the Corporation and each Subsidiary (as the case may be) shall have delivered to Seller the duly executed Promissory Note, Security Agreement, Assignment Agreement and such other documents and instruments as Seller shall reasonably request to carry out the purpose of this Agreement.

 

8. Indemnification .

 

8.1. Seller’s Indemnity . The Seller shall indemnify, defend (subject to the provisions of Section 8.3) and hold the Buyer harmless from and against and in respect of any and all liabilities, losses, damages (including but not limited to court costs, reasonable attorneys’ fees, interest expense and amounts paid in settlement or compromise), claims, costs and expenses to the extent arising out of or due to a breach of any representation, warranty or covenant of the Seller contained in this Agreement, all of which shall survive Closing, or any and all actions, suits, proceedings, demands, assessments or judgments, costs and expenses incidental to any of the foregoing.

 

15


8.2. Limitation of Obligations . Seller shall have no obligation under this Section 8, (i) unless notice of a claim for indemnity in respect of any matter has been given to Seller on or before the date which is two (2) years after the Closing Date and (ii) until the aggregate of all claims for which Seller is responsible under this Section 8 exceeds $100,000 (the “Basket Limitation”); provided, however, that if Seller is responsible for indemnification to Buyer hereunder in no event shall such liability exceed $500,000 in the aggregate unless such indemnification is a result of actual fraud resulting from willful or intentional misrepresentation. The parties acknowledge that if the Basket Limitation is exceeded, Seller shall only be liable for the claims in excess of the Basket Limitation up to the maximum amount for which Seller is required to indemnify Buyer hereunder.

 

8.3. Notice; Defense .

 

(a) Within a reasonable period after the receipt by Buyer of (i) any claim or (ii) the commencement of any action or proceeding, Buyer will give Seller written notice of such claim or the commencement of such action or proceeding and shall permit the Seller to assume the defense of any such claim or any litigation resulting from such claim utilizing counsel acceptable to the Buyer.

 

(b) If the Seller assumes the defense of any such claim or litigation resulting therefrom, the obligations of Seller as to such claim shall be limited to taking all steps necessary in the defense or settlement of such claim or litigation resulting therefrom and to holding the Buyer harmless from and against all losses, damages, and liabilities caused by or arising out of any settlement or any judgment in connection with such claim or litigation resulting therefrom. The Buyer shall cooperate, and assist, with the Seller, at the Buyer’s sole cost and expense, in defending any such claim. The Buyer may participate, at its expense, in the defense of such claim or litigation provided that the Seller shall direct and control the defense of such claim or litigation. The Buyer shall cooperate and make available all books and records reasonably necessary and useful in connection with the defense. The Seller shall not, in the defense of such claim or any litigation resulting therefrom, consent to entry of any judgment or enter into any settlement, except with the written consent of the Buyer, which consent shall not be unreasonably withheld or delayed.

 

(c) If the Seller shall not assume the defense of any such claim or litigation resulting therefrom, the Buyer may defend against such claim or litigation in such manner as it may deem appropriate and the Buyer may settle such claim or litigation on such terms as it may deem appropriate, and subject to the qualifications and limitations of Section 8.2 (collectively the “8.2 Provisions”) the Seller shall promptly reimburse the Buyer for the amount of all expenses, legal or otherwise, incurred by the Buyer in connection with the defense against or settlement of such claims or litigation. If no settlement of such claim or litigation is made, the Seller shall, subject to the 8.2 Provisions, promptly reimburse the Buyer for all expenses, legal or otherwise, incurred by the Buyer in the defense against such claim or litigation, as such expenses are incurred and for the amount of any judgment rendered with respect to such claim or in such litigation.

 

16


8.4. Disclosure . If at or prior to the Closing Date any party hereto knows of any information with respect to the other party indicating that a breach of this Agreement, or any other agreement, certificate or other written statement contemplated hereby, has occurred, or that any representation or warranty contained in this Agreement, or in any Appendix, Exhibit, certificate or other written statement or agreement delivered pursuant to this Agreement, or in connection with the transactions contemplated hereby, is inaccurate, incorrect or incomplete, or fails to state a material fact necessary in order to make the statements and information contained herein or therein misleading, such party shall promptly notify in writing all other parties to this Agreement; and if such party fails to give notice when such party knew of such breach or inaccuracy, then such party shall have no recourse to and shall waive all rights under the remedies provided for such breach or inaccuracy under this Agreement or under law.

 

9. Brokerage . Each of the parties represents and warrants to the other that they have not engaged any Person which are owed or may be owed a brokerage commission, finder’s fee, counseling or advisory fee, or like payment in connection with the transactions contemplated by this Agreement and will pay the same, the 8.2 Provisions to the contrary notwithstanding.

 

10. Documents Delivered by Seller . At the Closing Seller shall deliver to Buyer each and all of the following:

 

  a. Powers of Attorney for transfer of stock certificates;

 

  b. Corporate Minute Books and Stock Record Books for the Corporation and each Subsidiary;

 

  c. Subject to the exceptions set forth on Appendix II, Certificates of Good Standing for the Corporation and each Subsidiary from the State of incorporation and evidence of good standing from each State and Canadian Province where the Corporation or Subsidiary is licensed to do business;

 

  d. Incumbency and Specimen Signature Certificates;

 

  e. Copies of the Articles of Incorporation and By-Laws certified by the Secretary of the Corporation and each Subsidiary;

 

  f. A copy certified by the Secretary of the Seller of the duly adopted resolutions of the Seller’s Board of Directors approving this Agreement and authorizing the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby;

 

  g. General releases by each officer and director of the Corporation and each Subsidiary of any claim that they have or may have against the Corporation or Subsidiary in such capacity arising prior to the Closing; and

 

  h. Any necessary resignations of officers and directors of the Corporation and each Subsidiary.

 

11. Documents Delivered by Buyer . At the Closing Buyer shall deliver to Seller each and all of the following:

 

  a. A copy certified by the Secretary of the Buyer of the duly adopted resolutions of the Buyer’s Board of Directors approving this Agreement and authorizing the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby;

 

17


  b. $3,000,000 cash;

 

  c. The Buyer’s Promissory Note in the face amount of $1,000,000;

 

  d. The Security Agreement; and

 

  e. The Assignment Agreement.

 

12. Notices . All approvals, consents, notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given upon delivery, if delivered in person, or on the third business day after mailing, if mailed, by registered or certified mail, postage prepaid, return receipt requested:

 

To the Seller:

 

Avalon Holdings Corporation

One American Way

Warren, Ohio 44484-5555

Attn: Ronald E. Klingle, Chairman

 

With a copy to:

 

Avalon Holdings Corporation

One American Way

Warren, Ohio 44484-5555

Attn: General Counsel

 

To the Buyer:

 

BMC International, Inc.

Attention: Jerry L. Stoneburner, Chairman

41738 Easterly Drive

Columbiana, Ohio 44408

 

With a copy to:

 

Roth, Blair, Roberts, Strasfeld & Lodge, L.P.A.

600 City Centre One

Youngstown, Ohio 44503

Attn: Daniel B. Roth, Esquire

 

or to such other address or to such other person as the Seller or the Buyer shall have last designated by notice to the other parties.

 

13. Modification . This Agreement shall not be modified or amended except by an instrument in writing signed by or on behalf of the parties hereto.

 

14. Nature and Survival of Representations . All statements contained in any certificate or other instrument delivered by or on behalf of the Buyer or the Seller pursuant to this Agreement

 

18


or in connection with the transactions contemplated hereby shall be deemed representations and warranties by the Buyer and the Seller hereunder. All representations and warranties and agreements made by the parties hereto in this Agreement or pursuant hereto shall survive in accordance with the following:

 

(a) Sections 3.1, Authority; the first sentence of 3.2, Validity; 3.3, Ownership of Common Stock; 3.4, Due Organization; Qualification; 3.5, Capitalization of the Corporation and 3.6, Subsidiaries of the Corporation shall survive indefinitely.

 

(b) All other representations and warranties shall survive for two (2) years.

 

15. Parties . Nothing contained in this Agreement is intended or shall be construed to give any Person or corporation, other than the parties hereto and their respective successors and permitted assigns, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained, this Agreement being intended to be and being for the sole and exclusive benefit of the parties hereto and their respective successors and assigns and for the benefit of no other Person or corporation. This Agreement shall be binding upon and inure to the benefit of the undersigned and their respective heirs, personal representatives, successors and permitted assigns.

 

16. Access . At all times prior to the Closing, but after disclosure of the Agreement to the public, the Corporation, the Subsidiaries and the Seller shall give to Buyer and to Buyer’s employees and representatives (including accountants, actuaries, attorneys, environmental consultants and engineers) access during normal business hours to all of the properties, books, tax returns, contracts, commitments, records, officers and employees of the Corporation and the Subsidiaries. The Corporation and the Subsidiaries and the Seller shall furnish to the Buyer all such documents and copies of documents and all information with respect to the properties, liabilities and affairs of the Corporation and the Subsidiaries as the Buyer may reasonably request.

 

17. Governing Law . This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Ohio, without giving effect to the principles of conflicts of law thereof.

 

18. Assignment. This Agreement may not be assigned by the Buyer except to another entity owned or controlled by Jerry L. Stoneburner and/or Lee Stoneburner. This Agreement other than the right to receive money shall not be assignable by the Seller.

 

19. Counterparts . This Agreement may be executed simultaneously in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

 

20. Publicity . Prior to the Closing Date, neither party shall release any publicity regarding any of the transactions contemplated by this Agreement without the prior written consent of the other party, except as otherwise required by law or regulation, which consent shall not be unreasonably withheld or delayed.

 

19


21. Section Headings . The section headings in this Agreement are for convenience of reference only and shall not be deemed to alter or affect any provision thereof. Reference to numbered “Sections” and “Exhibits” refer to sections of this Agreement and Exhibits annexed hereto.

 

22. Attorneys’ Fees . If any legal action or other proceeding is brought for the enforcement of this Agreement or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorneys’ fees and other costs incurred in this action, in addition to any other relief to which it may be entitled.

 

23. Further Assurances . The Seller and the Buyer hereby agree to take any and all actions and to execute and deliver at any time and from time to time prior to or after the Closing Date such other documents and instruments as may reasonably be required to effectuate the transactions contemplated hereby.

 

IN WITNESS WHEREOF, the Seller and the Buyer have caused this Agreement to be executed as of the day and year first written above.

 

SELLER:
AVALON HOLDINGS CORPORATION
By:  

/s/ Ronald E. Klingle


Its:   CEO
BUYER:
BMC INTERNATIONAL, INC.
By:  

/s/ Jerry L. Stoneburner


Its:   Chairman

 

20


Pg. 1

 

Appendix I

 

DartAmericA, Inc. & Subsidiaries

Authority to Transact Business

 

Dart Trucking Company, Inc.

 

California

Idaho

Illinois

Indiana

Iowa

Kentucky

Maine

Maryland

Massachusetts

Minnesota

New Hampshire

New Jersey

New York

North Carolina

Ohio

Pennsylvania

Rhode Island

South Carolina

Texas

Vermont

West Virginia

Wisconsin

Alberta, Canada

 

Dart Services, Inc.

 

Massachusetts

Ohio

Pennsylvania

 

TRB National Systems, Inc.

 

Ohio


Pg. 2

 

Appendix I

 

DartAmericA, Inc. & Subsidiaries

Sales Tax Permits and Business Licenses

 

    

Dart Trucking


   Dart Services

State


  

Description


   Account No.

   Description

   Account No.

California

   Sales Tax    30-699564          

Connecticut

   Sales Tax    9678038-000          

Delaware

   Business License    1995113835          

District of Columbia

   Sales Tax    350000050749          

Idaho

   Sales Tax    000221855-s          

Illinois

   Sales Tax    1808-7728          

Indiana

   Sales Tax    001735446          

Iowa

   Sales Tax    2-00-129614          

Kentucky

   Sales Tax    114891          

Maine

   Sales Tax    1044476          

Maryland

   Sales Tax    03454453          

Massachusetts

   Sales Tax    340963564          

Michigan

   Sales Tax    34-0963564          

Minnesota

   Sales Tax    1275481          

New Jersey

   Sales Tax    340963564          

New York

   Sales Tax    340963564    Sales Tax    341503652

Ohio

   Sales Tax    90003580    Sales Tax    90003579

Pennsylvania

   Sales Tax    97-560228          

Rhode Island

   Sales Tax    340963564          

Vermont

   Sales Tax    450-340963564-F-1          

Virginia

   Sales Tax    001047117-6          

West Virginia

   Sales Tax    340963564          

Wisconsin

   Sales Tax    004000063920101          


Pg. 3

 

Appendix I

DartAmericA, Inc. & Subsidiaries

Operating Authorities and Licenses

 

Interstate Commerce Commission Authorities

 

Dart Trucking Company, Inc. - Canfield, OH -

   MC # 121420    Sub 25 (A)    Common Carrier    Active

(Common Carrier Authority)

        Sub 27    Contract Carrier    Active

Dart Trucking Company, Inc. - Canfield, OH

   MC # 121420    Sub 25 (B)         Inactive

(Broker Authority)

                   

Dart Trucking Company, Inc. - Canfield, OH

   MC # 121420    (p)-Permit    License pending    Active

(Household Goods Authority)

                   

Dart Services, Inc. - Canfield, OH

   MC # 203240              Active

(Broker Authority)

                   

Dart Services, Inc. - Canfield, OH

   MC # 203240    (b)    Licensed    Active

(Broker Authority for Household Goods)

                   

Seaway Transportation, Inc. - Canfield, OH

   MC # 121298               

(Common and Contract Authority)

             Common/Contract    Inactive

TRB National Systems - Canfield, OH

   MC # 193791         Common/Contract    Active

 

Interstate Commerce Commission - Lease and Interchange of Vehicle Authority

 

Ex Parte NO - MC43

 

Dart Trucking Company, Inc., (MC-121420) TRB National Systems, Inc., (MC - 193791), Seaway Transportation (MC # 121298), Dart Transportation Management, Inc. (MC # - 177055), and Dart Services, Inc., (MC # 203240)


* Note - Dart Transportation Management, Inc. no longer exists.

 

United States Department of Transportation - US DOT Numbers

 

Dart Trucking Company, Inc.

   USDOT #    124009   Active

Seaway Transportation, Inc.

   USDOT #    324791   Inactive

 

United States Department of Transportation

 

Dart Trucking Company, Inc.

   Reg. # 030303 006 011L    Expires 06/30/04

Hazardous Materials Certificate of Registration

         

 

State of Ohio - EPA ID #

 

Dart Trucking Company, Inc.

   EPA ID # OHD009865825     

 

Canadian Province Authorities

 

Dart Trucking Company, Inc.

 

Alberta

           Provincial ID   C2114

Ontario

           Provincial ID   A820726

Quebec

  Intra        Provincial ID   M308372

Quebec

           Provincial ID   10-0831-2792-000


Pg. 4

 

Appendix I

DartAmericA, Inc. & Subsidiaries

State Fuel Permits and Transporter ID#’s

 

Dart Trucking Company, Inc.

 

State


  

Permit #


   Expiration Date

   Transporter ID

Ohio International Fuel Tax Agreement

   12/31/2004    OH 34096356401
States Included - AL, AR, CA, CO, CT, GA, IA, ID, IL, IN, KS, KY, LA, MO, MA, ME, MI, MN, MS, MT, NC, ND, NE, NH, NM, NY, OH, OK, RI, SC, SD, TN, TX, UT, VA, WA, WI, WV

California

   Intra 30-663125    N/A     

California

   Interstate D1 HQ 57-802150    N/A     

Indiana

   Intrastate for Haz Hauling    12/31/2004     
     US DOT # 124009          

New Mexico

   477281    12/31/2004     

New York

   Case T-10333    N/A     

Washington

   CC-57372    N/A     

Wyoming

   M-115029    N/A     

Texas

   005790686C    05/31/2004     


Pg. 5

 

Appendix I

DartAmericA, Inc. & Subsidiaries

Transportation Permits

 

Dart Trucking Company, Inc.

 

STATE


  

PERMIT NO.


  

EXPIRATION DATE


   DATE ISSUED

ALABAMA

   OHD009865825    04/11/2007    04/11/2004

ALASKA

   N/A    N/A     

ALLEGHENY CTY,PA

   N/A    04/30/2005    04/29/2004

ARIZONA

   6036    03/01/2005    03/01/2004

ARKANSAS

   H-205    02/21/2005    02/21/2004

CALIFORNIA

   1944    04/30/2005    04/26/2004

CALIFORNIA-HWY PATROL

   90463    07/31/2004    06/12/2003

COLORADO

   HMP 00888    10/18/2004    09/17/2003

CONNECTICUT

   CT-HW-281    06/30/2005    05/23/2001

DELAWARE

   DE-HW-169    09/30/2006    07/15/1999

DELAWARE

   DE-SW-0169    09/30/2006    07/15/1999

FLORIDA

   REGISTERED    09/01/2004    09/12/2003

FLORIDA LOW LWVEL RAD

   N/A    12/31/2004    11/23/2003

FLA/DADE COUNTY

   N/A LIQUID    03/31/2005    03/26/2004

FLA/BROWARD COUNTY

   WT-04-0006    04/30/2006    01/22/2004

GEORGIA

   REGISTERED    08/12/2004    08/14/2003

IDAHO

   50519-8    12/31/2004     

ILLINOIS

   UPW-0124009-OH    10/01/2004    07/31/2003

INDIANA

   N/A    N/A     

INDIANA-INTRASTATE

   N/A    N/A     

IOWA

   N/A    N/A     

KANSAS

   OHD009865825    12/31/2004    11/24/2003

KENTUCKY

   OHD009865825    NONE    08/15/1996

LOUISIANA

   9724H    NONE     

MAINE

   321    06/21/2005    04/08/2004

MAINE/NON HAZ

   N/A    N/A     

MARYLAND

   HWH382    05/31/2005    06/01/2004

MASSACHUSETTS

   297    12/31/2004    04/20/2001

MICHIGAN

   UPW-0124009-OH    10/01/2004    07/31/2003

MINNESOTA

   UPW-0124009-OH    10/01/2004    07/31/2003

MISSISSIPPI

   N/A    N/A     

MISSOURI

   H1459    12/14/2004    10/20/2003

MONTANA

   N/A    N/A     

NEBRASKA

   N/A    N/A     

NEVADA

   UPW-0124009-OH    10/01/2004    07/31/2003

NEW HAMPSHIRE

   TNH-0121    06/30/2005    04/26/2004


Pg. 6

 

Appendix I

 

STATE


  

PERMIT NO.


  

EXPIRATION DATE


  

DATE ISSUED


NEW JERSEY

   DEP S8796 HAZARDOUS    06/30/2005    07/01/2003

NEW JERSEY

   DEP 16853 SOLID    06/30/2005    07/01/2003

NEW MEXICO

   477281    09/16/2004    09/17/2003

NEW YORK

   OH-047    12/31/2004    01/01/2004

NEW YORK HUT/TMT

   CAB CARD    N/A     

NORTH CAROLINA

   N/A    N/A     

NORTH DAKOTA

   WH-353- SOLID WASTE    09/18/2008    09/18/1998

OHIO/HAZ

   UPW-0124009-OH    10/01/2004    07/31/2003

OHIO (INFECTIOUS WASTE)

   50-T-00143    05/14/2005    05/15/2004

OHIO - IFTA/FUEL

   N/A    12/31/2004     

OHIO PUCO

   RS3    12/31/2004    10/14/2003

OHIO PUCO

   INTRASTATE    07/14/2005     

OHIO SCRAP TIRE

   N/A    04/30/2005    04/12/2004

OH-MAHONING COUNTY

   55 SOLID WASTE          

OKLAHOMA

   UPW-0124009-OH    10/01/2004    07/31/2003

OREGON

   940H1044    N/A     

PENNSYLVANIA/HAZ

   AH-0219    02/28/2005    07/23/2001

PA-ACT 90/SOLID WASTE

   N/A          

RHODE ISLAND

   536    06/30/2005    06/09/2004

SOUTH CAROLINA

   OHD009865825    02/04/2007    02/04/2004

SOUTH DAKOTA

   N/A    N/A     

TENNESSEE

   OHD009865825    03/01/2005    02/06/2004

TEXAS

   40613    NONE    09/28/1984

TEXAS-USED OIL FILTER

   TNRCC#A85549    12/31/2005    01/05/2004

UTAH

   N/A    N/A     

VERMONT

   OHD009865825    06/30/2005    06/27/2004

VIRGINIA

   OHD0098658251    12/8/12    12/02/2002

WASHINGTON

   N/A    N/A     

WASHINGTON/INTRA STATE

   CC-57372          

WASHINGTON D.C.

   N/A    N/A     

WEST VIRGINA

   UPW-0124009-OH    10/01/2004    07/31/2003

WISCONSIN

   11400    09/30/2004    10/01/2003

WYOMING

   N/A    N/A     

ONTARIO

   A820726    NONE     

QUEBEC/INTRA

   M308372    03/16/2005    02/08/2003

QUEBEC

   10-0831-2792-000    N/A     

ALBERTA

   C2114    N/A     


Appendix II

Subsidiaries

 

DARTAMERICA, INC. SUBSIDIARY LIST

 

COMPANY


 

PARENT


   NUMBER OF
SHARES


   CERTIFICATE
NUMBER


   PERCENT
OWNERSHIP


Dart Trucking Company, Inc.

  DartAmericA, Inc.    100    1    100%

Seaway Transportation, Inc.

  DartAmericA, Inc.    5    1    100%

TRB National Systems, Inc.

  DartAmericA, Inc.    5    2    100%

Dartway, Inc.

  DartAmericA, Inc.    100    N/A    100%

Dart Associates, Inc.

  DartAmericA, Inc.    9    N/A    90%

Dart Services, Inc.

  Dart Trucking Company, Inc.    20    1    100%


Exhibit 2.4

Buyer’s Promissory Note

 

  To be furnished

 

  Cognovit Term Note

 

  Term: 60 months – payable in interest only installments for 6 months, then, regular monthly installments of principal and interest.

 

  Interest rate: 6.875% fixed

 

  Cross-default provision in the event of default under bank financing.

 

  All other terms shall be consistent with the bank’s promissory note(s).

 

  Loan documents to be satisfactory in form and content to the bank, Seller and Buyer.


Exhibit 2.4(a)

Security Agreement

 

  To be furnished

 

  Personal guarantees of Jerry L. Stoneburner, Lee W. Stoneburner and James A. Nulf, Jr.

 

  Guarantees of the Corporation and Subsidiaries as necessary or appropriate.

 

  Second lien position on collateral on the same terms as bank financing subject to subordination of lien position to the bank.

 

  Loan documents to be satisfactory in form and content to the bank, Seller and Buyer.


Exhibit 3.4

 

Dartway, Inc. Corporate Number C1403366 was originally incorporated on March 31, 1987 in the State of California as Soda Transportation Systems, Inc. On March 3, 1988 Soda Transportation Systems, Inc. amended its Articles of Incorporation to change its name to Dartway, Inc. Dartway, Inc.’s current status with the California Secretary of State’s office is “suspended”.


Exhibit 3.6

 

On January 16, 1990, American Waste Services, Inc. (Avalon Holdings Corporation’s former parent company) purchased all of the issued and outstanding shares of DartAmericA, Inc. Closing documents indicate that Dart Associates, Inc. (f/k/a Kogar, Inc.) had 10 shares of stock authorized and issued. DartAmericA, Inc. owned 9 of those shares and Thomas Moran owned 1 share.

 

The last entry in the Dart Associates, Inc. Corporate Book was on April 3, 1989. Dart Associates, Inc. has not appointed any directors or officers since DartAmericA, Inc. was purchased by American Waste Services, Inc., nor has it transacted any business of any kind. Mr. Moran has never contacted anyone at DartAmericA, Inc. or any of its Subsidiaries regarding his 10% ownership of Dart Associates, Inc.

 

Dart Associates, Inc., charter number 711386, is still an active corporation in good standing in the State of Ohio.

 

Subject to the provisions of Section 8 of the Agreement, Seller shall indemnify Buyer for any liabilities arising from claims by Thomas Moran, his heirs, executors, administrators and assigns relating to his ownership of Dart Associates, Inc.


Pg. 1

 

Exhibit 3.7

Dart Trucking Company, Inc.

Fixed Asset Disposal Report

 

Asset No.


   Description

   Class

   In-Service
Date


   Disposal
Date


   Acquired
Value


   Current
Accumulated
Depreciation


   Net
Proceeds


000970 000 970

   Awsome C    AW    06/01/96    04/30/04    29784.00    0.00    12987.00
                        
  
  

Class: AW

             Count=    1    29784.00    0.00    12987.00
                        
  
  

000132 000 132

   MOBILE T    LH    01/01/90    04/01/04    5375.30    5375.30    0.00

000162 000 162

   ADDITION    LH    01/01/90    04/01/04    7481.55    7481.55    0.00

000164 000 164

   AIR COND    LH    01/01/90    04/01/04    1065.99    1065.99    0.00

000197 000 197

   DARTAMER    LH    01/01/90    04/01/04    385.87    385.87    0.00

000523 000 523

   OUTSIDE    LH    12/13/91    04/01/04    4523.48    4523.48    0.00

000537 000 537

   PARKING    LH    05/22/92    04/01/04    25625.00    25625.00    0.00

000538 000 538

   WOOD FEN    LH    06/08/92    04/01/04    6996.85    6996.85    0.00

000543 000 543

   BUILDING    LH    04/30/92    04/01/04    9245.24    9245.24    0.00

000837 000 837

   AIR COND    LH    08/21/96    04/01/04    4200.00    3185.00    1015.00

000838 000 838

   PARKING    LH    08/29/96    04/01/04    2900.00    2900.00    0.00

000935 000 935

   ELECTRIC    LH    07/25/95    04/01/04    2902.67    2515.68    0.00

001288 000 1288

   Truck Bl    LH    01/01/98    04/01/04    6030.00    3768.75    2261.25

001356 000 1356

   Spray Po    LH    09/22/98    04/01/04    18085.00    9946.76    8138.23

001450 000 1450

   CANFIELD    LH    03/01/99    04/01/04    22947.14    11664.77    11282.36

001488 000

   Install    LH    04/13/99    04/01/04    5549.31    711.45    4837.86

001692 000

   PAVING    LH    11/18/99    04/01/04    2250.00    1950.00    300.00

002497 000 2497

   Luxaire    LH    06/29/02    04/01/04    1750.00    153.12    1596.87
                        
  
  

Class: LH

             Count=    17    127313.40    97494.81    29431.57
                        
  
  

000799 000 E310004

   ROLLOFF    RB    06/06/96    04/07/04    5090.40    5090.40    1175.00

000800 000 E310001

   ROLLOFF    RB    06/06/96    04/07/04    5090.40    5090.40    1175.00

000801 000 E310002

   ROLLOFF    RB    06/06/96    04/07/04    5090.40    5090.40    1175.00

000802 000 E310005

   ROLLOFF    RB    06/06/96    04/07/04    5090.40    5090.40    1175.00

000804 000 E110011

   ROLLOFF    RB    06/06/96    04/07/04    4288.51    4288.51    1175.00

000805 000 E110010

   ROLLOFF    RB    06/06/96    04/07/04    4288.51    4288.51    1175.00

000806 000 E110009

   ROLLOFF    RB    06/06/96    04/07/04    4288.51    4288.51    1175.00

000810 000 E110007

   ROLLOFF    RB    06/06/96    04/07/04    4288.51    4288.51    1175.00

000811 000 E110012

   ROLLOFF    RB    06/06/96    04/07/04    4288.51    4288.51    1175.00

000812 000 E110018

   ROLLOFF    RB    06/06/96    04/07/04    4288.51    4288.51    1175.00

000815 000 E110022

   ROLLOFF    RB    06/06/96    04/07/04    4288.51    4288.51    1175.00

001182 000 E303010

   30 YD 22    RB    08/09/97    04/15/04    3175.00    3175.00    1500.00

001185 000 E303013

   30 YD 22    RB    08/23/97    04/15/04    3175.00    3175.00    1500.00

001198 000 E303021

   30 YD 22    RB    09/05/97    04/15/04    3175.00    3175.00    1500.00

001199 000 E303019

   30 YD 22    RB    09/05/97    04/19/04    3175.00    3175.00    1500.00

001208 000 E303030

   30 YD 22    RB    09/26/97    04/15/04    3175.00    3175.00    1500.00

001465 000

   20 YARD    RB    03/05/99    04/07/04    2975.00    2975.00    1175.00

001625 000

   20 YD RO    RB    09/08/99    04/19/04    3035.00    2832.66    1000.00

001626 000

   20 YD RO    RB    09/08/99    04/19/04    3035.00    2832.66    1000.00

001627 000

   20 YD RO    RB    09/08/99    04/20/04    3035.00    2832.66    1200.00

001628 000

   20 YD RO    RB    09/08/99    04/20/04    3035.00    2832.66    1200.00

001629 000

   ROLLOFF    RB    09/17/99    04/20/04    2623.50    2404.88    1200.00

001630 000

   ROLLOFF    RB    09/17/99    04/20/04    2623.50    2404.88    1200.00

001631 000

   ROLLOFF    RB    09/17/99    04/20/04    2623.50    2404.88    1200.00

001632 000

   ROLLOFF    RB    09/17/99    04/20/04    2623.50    2404.88    1200.00

001633 000

   ROLLOFF    RB    09/17/99    04/20/04    2623.50    2404.88    1200.00

001634 000

   20 YD RO    RB    09/01/99    04/15/04    3035.00    2782.08    1500.00

001635 000

   20 YD RO    RB    09/01/99    04/15/04    3035.00    2782.08    1500.00

001636 000

   20 YD RO    RB    09/01/99    04/19/04    3035.00    2832.66    1000.00

001637 000

   20 YD RO    RB    09/01/99    04/19/04    3035.00    2832.66    1000.00

001652 000

   20 YARD    RB    10/12/99    04/20/04    3153.50    2890.71    1200.00

001653 000

   20 YARD    RB    10/28/99    04/20/04    3153.50    2838.16    1200.00

001654 000

   20 YARD    RB    10/28/99    04/20/04    3153.50    2838.16    1200.00

001655 000

   20 YARD    RB    10/28/99    04/20/04    3153.50    2838.16    1200.00

001656 000

   20 YARD    RB    10/28/99    04/20/04    3153.50    2838.16    1200.00

001657 000

   30 YARD    RB    10/26/99    04/16/04    3610.00    3249.00    1700.00

001658 000

   30 YARD    RB    10/26/99    04/16/04    3610.00    3249.00    1700.00

001659 000

   30 YARD    RB    10/26/99    04/19/04    3610.00    3249.00    1500.00


Pg. 2

 

Exhibit 3.7

Dart Trucking Company, Inc.

Fixed Asset Disposal Report

 

Asset No.


   Description

   Class

   In-Service
Date


   Disposal
Date


   Acquired
Value


  

Current

Accumulated
Depreciation


   Net
Proceeds


001706 000

   20 YD BO    RB    11/12/99    04/13/04    3035.00    2234.08    1181.90

001707 000

   20 YD BO    RB    11/12/99    04/13/04    3035.00    2234.08    1181.81

001708 000

   20 YD BO    RB    11/12/99    04/13/04    3035.00    2234.08    1181.81

001709 000

   20 YD BO    RB    11/12/99    04/13/04    3035.00    2234.08    1181.81

001710 000

   20 YD BO    RB    11/12/99    04/13/04    3035.00    2234.08    1181.81

001711 000

   20 YD BO    RB    11/12/99    04/13/04    3035.00    2234.08    1181.81

001714 000

   20 YD BO    RB    11/19/99    04/13/04    3035.00    2493.26    1181.81

001715 000

   20 YD BO    RB    11/19/99    04/13/04    3035.00    2493.26    1181.81

001716 000

   20 YD BO    RB    11/30/99    04/27/04    3035.00    2493.26    1000.00

001717 000

   20 YD BO    RB    11/30/99    04/15/04    3035.00    2493.26    1200.00

001718 000

   20 YD BO    RB    11/22/99    04/13/04    2975.00    2443.98    1181.81

001719 000

   20 YD BO    RB    11/22/99    04/13/04    2975.00    2443.98    1181.81

001720 000

   20 YD BO    RB    11/22/99    04/27/04    2975.00    2443.98    1000.00

001721 000

   20 YD BO    RB    11/22/99    04/27/04    2975.00    2443.98    1000.00

001722 000

   20 YD BO    RB    11/10/99    04/20/04    2975.00    2443.98    1200.00

001723 000

   20 YD BO    RB    11/10/99    04/20/04    2975.00    2443.98    1200.00

001724 000

   20 YD BO    RB    11/10/99    04/20/04    2975.00    2443.98    1200.00

001725 000

   20 YD BO    RB    11/10/99    04/13/04    2975.00    2443.98    1181.81

001740 000

   30 YD RO    RB    12/20/99    04/30/04    3683.50    3192.37    1200.00

001741 000

   30 YD RO    RB    12/20/99    04/14/04    3683.50    3130.97    1200.00

001742 000

   30 YD RO    RB    12/20/99    04/14/04    3683.50    3130.97    1200.00

001743 000

   30 YD RO    RB    12/20/99    04/14/04    3683.50    3130.97    1200.00

001749 000

   20 YD RO    RB    12/10/99    04/15/04    3178.50    2754.70    1200.00

001751 000

   30 YD RO    RB    12/10/99    04/15/04    3678.50    3021.90    1200.00

001752 000

   30 YD RO    RB    12/10/99    04/15/04    3678.50    3021.90    1200.00

001753 000

   30 YD RO    RB    12/10/99    04/15/04    3678.50    3021.90    1200.00

001754 000

   30 YD RO    RB    12/10/99    04/15/04    3678.50    3021.90    1200.00

001790 000

   20 YD RO    RB    02/17/00    04/07/04    3035.00    2478.58    1175.00

001791 000

   20 YD RO    RB    02/17/00    04/07/04    3035.00    2478.58    1175.00

001792 000

   20 YD RO    RB    02/17/00    04/07/04    3035.00    2478.58    1175.00

001793 000

   20 YD RO    RB    02/17/00    04/06/04    3035.00    2478.58    1200.00

001794 000

   20 YD RO    RB    02/17/00    04/06/04    3035.00    2478.58    1200.00

001795 000

   20 YD RO    RB    02/17/00    04/06/04    3035.00    2478.58    1200.00

001796 000

   20 YD RO    RB    02/17/00    04/06/04    3035.00    2478.58    1200.00
                        
  
  

Class: RB

             Count=    75    252373.18    225823.23    91400.00
                        
  
  

001558 000 B61

   Pioneer    T1    06/01/99    04/21/04    3406.00    3406.00    0.00

001841 000 B61

   REPAIRS    T1    04/01/00    04/21/04    7539.15    7539.15    0.00

001855 000 B61

   NEW ENGI    T1    05/01/00    04/15/04    1812.85    1812.85    0.00
                        
  
  

Class: T1

             Count=    3    12758.00    12758.00    0.00
                        
  
  

001136 000 B70

   1997 MAC    T2    05/06/97    04/30/04    103890.00    72723.00    48000.00

001426 000 B61

   Premier    T2    12/01/98    04/15/04    91562.50    48833.33    55000.00

001638 000 B62

   KENWORTH    T2    09/01/99    04/30/04    85500.00    57000.02    70000.00
                        
  
  

Class: T2

             Count=    3    280952.50    178556.35    173000.00
                        
  
  

000632 000 D129

   88 TIBRO    TD    04/02/94    04/30/04    8573.28    8573.28    13000.00

000989 000 D13

   1994 TIE    TD    03/03/97    04/20/04    24000.00    19100.00    10000.00
                        
  
  

Class: TD

             Count=    2    32573.28    27673.28    23000.00
                        
  
  

001070 000 F20

   1986 FRU    TF    03/10/95    04/28/04    1.00    1.00    3500.00
                        
  
  

Class: TF

             Count=    1    1.00    1.00    3500.00
                        
  
  

 


Pg. 3

 

Exhibit 3.7

Dart Trucking Company, Inc.

Fixed Asset Disposal Report

 

Asset No.


   Description

   Class

   In-Service
Date


   Disposal
Date


   Acquired
Value


  

Current

Accumulated
Depreciation


   Net
Proceeds


000448 000 R512

   1993 R/O    TR    03/01/96    04/30/04    35977.52    35977.52    12000.00

000451 000 R511

   1993 R/O    TR    03/01/96    04/30/04    36393.97    36393.97    12000.00

000818 000 R41

   1997 TRA    TR    06/18/96    04/30/04    9010.00    9010.00    4000.00

000820 000 R40

   1997 CHE    TR    06/18/96    04/30/04    5740.00    5740.00    4000.00

000823 000 R29

   96 BENLE    TR    06/01/96    04/30/04    52202.00    41326.59    20000.00

000824 000 R30

   96 BENLE    TR    06/01/96    04/30/04    52202.00    41326.59    20000.00

000826 000 R32

   96 BENLE    TR    06/01/96    04/30/04    52202.00    41326.59    20000.00

001307 000 R616

   1992 BEN    TR    02/18/98    04/15/04    25000.00    25000.00    11000.00

001308 000 R615

   1994 BEN    TR    02/18/98    04/30/04    32000.00    24931.71    11000.00

001447 000 R37

   1994 BEN    TR    02/26/99    04/30/04    32000.00    32000.00    18500.00

001448 000 R38

   1995 BEN    TR    02/26/99    04/30/04    30000.00    25833.34    15000.00
                        
  
  

Class: TR

             Count=    11    362727.49    318866.31    147500.00
                        
  
  

002494 000 W126

   1987 STE    TW    05/01/02    04/22/04    0.00    0.00    6500.00

002680 000 W132

   WALKING    TW    12/31/02    04/30/04    13000.00    3466.67    13000.00

002753 000 W835

   side rol    TW    08/30/03    04/30/04    1100.00    366.66    0.00

002772 000 W835

   WALKING    TW    04/30/04    04/30/04    7300.00    0.00    18000.00

002773 000 W836

   WALKING    TW    04/30/04    04/30/04    7300.00    0.00    18000.00
                        
  
  

Class: TW

             Count=    5    28700.00    3833.33    55500.00
                        
  
  

000101 000 E788

   ROLLOFF    RB    03/01/96    05/01/04    1556.46    1556.46    350.00

000103 000 E835

   ROLLOFF    RB    03/01/96    05/01/04    1556.46    1556.46    350.00

000105 000 E781

   ROLLOFF    RB    03/01/96    05/01/04    1556.46    1556.46    350.00

000106 000 E1073

   ROLLOFF    RB    03/01/96    05/06/04    1556.46    1556.46    1275.00

000107 000 E1041

   ROLLOFF    RB    03/01/96    05/06/04    1556.46    1556.46    1275.00

000110 000 E1052

   ROLLOFF    RB    03/01/96    05/06/04    1556.46    1556.46    1275.00

000113 000 E895

   ROLLOFF    RB    03/01/96    05/06/04    1556.46    1556.46    1275.00

001797 000

   20 YD RO    RB    02/17/00    05/04/04    3035.00    2529.16    1200.00

001798 000

   20 YD RO    RB    02/17/00    05/04/04    3035.00    2529.16    1200.00

001799 000

   20 YD RO    RB    02/17/00    05/04/04    3035.00    2529.16    1200.00

001800 000

   20 YD RO    RB    02/17/00    05/04/04    3035.00    2529.16    1200.00
                        
  
  

Class: RB

             Count=    11    23035.22    21011.86    10950.00
                        
  
  

000041 000 D78

   REPAIR 7    TD    01/01/90    05/01/04    2305.66    2305.66    0.00

000658 000 D77

   REPLACE    TD    08/05/94    05/01/04    2564.95    2564.95    6500.00

000669 000 D122

   INSTALL    TD    09/23/94    05/01/04    7973.20    7973.20    0.00

000697 000 D112

   INSTALL    TD    11/07/94    05/01/04    1385.96    1385.96    0.00

000726 000 D129

   MAJOR OV    TD    01/20/95    05/01/04    6275.67    6275.67    0.00

000847 000 D127

   MAJOR DU    TD    08/01/96    05/01/04    3581.24    3581.24    0.00

000933 000 D111

   OVERHAUL    TD    09/29/95    05/01/04    6793.00    6793.00    0.00

001165 000 D112

   DUMP TRA    TD    07/05/97    05/01/04    6200.00    6200.00    6500.00

001249 000 D78

   REMOVE &    TD    11/01/97    05/01/04    2587.20    2587.20    0.00

001858 000 D204

   CYLINDER    TD    05/01/00    05/01/04    1600.04    1600.04    0.00

002331 000 D01

   DUMP TAR    TD    12/31/01    05/01/04    2460.00    2460.00    0.00
                        
  
  

Class: TD

             Count=    11    43726.92    43726.92    13000.00
                        
  
  

000464 000 R514

   1993 R/O    TR    03/01/96    05/01/04    39274.80    39274.80    14250.00

000825 000 R31

   96 BENLE    TR    06/01/96    05/01/04    52202.00    41326.58    14250.00
                        
  
  

Class: TR

             Count=    2    91476.80    80601.38    28500.00
                        
  
  


Pg. 4

 

Exhibit 3.7

Dart Trucking Company, Inc.

Fixed Asset Acquisition Report

 

Description


   ID#

  

Acquisition

Date


  

Acquisition

Amount


  

Notes


Walking Floor Trailer

   W835    04/30/2004    $ 7,300.00    Lease buyout – sold to Premier Equipment in April

Walking Floor Trailer

   W836    04/30/2004    $ 7,300.00    Lease buyout – sold to Premier Equipment in April

Yard Truck

        06/18/2004    $ 5,000.00    Purchased from Waste Management


Exhibit 3.9

 

1. Letters of Credit

 

Name


  

Description


       

Beneficiary


   Term

Second National Bank

   Letter of Credit    No.926 (89-241886-50)    The Quebec Minister of the Environment    Expires
4/27/05

Bank One

   *Letter of Credit    No. 00410182    Norfolk Southern Corporation    Expires
4/12/05

Bank One

   *Letter of Credit    No. 00346467    Union Pacific Railroad Company    Expires
1/29/05

Bank One

   *Letter of Credit    No. 00346466    Burlington Northern Sante Fe Railway    Expires
1/29/05

Bank One

   *Letter of Credit    STR17003    Pennsylvania Department of Environmental Protection    Expires
11/30/04

* Each Letter of Credit has $10,000 invested in a Certificate of Deposit as collateral for the Letter of Credit

 

2. Leases

 

Please refer to Exhibit 3.19.

 

3. Bonds

 

Please refer to Exhibit 3.21.


Exhibit 3.10

 

1. Extensions have been filed for the State and Federal 2003 Income Tax Returns for the Corporation and Subsidiaries as set forth in item 3 below.

 

2. On June 18, 2004 Dart Trucking Company, Inc. was notified that its Form 2290 Federal Excise Tax Return for the tax period ending July 31, 2003 would be audited beginning Monday, July 12, 2004. Subject to the provisions of Section 8 of the Agreement, Seller shall indemnify Buyer for any liability arising from the foregoing audit.

 

3. DartAmericA, Inc. & Subsidiaries

    Federal, State and Local Tax Filing Extensions

    for the tax year ended 12/31/03

 

Description


 

Extended

Due Date


Federal

  09/15/2004

State:

   

California

  10/15/2004

Connecticut

  10/01/2004

Delaware

  10/01/2004

Idaho

  10/15/2004

Illinois

  09/15/2004

Indiana

  10/15/2004

Iowa

  10/31/2004

Kentucky

  10/15/2004

Maine

  10/15/2004

Maryland

  09/15/2004

Massachusetts

  09/15/2004

Michigan

  10/31/2004

Minnesota

  09/15/2004

New Hampshire

  09/15/2004

New Jersey

  10/15/2004

New York

  09/15/2004

North Carolina

  10/15/2004

Ohio

  10/15/2004

Pennsylvania

  10/15/2004

Rhode Island

  09/15/2004

South Carolina

  09/15/2004

Texas

  11/15/2004

Vermont

  09/15/2004

Virginia

  09/15/2004

West Virginia

  09/15/2004

Wisconsin

  09/15/2004

Cities & Districts

   

Ashtabula, Oh

  10/30/2004

District of Columbia

  10/15/2004

Canfield, Oh

  10/30/2004

Cleveland, Oh

  10/30/2004

New York City

  09/15/2004

 

The foregoing returns shall be filed by the Corporation and/or Subsidiaries, as appropriate on or before August 30, 2004.


Pg. 1

 

Exhibit 3.11

 

1. Safety-Kleen Creditor Trust, by and through Oolenoy Valley Consulting LLC, Trustee v. Dart Trucking Company, Inc. On or about January 27, 2004, Safety-Kleen Creditor Trust, by and through Ooleney Valley Consulting LLC, Trustee (“Safety-Kleen”) served a summons and complaint for an adversary proceeding in the United States Bankruptcy Court for the District of Delaware against Dart Trucking Company, Inc. (“Dart”). The proceeding alleges that Dart received transfers in an aggregate amount of $286,494.00 from Safety-Kleen which are avoidable under Section 547(b) of the Bankruptcy Code. Safety-Kleen requests the Bankruptcy Court to require Dart to return the transfers.

 

The Corporation has filed an answer denying any liability and believes that it has several defenses to the allegations which, if successful, would reduce and/or eliminate any liability. This matter has been settled for $65,000. See attached pages 3.11(a)1-3.11(a)6.

 

2. The following accidents may result in lawsuits. All have been reported to Zurich American Insurance Company. All are considered automobile liability claims. Any potential losses resulting from such accidents should be within policy limits.

 

A.

   Claimant:   John Dow
     Claim Number:   4640081118
     D.O.A.:   10/31/01

 

Claimant was a Waste Management employee who fell while using one of Dart’s tractors to preload a trash trailer at a transfer station from which Dart was transporting garbage. He was able to finish work that day and report to work the next day, but the injury aggravated a preexisting condition he had and by the end of the second day he was quadriplegic. Dow is represented by counsel. The insurance company has retained defense counsel for Dart in anticipation of a future lawsuit. Significant investigation has been completed. Dow’s counsel claims that Dart was negligent because the tractor Dow used was filthy and had hydraulic fluid dripped on it, which made it slippery and unsafe. There was a yard tractor available for Dow to use. The condition of the tractor Dow did use was open and obvious to him.

 

B.

   Claimant:   Paul Altman
     Claim Number:   4660097896
     D.O.A.:   4/21/03

 

Claimant collided with Dart driver David Stone at an intersection. Stone had a stop sign and flashing red light. Altman had a flashing yellow light. Altman left no skid marks. Altman hit Stone’s tractor on the passenger side. Altman is represented by counsel, who claims Altman suffered serious injuries. He has not yet provided medical reports or bills to the adjuster.


Pg. 2

 

Exhibit 3.11

 

C.

   Claimant:   Unknown
     Claim Number:   4660105497
     D.O.A.:   1/6/04

 

Dart driver Brad Nadeau was involved in a 42-vehicle chain reaction collision on Interstate 80 during a whiteout. 25 people were injured and 6 were killed. Nadeau was driving unit 22. The fatalities were in units 18 (2), 19, 20 (2) and 36. We have no reason to believe that Nadeau contributed to the injuries or fatalities, but we have been contacted by the attorney for the estate of 2 of the decedents, looking for discovery-type information.


Pg. 1

 

Exhibit 3.11(a)

 

IN THE UNITED STATES BANKRUPTCY COURT

 

FOR THE DISTRICT OF DELAWARE

 

IN RE:

  Chapter 11

SAFETY-KLEEN CORP., et al. ,

 

Case No. 00-2303 (PJW)

Jointly Administered

Debtors.    
SAFETY-KLEEN CREDITOR TRUST, BY AND THROUGH OOLENOY VALLEY CONSULTING LLC, TRUSTEE,    
Plaintiff,    

v.

  Adv. Proc. No. 02-03641

DART TRUCKING COMPANY, INC.,

   
Defendant.    

 

SETTLEMENT AGREEMENT AND MUTUAL RELEASE

 

This Settlement Agreement and Mutual Release (hereinafter, the “Settlement Agreement”), effective upon execution by all parties hereto, is made and entered into by and between Oolenoy Valley Consulting LLC (the “Trustee”), as trustee of the Safety-Kleen Creditor Trust (the “Trust”), and Dart Trucking Company, Inc. (“Defendant”).

 

WHEREAS, On June 9, 2000 (the “Petition Date”), Safety-Kleen Corp. and its affiliated debtors (collectively the “Debtors”) commenced their respective reorganization cases by filing voluntary petitions for relief under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101-1330, as amended (the “Bankruptcy Code”) in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”), thereby becoming debtors in possession pursuant to 11 U.S.C. §§ 1107 and 1108; and


Pg. 2

 

Exhibit 3.11(a)

 

WHEREAS, the Debtors have filed an adversary proceeding (the “Avoidance Action”) against the Defendant in the Bankruptcy Court seeking to avoid and recover certain transfers in the amount of $286,494.00 made by the Debtors to Defendant during the ninety days prior to the Petition Date pursuant to 11 U.S.C. §§ 547, 548 and 550; and

 

WHEREAS, On August 1, 2003, the Bankruptcy Court entered an order (the “Confirmation Order”) confirming the Modified First Amended Joint Plan of Reorganization of Safety-Kleen Corp. and Certain of its Direct and Indirect Subsidiaries, dated July 21, 2003 (the “Plan”), pursuant to which avoidance claims, including the Avoidance Action, previously commenced by the Debtors were assigned to the Safety-Kleen Creditor Trust as of the December 24, 2003 effective date of the Plan; and

 

WHEREAS, the Trustee is authorized to pursue and to compromise and settle the Avoidance Action without further approval of the Bankruptcy Court; and

 

WHEREAS, in order to avoid the cost and risk associated with litigating the Avoidance Action, the parties have agreed to compromise and settle fully and finally the Avoidance Action for the mutual promises and undertakings set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged;

 

NOW, THEREFORE, the Trustee and Defendant agree as follows:

 

1. The Defendant shall pay to the Trustee the sum of $65,000.00 (the “Settlement Amount”) in two installments: (a) $35,000 on or before July 15, 2004; (b) $30,000 on or before September 30, 2004; in each case by check made payable to the Safety-Kleen Creditor Trust and delivered to:

 

The Safety-Kleen Creditor Trust

c/o Morris, Nichols, Arsht and Tunnell

1201 North Market Street

P.O. Box 1347

Wilmington, DE 19899-1347

Attn: William H. Sudell, Jr., Esquire


Pg. 3

 

Exhibit 3.11(a)

 

2. Promptly upon receipt by the Trustee of the full Settlement Amount in accordance with the terms hereof, the Avoidance Action shall be dismissed with prejudice, each party to bear its own attorneys’ fees and costs. For purposes of this paragraph and paragraph 5 below, the Settlement Amount shall not be deemed to have been received by the Trustee until such time as the checks paying it are honored by the banking institution(s) on which they are drawn.

 

3. Upon execution of this Settlement Agreement by the Trustee and Defendant, the Defendant by and on behalf of itself, its agents, affiliates, predecessors, subsidiaries, successors in interest, parent corporations, assigns, insurers, employees, attorneys, officers and directors hereby releases and discharges the Debtors, the Trust and the Trustee and their respective agents, employees, attorneys, officers and directors (in their capacities as representatives of the Debtors, the Trust and the Trustee) from any and all claims, counterclaims, rights, demands, costs, damages, losses, liabilities, attorneys’ fees, actions and causes of action whatsoever, whether known or unknown, liquidated, unliquidated, fixed, contingent, material, immaterial, disputed, undisputed, legal or equitable (hereinafter “Claims”), which the Defendant now has or hereafter may have against the Debtors and/or the Trustee arising from or related to the Avoidance Action, except that it is expressly understood and agreed that Defendant retains: (a) its rights with respect to all proofs of claim it has filed in the Debtors’ bankruptcy cases; and (b) its rights arising as a result of its payment of the Settlement Amount, pursuant to § 502(h) of the Bankruptcy Code.


Pg. 4

 

Exhibit 3.11(a)

 

4. Upon receipt of the full Settlement Amount, the Trustee, by and on behalf of itself, its agents, affiliates, predecessors, subsidiaries, successors in interest, parent corporations, assigns, insurers, employees, attorneys, officers and directors hereby releases and discharges Defendant and its respective agents, employees, attorneys, officers and directors (in their capacities as representatives of Defendant) from any and all claims, counterclaims, rights, demands, costs, damages, losses, liabilities, attorneys’ fees, actions and causes of action whatsoever, whether known or unknown, liquidated, unliquidated, fixed, contingent, material, immaterial, disputed, undisputed, legal or equitable (hereinafter “Claims”), which the Trustee now has or hereafter may have against Defendant arising from or related to the Avoidance Action, except that it is expressly understood and agreed that the Trust and the Trustee retain all defenses they may have to: (a) any and all of the proofs of claim Defendant has filed in the Debtors’ bankruptcy cases; and (b) Defendant’s claim pursuant to § 502(h) of the Bankruptcy Code.

 

5. This Settlement Agreement shall be binding upon and inure to the benefit of the Defendant, the Debtors and their estates, the Trustee and the Trust, and each of their respective agents, employees, representatives, officers, attorneys, shareholders, directors, parent and/or subsidiary corporations, affiliates, assigns, successors and predecessors in interest.

 

6. Should any action, suit or proceeding be commenced by either party to this Settlement Agreement to enforce any provision hereof, the prevailing party shall be entitled to recover from the other party, in addition to obtaining other relief, reasonable attorneys’ fees and costs and expenses incurred in said action, suit or proceeding, including any appeal.

 

7. Each party represents and warrants that no promise, inducement, or agreement not expressed herein has been made to such party in connection with this Settlement


Pg. 5

 

Exhibit 3.11(a)

Agreement, and that this Settlement Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous written or oral communications, understandings, and agreements with respect to the subject matter hereof.

 

8. It is expressly understood and agreed that this Settlement Agreement may not be altered, amended, modified or otherwise changed in any respect whatsoever except by a writing duly executed by authorized representatives of each of the parties hereto.

 

9. Each party acknowledges that the consideration referred to and the other terms of this Settlement Agreement do not constitute an admission or concession of liability or of any fact.

 

10. This Settlement Agreement shall be construed without regard to any presumption or other rule requiring construction against the party causing the document to be drafted. Each party warrants that such party has been represented and advised by counsel or has had full opportunity to be represented and advised by counsel with respect to this Settlement Agreement and all matters covered by it.

 

11. Each party agrees to be responsible for and to bear its own costs, expenses and attorneys’ fees incurred in connection with the Avoidance Action and not to seek from each other reimbursement of any such costs, expenses or attorneys’ fees.

 

12. This Settlement Agreement shall be construed and enforced in accordance with the provisions of the Bankruptcy Code and, where not inconsistent, the laws of the State of Delaware, without regard to the conflict of laws jurisprudence of the State of Delaware. Any dispute, action or proceeding arising out of or relating to this Settlement Agreement shall be within the exclusive jurisdiction of the United States Bankruptcy Court for the District of Delaware


Pg. 6

 

Exhibit 3.11(a)

 

13. This Settlement Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original but all of which shall constitute one and the same document.

 

IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have caused the Settlement Agreement to be duly executed as set forth below:

 

   

The Safety-Kleen Creditor Trust, by and through its trustee, Oolenoy Valley Consulting LLC

    By:  

 


        James K. Lehman
Date:                             
    Title:   Managing Member, Oolenoy Valley Consulting LLC
    Dart Trucking Company, Inc.
Date:                        By:  

 


    Title:  

 



Exhibit 3.13

 

From time to time, in the ordinary course of business the Corporation or Subsidiaries receive notices of violations of Environmental Laws which individually or in the aggregate do not have a material adverse effect on the Business.


Pg. 1

 

Exhibit 3.19

 

Dart Trucking Company, Inc. Contracts


       

Term


       

Description


Calgon Carbon

        Expires 2/28/2005         Provide Power units for hauling carbon

Waste Management of New Hampshire

        Expires 12/19/2006         Hauling and loading of trash from transfer stations to landfills

Waste Management of Massachusetts

        Terminated 6/30/2004         Hauling and loading of trash from transfer stations to landfills

V & M Star

        Expires 12/31/2004         Transport waste materials

Xtra Leasing

   50 Van Trailers    9/2003 - 8/2008    $202.00/unit/month    Lease vans

Penske leasing

   12 Power Units (Trucks)    8/2000 - 8/2006    $1536.00/unit/month    Lease Trucks

Ryder Truck Lease

   15 Power Units (Trucks)    7/1999 - 6/2005    $1419.00/unit/month    Lease Trucks

Ryder Truck Lease

   6 Power Units (Trucks)    5/1999 - 10/2005    $1494.00/unit/month    Lease Trucks

Ryder Truck Lease

   4 Power Units (Trucks)    12/1999 - 5/2006    $1494.00/unit/month    Lease Trucks

Ryder Truck Lease

   2 Power Units (Trucks)    12/1999 - 5/2006    $1494.00/unit/month    Lease Trucks

Ryder Truck Lease

   3 Power Units (Trucks)    11/1999 - 4/2006    $1532.00/unit/month    Lease Trucks

Ryder Truck Lease

   14 Power Units (Trucks)    1/2000 - 12/2005    $1419.00/unit/month    Lease Trucks

Ryder Truck Lease

   15 Power Units (Trucks)    9/2000 - 8/2007    $1510.00/unit/month    Lease Trucks

Ryder Truck Lease

   10 Power Units (Trucks)    7/2000 - 12/2006    $1542.00/unit/month    Lease Trucks

Ryder Truck Lease

   7 Power Units (Trucks)    7/2000 - 12/2006    $1542.00/unit/month    Lease Trucks

Ryder Truck Lease

   4 Power Units (Trucks)    7/2000 - 12/2006    $1543.33/unit/month    Lease Trucks

Ryder Truck Lease

   2 Power Units (Trucks)    2/2000 - 7/2006    $1375.00/unit/month    Lease Trucks

Ryder Truck Lease

   15 Power Units (Trucks)    7/2000 - 7/2007    $1510.00/unit/month    Lease Trucks

Ryder Truck Lease

   5 Power Units (Trucks)    7/2000 - 7/2007    $1522.00/unit/month    Lease Trucks

Qualcomm

   Satellite Messaging    12/27/01 - 12/26/06    $50/month /unit    Satellite Messaging & Truck Tracking

Minerva Enterprises, Inc.

   Dispose of 225,000 tons at Minerva Landfill              To satisfy amounts owed Dart Trucking Company & Dart Services, Inc.

Comdata

   Fuel Tax Reporting    Expires 10/31/04         Fuel Tax Service

(1)Caterpillar Financial Services Corporation

   1 Caterpillar Integrated Tool Carrier (Loader)    Expires 12/28/06    $3133.45/month    Loading Equipment for trash SN7BS01130

(2)Caterpillar Financial Services Corporation

   1 Caterpillar Integrated Tool Carrier (Loader)    Expires 6/30/04    $4271.82/month    Loading Equipment for trash SN7BS01025

(3)Caterpillar Financial Services Corporation

   1 Caterpillar Integrated Tool Carrier (Loader)    Expires 6/30/04    $4481.27/month    Loading Equipment for trash SN7BS01144

(4)Caterpillar Financial Services Corporation

   1 Caterpillar Excavator    Expires 6/30/04    $5783.52/month    Loading Equipment for trash SN2JR03511


Pg. 2

 

Exhibit 3.19

 

Dart Trucking Company, Inc. Contracts Continued


  

Term


  

Description


Dart Realty, Inc.

   Expired 12/31/99 (Currently month to month)    $5,000.00/month    Lease for 61 Railroad Street, Canfield, Ohio

Cottage Grove LLC

   Expires 10/31/04    $4,500.00/month    Lease for 11861 South Cottage Grove, Chicago, Illinois

108 Turnpike LLC

   Expired 7/31/03 (Currently month to month)    $3,500.00/month    Lease for 108 Londonderry Turnpike, Hooksett, N.H.

James & Betty Jane Powell

   Expired 5/31/99 (Currently month to month)    $ 800.00/month    Lease for 1807A Route 75, Kenova, West Virginia

 

Dart Trucking Company, Inc. UCC Filings

 

Statement Number


  

Secured Party


   Date Filed

  

Collateral


OH00053731769

   Caterpillar Finance    8/29/02    Lease (1) above

OH00047341097

   Caterpillar Finance    4/3/02    Lease (2) above

OH00047519519

   Caterpillar Finance    4/8/02    Lease (3) above

OH00047341320

   Caterpillar Finance    4/3/02    Lease (4) above

OH00043716907

   QUALCOMM Incorporated    1/9/02   

Integrated mobile communications terminals

(satellite messaging system)


Pg. 1

 

Exhibit 3.21

 

Insurance:

 

Type of Insurance


  Policy #

 

Policy

Effective

Date


 

Policy

Expiration

Date


  Limits

 

Insurance

Company


Commercial General

Liability

  GL 03561575-04   09/01/2003   09/01/2004   $1M/$2M  

Zurich

American Ins. Co.

Automobile Liability
MCS 90 Applies Trailer Interchange

  TRK 3561577-04   09/01/2003   09/01/2004   $1M  

Zurich

American Ins. Com

Excess Liability
Umbrella Form

  SUO 3560245-04   09/01/2003   09/01/2004   $15M   Steadfast Insurance Company

Workers’ Compensation and

Employers’ Liability

  WC 3560246-04   09/01/2003   09/01/2004   $1 M  

Zurich

American Ins. Co.

Motor Truck Cargo

  IM 01204619   09/01/2003   09/01/2004   $250,000  

St. Paul Fire &

Marine Ins. Co.

Professional Environmental

Consultants Liability

Insurance

  PEC 356157602   09/01/2003   09/01/2004   $5M/$5M   Steadfast Insurance Company

Property

  KTK-CMB-297T287-8-03   09/01/2003   09/01/2004   Scheduled   The Travelers Indemnity Company

Directory & Officers

Liability

  YXB 002495A   06/16/2004   06/16/2005   $5M   Genesis Insurance Company

 

Upon the Closing, the Corporation and Subsidiaries shall no longer be insureds under any of the foregoing policies. Coverage will apply for all insured events occurring prior to the Closing .

 

Bonds:

 

Bond #


  

Obligee


  

Bond Type


   Effective

   Expires

   Premium

   Bond
Amount


Dart Services, Inc.

                                 

929301207

   Commonwealth of Massachusetts    Financial Guarantee    01/18/2004    01/18/2005    $ 122    $ 10,000

Dart Trucking Company, Inc.

                                 

R 100615685

   Commonwealth of Kentucky    Financial Guarantee    06/16/2004    06/16/2005    $ 100    $ 9,000


Pg. 2

 

Exhibit 3.21

 

Bonds Continued :

 

Bond #


 

Obligee


 

Bond Type


  Effective

  Expires

  Premium

  Bond
Amount


R 124046651

  Comdata Network   Financial Guarantee   09/28/2003   09/28/2004   $ 100   $ 5,000

R 124149942

  Interstate Commerce Commission   Financial Guarantee   12/14/2003   12/14/2004   $ 112   $ 10,000

R 142341618

  Pennsylvania Turnpike   Financial Guarantee   07/01/2004   07/01/2005   $ 135   $ 15,000

R 142341621

  Ohio Turnpike Commission   Financial Guarantee   07/01/2004   07/01/2005   $ 270   $ 30,000

R 142341635

  Pennsylvania Public Utility   Financial Guarantee   07/01/2004   07/01/2005   $ 100   $ 10,000

58614166

  Canada Border Services Agency   Tax   04/27/2004   04/27/2005   $ 500   $ 25,000

R 929287911

  Massachusetts Turnpike   Financial Guarantee   02/14/2004   02/14/2005   $ 180   $ 20,000

R 929287912

  New York State Thruway   Financial Guarantee   01/01/2004   01/01/2005   $ 225   $ 25,000

* 929320344

  Military Traffic Management   Performance   04/15/2004   04/15/2005   $ 2,000   $ 100,000

* Seller is an indemnitor on this Bond.


Pg. 1

 

Exhibit 3.25

DartAmericA, Inc. & Subsidiaries

Employee List

 

DartAmericA, Inc.

 

Name


  

Job Title


  

Current Annual

Compensation*


  

Remaining
Vacation


Alberti, Michael

   Sales Representative    $ 60,000.00    1 week

Bruce, Lisa

   Manager-Operations    $ 65,000.00    3 weeks

Cartwright-Chorba, Valerie

   Secretary/Receptionist    $ 20,800.00    None

Celli, Deborah

   Manager-Customer    $ 42,000.00    3 weeks

Delgado, Mary

   Senior Staff Accountant    $ 36,000.00    None

Felde, Mary

   Manager-Agent/Driver    $ 28,000.00    6 days

Jones, Shelley

   Compliance Manager    $ 45,000.00    1 week

Hopkinson, Rachel

   Clerk, Invoicing    $ 22,880.00    36 hours

Houston, Robert (1)

   Sales Representative    $ 62,000.00    1 week

Keenan, Kaycee

   Clerk, Payroll    $ 22,880.00    68 hours

Lamb, Terry

   Driver Qualification Clerk    $ 22,880.00    12 hours

Lewis, Amanda

   Clerk, Invoicing    $ 10,712.00    None

Lewis, Debbie

   Supervisor, Invoicing    $ 30,000.00    2 weeks

McFarland, Tracey

   Controller-DAI    $ 60,000.00    2 weeks

Morgan, Marsha

   Customer Service    $ 28,080.00    52 hours

Rimar, George (2)

   General Freight    $ 65,104.00    2 weeks

Sidoti, Joseph

   Territory Sales Manager    $ 52,644.00    2 weeks

Smith, Richard

   Safety/Maintenance    $ 32,500.00    1 week

Vasquez, Rebecca

   Recruiter    $ 19,500.00    1 week

Vennetti, Mary

   Clerk, Invoicing    $ 18,720.00    12 days

Walker, Linda

   Clerk, Invoicing    $ 22,880.00    4 days

Washington, Cathy

   Supervisor-DAI Payroll    $ 31,400.04    2 weeks

Woolford, Linda

   Clerk, Invoicing    $ 23,920.00    None

* Current Annual Compensation for truck drivers reflects actual 2003 wages.
(1) Commission – 1  1 / 2 % of all sales attributed to him in excess of $5 million annually – payable quarterly.
                          – ½ of the difference between standard agent compensation of 10% and contracted agent compensation – payable monthly.
(2) Commission – Approximately 1% of brokerage gross profit attributable to him – payable quarterly.


Pg. 2

 

Exhibit 3.25

DartAmericA, Inc. & Subsidiaries

Employee List

 

Dart Trucking Company, Inc.

 

Name


   Job Title

  

Current Annual

Compensation*


  

Remaining
Weeks

Vacation


Anthony, Daniel

   Truck Driver    $ 39,255.36    1

Arnett, Robert

   Truck Driver    $ 28,080.00    2

Arnold, Kenneth

   Operator    $ 31,200.00    2

Arthur, David

   Truck Driver    $ 0.00    0

Ashcroft, Stephen

   Truck Driver    $ 49,495.04    0

Ayers, James

   Truck Driver    $ 57,353.56    0

Barton, Charles

   Equipment Operator    $ 30,160.00    0

Batchelder, Eddie

   Truck Driver    $ 8,849.27    0

Beaman, Hancel

   Truck Driver    $ 44,543.09    1

Beaudoin, Michael

   Truck Driver    $ 49,714.50    1

Betts, Donald

   Truck Driver    $ 39,743.27    0

Bondi, Anthony

   Truck Driver    $ 35,907.47    0

Brown, David

   Yardman    $ 29,120.00    0

Brown, Donald

   Manager, Solid Waste    $ 55,000.00    3

Brown, Joseph

   Loader    $ 34,320.00    4

Bryant, Ernest

   Truck Driver    $ 47,492.27    4

Campbell, Richard

   Truck Driver    $ 43,475.63    1

Castro, Mark

   Truck Driver    $ 0.00    0

Chernyak, Vladimir

   Truck Driver    $ 44,172.58    0

Clay, Edward

   Truck Driver    $ 38,402.13    2

Coates, Michael

   Truck Driver    $ 52,864.39    2

Congo, Kevin

   Truck Driver    $ 15,125.50    0

Connolly, Edward

   Truck Driver    $ 53,542.48    1

Cosby, Kevin

   Truck Driver    $ 20,520.65    1

Croak, Anthony

   Truck Driver    $ 53,668.98    3

Crump, James

   Truck Driver    $ 47,523.50    4

Dauphinais, James

   Truck Driver    $ 6,529.43    0

Deflorio, John

   Truck Driver    $ 45,611.48    1

Dempsey, Oscar

   Shop Foreman    $ 31,200.00    1

Deslauriers, Ronald

   Truck Driver    $ 33,280.00    2

DeVaughn, George

   Truck Driver    $ 31,200.00    1

Dickens, Jr., John

   Truck Driver    $ 42,283.06    2

Dunn, Jr., John

   Truck Driver    $ 12,395.32    0

Durda, Michael

   Dispatcher-DSI    $ 39,375.00    2

Foster, Clifford

   Truck Driver    $ 37,014.54    3

Fryer, Billy

   Truck Driver    $ 18,571.72    0

Goss, Frank

   Truck Driver    $ 41,334.24    4

Goss, Ricky

   Loader/Operator    $ 31,408.00    1

Hamett, Nicholas

   Dispatcher    $ 51,000.00    1

Hanes, James

   Truck Driver    $ 23,920.00    1

Haney, Byron

   Truck Driver    $ 44,857.61    2

Hatfield, Gary

   Truck Driver    $ 28,080.00    1

Holderby, Larry

   Truck Driver    $ 48,971.63    0

Huffman, Robert

   Truck Driver    $ 37,313.04    3

* Current Annual Compensation for truck drivers reflects actual 2003 wages.


Pg. 3

 

Exhibit 3.25

DartAmericA, Inc. & Subsidiaries

Employee List

 

Dart Trucking Company, Inc.

 

Name


   Job Title

  

Current Annual

Compensation*


  

Remaining
Weeks

Vacation


Jenkins, John

   Mechanic    $ 33,280.00    0

Johnston, Wayne

   Truck Driver    $ 21,840.00    0

Keener, Robert

   Yardman    $ 31,200.00    0

Kellogg, Denise

   Manager-Drivers    $ 45,000.00    1

Kimball, John

   Truck Driver    $ 29,120.00    1

Klink, Jamie

   Central Dispatch-Gen    $ 33,000.00    1

Kohn, Wayne

   Truck Driver    $ 35,054.08    2

LaBelle, David

   Truck Driver    $ 30,576.00    1

LeMaster, Ronald

   Mechanic    $ 29,120.00    3

Lenhart, David

   Truck Driver    $ 44,943.74    0

Lovett, Christopher

   Truck Driver    $ 0.00    0

Mack, Gregory

   Truck Driver    $ 49,014.53    1

Matthews, Jeffrey

   Truck Driver    $ 38,986.99    2

McDanel, Stewart

   Truck Driver    $ 27,454.62    1

McInnes, Raymond

   Truck Driver    $ 0.00    0

Meek, Huston

   Truck Driver    $ 45,514.50    3

Meek, Paul

   Truck Driver    $ 40,571.78    3

Moore, Jack

   Truck Driver    $ 42,815.16    3

Nadeau, Bradford

   Truck Driver    $ 5,208.76    0

Omar, Abdulwahab

   Truck Driver    $ 39,616.60    0

Orr, Kenneth

   Truck Driver    $ 45,688.14    3

Pare’, Mark

   Excavator    $ 35,360.00    1

Plourde, Jason

   Truck Driver    $ 29,120.00    0

Poulin, Joseph

   Yard Man