Exhibit 2.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made this 8th
day of July, 1998, by and between XXXXXXXXX NATIONAL, INC., a
Wisconsin corporation (hereinafter, the "Purchaser"), and
BUILDERS TRANSPORT, INC., and its subsidiaries: BUILDERS
TRANSPORT INCORPORATED, CCG CORP., INC., BUILDERS TRANSPORT OF
TEXAS, INC., ALSTAFF, INC., APPLIED LOGISTIC SYSTEMS, INC., and
GRAND PRAIRIE LAND COMPANY, INC., (hereinafter referred to
collectively as the "Debtor" and the "Seller").
W I T N E S S E T H:
--------------------
WHEREAS, on May 21, 1998, Seller filed a voluntary petition for
relief under Chapter 11 of Title 11 of the United States Code in
the United States Bankruptcy Court for the Northern District of
Georgia, Atlanta Division, ("the Bankruptcy Court"), Case Nos.
98-68798 through 98-68804, which actions were jointly
administered under Case No. 98-68798,
WHEREAS, the Seller is currently a Chapter 11 Debtor and
Debtor-in-Possession under Title 11 of the United States Code;
WHEREAS, on June 30, 1998, pursuant to Order of the Bankruptcy
Court Approving Bidding Procedures in Connection With The Sale of
Debtor's Assets, an auction of substantially all of the assets of
the Debtor was conducted and approved by the Bankruptcy Court.
Xxxxxxxxx was ultimately the highest bidder and Xxxxxxxxx'x Offer
(the "Offer") was accepted by the Debtor and approved by the
Bankruptcy Court. Attached hereto as Exhibit "A" is a true and
correct copy of the Offer, which was clarified and explained on
the record, and such clarifications and explanations are
incorporated herein by reference;
WHEREAS, the terms of the Offer contemplate Execution of this
definitive Asset Purchase Agreement by July 8, 1998.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto agree as
follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
---------------------------
In reliance upon the representations, warranties and agreements
hereinafter set forth, and in accordance with the terms and
subject to the conditions hereinafter set forth:
1.1 Definitions. Certain terms are defined in various sections
of this Agreement. In addition the following terms have the
definitions set forth herein:
(a) "Designated Accounts Receivable" As used herein, the term
"Designated Accounts Receivable" shall mean the amount of Trade
Accounts Receivable as of the FRD excluding (i) 90 day aged Trade
Accounts Receivable and excluding (ii) accounts receivable
identified in Section 4.3 of this Agreement;
(b) "Financial Responsibility Date" ("FRD") means 12:01 a.m.,
July 11, 1998;
(c) "Trade Accounts Receivable" means accounts receivable
generated with respect to the transportation of freight including
ancillary as well as line haul charges, and shall include such
amounts with respect to: (i) In-Transit Loads and (ii) loads
delivered but remaining unbilled in the ordinary course;
(d) "In-Transit Load" means a load which has been placed in or
on a trailer as the case may be, and has been removed from the
shipper facility but which have not been delivered as of the FRD,
regardless of whether such load was in fact in motion as of the
FRD.
(e) "Closing Date" means July 31, 1998.
1.2 Purchase and Sale of Assets. Seller hereby agrees to sell,
transfer, assign, convey and deliver to Purchaser, or its
designee or assignee, free and clear of any lien or other claim
pursuant to 11 U.S.C. 363(f) and Purchaser, or its designee or
assignee, hereby agrees to purchase and acquire from Seller all
assets, privileges, rights, interests and claims of Seller,
whether real or personal, tangible or intangible, of every type
and description, excluding only those assets defined as Excluded
Assets in Section 1.3 below (the "Purchased Assets"). The
Purchased Assets include, but are not limited to, the following:
(a) all Trade Accounts Receivable as of the Closing Date;
(b) all proceeds of Trade Accounts Receivable received
subsequent to the FRD, such proceeds to be held by The CIT
Group/Business Credit, Inc. ("CITBC") subject to its security
interest, in a segregated interest bearing account and delivered
to Purchaser at Closing or credited at Closing to the Purchase
Price, together with earned interest;
(c) all rolling stock owned free and clear of liens by
Seller or in which either CITBC or The CIT Group/Equipment Financing,
Inc. ("CITEF") asserts a first priority security interest
(the "Seller Owned Rolling Stock"),consisting of at least 66 tractors
and 3489 trailers;
(d) all real estate owned by the Seller as reflected on the
March 31, 1998 Balance Sheet (the "Real Property");
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(e) all non-rolling stock personal property assets of the
Seller, including but not limited to general office furniture,
fixtures, computer systems (including software) and other office
equipment, books and records, as well as machinery, equipment,
tools, inventories of supplies and spare parts and the like
wherever located; including, but not limited to, the inventory of
personal property. The Purchaser agrees to provide the Debtor,
and any subsequently appointed Trustee, reasonable access to the
books and records of Seller provided that such request shall not
unreasonably interfere with the operations or activities of the
Purchaser subsequent to closing;
(f) all general intangibles, including without limitation, all
plates, permits, operating authorities, trade names and
trademarks, contract rights, customer lists, driver lists and the
right to employ Seller's employees;
(g) all claims of the Seller against third parties, including,
without limitation, tax refunds and all bankruptcy avoidance
claims, except as otherwise provided. The Debtor and the
Creditors' Committee shall fully cooperate with the Purchaser so
that any avoidance action filed by the Purchaser may be pursued
in the name of the Estate or the Creditors' Committee.
At Closing all liens or claims with respect to the real property
and the liens and claims of CITBC and CITEF shall be paid in full
and satisfied.
1.3 Excluded Assets. Notwithstanding the foregoing, Purchaser
shall not purchase or receive or be under any obligation with
respect to the "Excluded Assets". For purposes of this
Agreement, "Excluded Assets" shall mean the following assets of
Seller:
(a) the cash or cash equivalents of the Seller as shall exist as
of close of business on July 10, 1998;
(b) D and O claims against individuals not employed by the
Purchaser as of the Closing Date;
(c) claims against lenders or lessors including claims arising
under 11 U.S.C. 544-550, 506;
(d) all leased rolling stock and all other rolling stock owned
by Seller in which any creditor other than CITBC or CITEF holds a
security interest, and any proceeds of such leased rolling stock and
such owned rolling stock.
1.4 Purchase Price. In consideration of the purchase of the
Purchased Assets, the Purchaser shall pay to the Seller the sum
of Forty-One Million Seven Hundred Eighty-Nine Thousand Four
Hundred Sixty-One and 00/100 Dollars $41,789,461.00 (the
"Purchase Price"), payable as set forth below, subject to
specified adjustments and credits:
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a) Upon execution hereof, $500,000.00, payable from the funds
previously deposited by Purchaser with Holland & Knight, LLP, on
or about June 29, 1998;
b) On the Closing Date, July 31, 1998, Purchaser shall pay to
Seller the sum of Thirty-Nine Million Two Hundred Eighty-Nine
Thousand Four Hundred Sixty-One and No/100 Dollars ($39,289,461.00)
in cash or other immediately available funds;
c) On the Closing Date, July 31, 1998, Purchaser shall pay into
escrow the sum of Two Million and 00/100 Dollars ($2,000,000.00)
to be held in a mutually agreeable escrow until any adjustments
or credits are made or applied to the Purchase Price, as defined
in Paragraph 1.5, below.
1.5 Adjustments to Purchase Price. The Purchase Price shall be
adjusted as follows:
a) Missing or destroyed Seller-Owned Rolling Stock. For each
seller-owned tractor or trailer (numbering 66 and 3489,
respectively) "missing" or "destroyed", as such terms are defined
at Paragraph 5 of the Offer, the Purchase Price shall be reduced
by $25,000 and $3,500, respectively less the proceeds of casualty
insurance received by Purchaser on behalf of such tractors or
trailers.
b) Uncollectible Trade Accounts Receivable Due to Justified
Set-Offs. The Purchase Price shall be reduced on a dollar for
dollar basis to the extent that Accounts Receivable are
uncollectible due to justified set-offs resulting from actions
occurring or arising prior to the FRD.
c) Designated Accounts Receivable.
i) If the amount of Designated Accounts Receivable is less than
$22 million, the Purchase Price shall be reduced at a rate of 66
2/3 cents for each dollar of deficit below $22 million, and on a
dollar for dollar basis for each dollar of deficit below $20
million.
ii) If actual collections by Purchaser with respect to Designated
Accounts Receivable plus 90 day aged Trade Accounts Receivable
exceed $22 million, the Purchase Price shall be increased at a
rate of 50 cents for each dollar of such excess amount.
d) Ceiling on Certain Purchase Price Adjustments. The maximum
reduction in Purchase Price under subparagraphs (a), (b) and (c)
shall be $1,500,000.
1.6 Credits Against Purchase Price. Purchaser shall be entitled
to credits against the Purchase Price for the following:
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a) Funded Amounts For Loads Delivered Prior to the FRD and Flat
Bed Division In-Transit Loads. To the extent that Purchaser
elects to fund driver payroll or other costs or expenses with
respect to: (i) loads delivered prior to the FRD and (ii) Flat
Bed Division In-Transit Loads, Purchaser shall receive credit
against the Purchase Price on a dollar for dollar basis, plus
interest on each advance on a per diem basis to the Closing Date,
calculated at a rate of 9.5% per annum.
b) Other Funded Expenses of Seller. To the extent that Purchaser
elects to fund payment of any other administrative cost or
expense of Seller, pursuant to the terms of this agreement or
otherwise, Purchaser shall receive credit against the Purchase
Price on a dollar for dollar basis, plus interest on each advance
on a per diem basis to the Closing Date, calculated at a rate of
9.5% per annum.
c) Assumed Unpaid Vacation and Sick Leave. If Purchaser elects
to employ any of Seller's employees and assumes any unpaid
vacation or sick leave accruing prior to the FRD in connection
with such employees, Purchaser shall receive credit against the
Purchase Price on a dollar for dollar basis.
1.7 Prorations With Respect to Real Estate Purchased. Purchaser
may in its sole discretion refuse to acquire any or all of
Seller's Real Property without adjustment to the Purchase Price.
At the Closing, all ad valorem property taxes, water and sewer
charges and assessments of any kind on the real estate actually
purchased, for the year of the Closing shall be prorated between
the Purchaser and the Seller as of midnight of the Closing Date.
Such proration shall be based upon the latest ad valorem property
tax, water, sewer charge and assessment xxxx available. If upon
receipt of the actual ad valorem property, tax, water, sewer and
assessment bills for the real estate actually purchased, such
proration is incorrect, then, either the Purchasers or Seller
shall be entitled, upon demand, to receive such amounts from the
other as may be necessary to correct such malapportionment. This
obligation so to correct such malapportionment shall survive the
Closing and not be merged into any documents delivered pursuant
to the Closing.
1.8 No Assumption of Liabilities. Except as expressly provided
herein, Purchaser shall assume no liability or obligation of
Seller of any kind or description, whether known or unknown,
contingent or fixed, asserted or unasserted, accrued or
unaccrued, liquidated or unliquidated or due or to become due,
including, but not limited to (a) any liability or obligation of
the Seller arising out of, resulting from, or incident to, the
results of Seller's operations prior to the FRD or, with respect
to any operations of the Flat Bed Division, after the FRD; and
(b) for any legal or accounting fees or expenses of the Seller.
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1.9 Allocation of Purchase Price. The purchase price for the
Purchased Assets shall be allocated as determined by the
Purchaser, in its sole discretion. Purchaser shall provide
Seller with information regarding the allocation within thirty
(30) days of the date hereof. The parties hereto agree that they
will not take any position inconsistent with such allocation for
Federal or state income tax purposes.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
--------------------------------------------
The Seller represents and warrants to Purchaser, the following:
2.1 Authority. The execution and delivery by the Seller of
this Agreement and all other agreements and instruments to be
executed by the Seller, the performance by the Seller of its
covenants and agreements hereunder and thereunder, and the
consummation of the transactions contemplated hereby, have been
duly authorized by all necessary corporate action or the
Bankruptcy Court. This Agreement and each and every agreement,
document or instrument to be executed, delivered and performed by
the Seller in connection with this Agreement, constitute, or
will, when executed and delivered, constitute, valid and binding
obligations of the Seller, as the case may be, enforceable in
accordance with their terms, subject as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally from time to time in effect.
2.2 Ownership of Assets.
a) The Seller owns and has good and marketable title to the
Purchased Assets.
ARTICLE III
REPRESENTATION AND WARRANTIES OF PURCHASER
------------------------------------------
Purchaser represents and warrants to Seller the following:
3.1 Due Organization. The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws
of the State of Wisconsin, and has the full power and authority
to conduct its business as presently conducted and, subject to
regulatory approval to operate the Purchased Assets subsequent to
the execution of this Agreement. The Purchaser has the capacity
and authority to execute and deliver this Agreement, to perform
under the Agreement and to effect the purchase of the Purchased
Assets.
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3.2 Authority. The execution and delivery by the Purchaser of
this Agreement and all other agreements and instruments to be
executed by the Purchaser, the performance by the Purchaser of
its covenants and agreements hereunder and thereunder, and the
consummation of the transactions contemplated hereby, have been
duly authorized by all necessary corporate action. This
Agreement and each and every agreement, document or instrument to
be executed, delivered and performed by the Purchaser in
connection with this Agreement, constitute, or will, when
executed and delivered, constitute, valid and binding obligations
of the Purchaser, enforceable in accordance with their terms,
subject as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws
affecting the enforcement of creditors' rights generally from
time to time in effect.
3.3 No Conflicts. Subject to regulatory approval, the
execution, delivery and performance of this Agreement and each
and every agreement, document or instrument to be executed,
delivered and performed by the Purchaser in connection with this
Agreement, will not, with or without the giving of notice or the
lapse of time, or both: (i) violate any provision of law,
statute, rule or regulation to which it is subject, (ii) violate
any order, judgment or decree applicable to it, (iii) conflict
with, result in a breach or default under, or cause the
termination of (with or without the giving of notice or the
passage of time or both), any term or condition of any provision
of the Purchaser's articles of incorporation or bylaws or any
document, agreement, or other instrument to which the Purchaser
is a party or by which it may be bound, or (iv) result in the
creation or imposition of any lien, claim, charge, restriction,
security interest or encumbrance of any kind whatsoever upon its
assets or the Purchased Assets to be acquired.
ARTICLE IV
FINANCIAL RESPONSIBILITY; TREATMENT OF IN-TRANSIT AND OTHER LOADS
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4.1 Load Delivered Prior to FRD. Seller shall remain solely
responsible for all costs and expenses with respect to loads
delivered prior to the FRD. All accounts receivable generated
with respect to such loads shall be conveyed to the Purchaser at
Closing, and such accounts receivable shall be included in
Designated Accounts Receivable for purposes of Section 1.5(c) of
this Agreement.
4.2 Flat Bed In-Transit Loads. Seller shall, at its sole cost
and expense, complete delivery to consignee of Flat Bed
In-Transit Loads, but Seller has no responsibility for return of
the involved rolling stock. All accounts receivable generated
with respect to such loads shall be conveyed to Purchaser at
Closing, and such accounts receivable shall be included in
Designated Accounts Receivable for purposes of Section 1.5(c) of
this Agreement.
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4.3 Van and Dedicated In-Transit Loads. Purchaser shall pay all
costs and expenses incurred after the FRD with respect to Van and
Dedicated Division In-Transit Loads. In complete satisfaction of
Seller's costs and expenses incurred with respect to such loads
prior to the FRD, Purchaser shall, at Closing, pay the sum of
$300,000 in addition to the Purchase Price. All accounts
receivable generated with respect to such loads shall be conveyed
to Purchaser at Closing, and such accounts receivable shall not
be included in Designated Accounts Receivable for purposes of
Section 1.5(c) of this Agreement.
4.4 Loads Picked Up After FRD. Purchaser shall be solely
responsible for all costs and expenses with respect to loads
picked up after the FRD.
ARTICLE V
DESIGNATED CONTINUED OPERATIONS, LEASED FACILITIES,
AND LEASED TRACTORS AND TRAILERS
----------------------------------------------------
5.1 Designated Continued Operations. Purchaser has designated
continuation of the Van and Dedicated Division operations of
Seller, and shall pay all costs and expenses for such designated
operations after the FRD. Conversely, Purchaser has not
designated continuation of the Flat Bed Division operations and
is not undertaking financial responsibility for any cost or
expense of such operations or their discontinuance (e.g. delivery
of In-Transit Loads or return of drivers to their domicile)
except as otherwise specifically provided herein.
5.2 Lease Facilities. Purchaser has designated certain leased
facilities that it intends to use and undertakes such obligations
with respect thereto as set forth at Paragraph 6 of the Offer.
5.3 Leased Tractors and Trailers. Purchaser has designated
certain leased tractors and trailers that it intends to utilize
and undertakes such obligations with respect thereto as set forth
in Paragraph 8 of the Offer.
5.4 Return of Leased Tractors and Trailers. Purchasers
obligations with respect to return of leased tractors and
trailers are as set forth at Paragraph 9 of the Offer.
5.5 Camden Headquarters Building. Purchaser shall be allowed to
occupy the Camden Headquarters Building on a shared use basis
with Seller for a period of up to four months from the FRD for
which Purchaser shall pay 75% of the current monthly rental plus
its share of utilities pro rated on an equitable basis.
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ARTICLE VI
TRANSITION SERVICES
-------------------
6.1 Purchaser has designated various transition services as well
as the number of employees, and, where possible, their identity,
hereinafter referred to as "transition service employees".
Seller will attempt in good faith to retain such transition
service employees as Seller's employees for a period of up to six
months from the FRD, provided however, Purchaser may elect to
de-designate all or any portion of such transition services or
transition service employees at any time.
6.2 For the period from the FRD until the earlier of (i) six
months from the FRD or (ii) de-designation by Purchaser,
Purchaser shall reimburse Seller for costs and expenses incurred
by Seller with respect to transition service employees during the
provision of transition services directed by Purchaser.
Purchaser assumes no liability with respect to any costs or
expenses incurred with respect to transition service employees
either before the FRD or following de-designation by Purchaser,
including, but not limited to, WARN act liabilities, severance,
out placement services or unemployment compensation.
6.3 It is specifically understood that while Seller will
cooperate with Purchaser in attempting to retain the services of
present staff designated by Purchaser, Seller shall not be liable
for any loss of such staff or services but Seller will, upon
Purchaser's request, attempt in good faith to arrange for
replacement services acceptable to Purchaser.
ARTICLE VII
MISCELLANEOUS
-------------
7.1 Executory Contracts. Before the Closing Date, Purchaser may
require Seller to assume and assign to Purchaser, at Purchaser's
cost and expense, certain executory contracts and leases to which
Seller is a party, other than leases with respect to rolling
stock and leases of terminal facilities which Purchaser has not
designated for continued operation. Seller agrees to file a
timely motion to extend the deadline for assumption or rejection
of real estate leases with respect to any terminal facilities
which have been designated by Purchaser for continued operation.
7.2 WARN Notice. Seller will comply with all notice
requirements under 29 U.S.C. 2101 - 2109 (the "WARN Act") and
all applicable state law counterparts and will cooperate with
Purchaser in connection with such compliance.
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7.3 Xxxx Xxxxx Xxxxxx Act Notice and Filing. As soon as
practicable after execution of this Agreement (but no later than
July 15, 1998), Purchaser, with Seller's cooperation, will file,
or cause to be filed with the Federal Trade Commission and the
Antitrust Division of the United States Department of Justice
pursuant to the Xxxx Xxxxx Xxxxxx Act ("HSR Act"), and any and
all state, federal or foreign regulatory bodies or agencies, the
notification and documentary material required in connection with
this transaction. Thereafter, Seller shall, with Purchaser's
cooperation, promptly file any additional information requested
as soon as practicable after receipt of a request for additional
information under the HSR Act or any other regulatory filing.
Seller shall coordinate and cooperate with Purchaser in
exchanging such information and providing such reasonable
assistance as may be requested in connection with such filings.
7.4 Actions of Purchaser. Purchaser will not take any action
which would result in a breach of its representations and
warranties hereunder. Furthermore, Purchaser shall cooperate
with Seller and use its best efforts to cause all of the
conditions to the obligations of Purchaser and Seller under this
Agreement to be satisfied on or prior to the Closing Date.
7.5 Deliveries by Seller. Concurrently with the execution
hereof, Seller shall deliver to Purchaser the following:
a) Bills of sale, deeds, instruments of transfer, assignment
and conveyance and other instruments in form and substance
reasonably satisfactory to Purchaser to convey, transfer and
assign to Purchaser and effectively vest in Purchaser good and
marketable title to the Purchased Assets including, without
limitation, Deeds and Certificates of Title, in proper form for
transfer, for the purpose of transferring legal title to:
(i) all the Rolling Stock;
(ii) all Real Estate parcels;
(iii) all Non-Rolling Stock Personal Property Assets.
b) In consideration for payment at Closing of the indebtedness
of Seller to CITBC and CITEF, those entities shall provide
mortgage satisfactions with respect to all real estate purchased
by Purchaser, UCC termination statements with respect to their
security interest and deliver certificates of title with respect
to all rolling stock in which they hold a security interest.
7.6 Notices. All notices, requests, demands, and other
communications hereunder shall be in writing and shall be deemed
to have been duly given when either personally served, sent by
facsimile, or mailed by certified or registered mail, return
receipt requested or by any express mail or courier service:
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a) If to the Seller:
Mr. Xxxxxxx Xxxxxxx
Chief Financial Officer
Builders Transport, Inc.
0000 Xxxx XxXxxx Xxxxxx
Xxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxxx Xxxxxxxx, Esq.
Xxxxxx & Bird
One Atlantic Center
0000 X. Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Xxxxxx X. Xxxxxxxxxx, Esq.
Holland & Knight LLP
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
b) If to Purchaser:
Xx. Xxxxxx X. Xxxxxxxxxx, Esq.
General Counsel
Xxxxxxxxx National, Inc.
0000 X. Xxxxxxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxx 00000
with a copy to:
Xxxxxx, Xxxxxx & Xxxxxxx
Two Midtown Plaza, Suite 1900
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
c) If to CITBC or CITEF
Xxxxxx X. Xxxxx, VP
The CIT Group/Business Credit, Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
with a copy to:
Xxxxxxxxxxx X Xxxxxx, Esq.
Xxxx Xxxxx X'Xxxxx, Esq.
Xxxxx, Day, Xxxxxx & Xxxxx
0000 XxxXxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
or to such other address or to such other persons as the parties
shall have last designated by written notice to the other
parties.
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7.7 Entire Agreement. This Agreement constitutes the sole
understanding of the parties with respect to the subject matter
hereof; provided, however, that this provision is not intended to
abrogate any other written agreements between the parties
executed with or after this Agreement and provided that the
provisions of this Agreement are not intended to abrogate any
undertaking of the parties hereto with respect to the Equipment
Creditors as set forth in the Offer, as clarified and explained
on the record. No amendment, modification or alteration of the
terms or provisions of this Agreement shall be binding unless the
same shall be in writing and duly executed by the parties hereto.
7.8 Parties Bound By Agreement; Successors and Assigns. The
terms, conditions and obligations of this Agreement shall inure
to the benefit of and be binding on the parties hereto and the
respective successors and assigns thereof.
7.9 Counterparts and Headings. This Agreement may be executed
in one or more counterparts, each of which shall for all purposes
be deemed to be an original and all of which shall constitute the
same instrument. The titles and headings of the Sections and
paragraphs of this Agreement are inserted for convenience only
and shall not be deemed to constitute part of this Agreement or
to affect the construction hereof.
7.10 Modification and Waiver. Any of the terms or conditions of
this Agreement may be waived in writing at any time by the party
which is entitled to the benefit thereof. No waiver of any of
the provisions of this Agreement shall be deemed to or shall
constitute a waiver of any other provision hereof (whether or not
similar).
7.11 Expenses. Except as otherwise provided herein, the Seller,
on the one hand, and the Purchaser, on the other hand, shall each
pay all costs and expenses incurred by them or on their behalf in
connection with this Agreement and the transactions contemplated
hereby, including fees and expenses of its own accountants and
counsel.
7.12 Good Faith; Further Assurances; Cooperation. Each party
shall do such things as may be reasonably requested by another
party hereto in order more effectively to consummate or to
document the transactions contemplated by this Agreement. The
parties shall cooperate fully with each other and their
respective counsel and accountant or designees in connection with
any steps required to be taken as part of their respective
obligations under this Agreement.
7.13 Governing Law. This Agreement shall be construed in
accordance with the governed by the laws of the State of Georgia.
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7.14 Further Assurances. The parties agree that they shall
execute and deliver any and all additional writings, instruments,
and other documents contemplated hereby or referred to herein and
shall take such further action as shall be reasonably required in
order to effectuate the terms and conditions of this Agreement.
7.15 Brokerage. The Purchaser and the Seller each represent and
warrant to the other that, to its knowledge, no person has any
claim for a brokerage or finder's fee or commission or similar
compensation in connection with the negotiation, execution or
consummation of this Agreement or the sale of the Business to
Purchaser. The Purchaser and the Seller agree that should any
claim be made by any person for such commissions or fees arising
from or on account of any conduct of the Purchaser or its
representatives, or the Seller or its representatives, then the
Purchaser or the Seller, respectively, will hold the other free
and harmless from any liabilities and expenses (including but not
limited to reasonable counsel fees), in connection therewith, and
will promptly pay same.
7.16 Severability. In the event any provision, paragraph or
section of this Agreement shall be adjudged invalid for any
reason, such adjudication shall not affect the enforceability of
any of the other provisions, paragraphs and sections, which shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused these presents
to be signed, sealed and delivered as of the date first set forth
above.
SELLER:
BUILDERS TRANSPORT, INC.
/s/ Xxxxxxx Xxxxxxx
--------------------------------
Xxxxxxx Xxxxxxx
Chief Financial Officer
[CORPORATE SEAL]
PURCHASER:
XXXXXXXXX NATIONAL, INC.
/s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
[CORPORATE SEAL]
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The undersigned entities, CITBC and CITEF, acknowledge their
approval of the terms and conditions of the Asset Purchase
Agreement and acknowledge the obligations of CITBC and CITEF with
respect to the provisions of Sections 1.2(b) and 7.5(b) of the
Asset Purchase Agreement.
The CIT Group/Business Credit, Inc.
/s/ Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxx X. Xxxxx
Vice President
[CORPORATE SEAL]
The CIT Group/Equipment Financing, Inc.
/s/ Xxxx Xxxxxxx
--------------------------------
Xxxx Xxxxxxx
Vice President
[CORPORATE SEAL]
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