Exhibit 2.2
FIRST AMENDMENT
TO ASSET PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT (the "Amendment")
is made effective as of January 22, 2001, by and among Xxxx Xxxxx Trucking,
Inc., a Utah corporation ("Simon"); Westway Express, Inc., an Indiana
corporation (the "Company"); WesternWay Holdings Co., a Colorado corporation,
the Company's sole shareholder ("Shareholder"); and Xxxxx X. XxXxxxxx
("XxXxxxxx").
RECITALS
The parties previously entered into that certain Agreement (the
"Agreement") dated December 15, 2000. Certain events have transpired since the
execution of the Agreement that the parties wish to reflect in writing.
TERMS
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants, representations, and warranties herein contained, and upon the
terms and conditions hereinafter set forth, the parties hereto agree as follows:
A. Amendment of Agreement. The provisions of this Amendment shall
supplement and amend the Agreement as specifically stated herein. If there is a
conflict between this Amendment and the Agreement, this Amendment shall control.
Except as stated herein, the Agreement shall continue in full force and effect.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed in the Asset Purchase Agreement.
Section 1.1 of the Agreement is deleted in its entirety and replaced
with the following:
1.1 Purchase of Specific Assets. At the Closing, the Company
shall sell to Simon and Simon shall purchase for the price set forth on
Exhibit A attached hereto (the "Purchase Price"), the assets listed on
Exhibit A (collectively, the "Transferred Assets") free and clear of
all liens, claims, encumbrances, security interests, and impairments of
title of any kind or nature ("Liens"), except for Liens to be retired
pursuant to Section 1.1(i) hereof. Simon shall deliver the Purchase
Price, by certified funds or wire transfer of immediately available
funds, as follows: (i) the amount required to retire all obligations
and remove all Liens relating to the Transferred Assets (the "Payoff
Amount") shall be paid to the respective holders, as set forth in the
Payoff Letters, as defined in Section 7.4; (ii) except as otherwise
provided herein, the balance of the Purchase Price shall be delivered
to the Company at Closing; (iii) the Purchase Price shall be reduced by
$750 for each trailer included in the Subleased Equipment and $1,200
for each tractor included in the Leased Equipment, due to certain
condition factors originally described in Section 1.4 of the Agreement
(to the extent there are fewer than 234 tractors and fewer than 264
trailers, the reduction shall be correspondingly decreased); (iv) the
amount of the useable portion of any prepaid licenses and permits on
the Transferred Assets, Leased Equipment, and Subleased Equipment as of
the Closing being added to the Purchase Price and delivered to the
Company at the Closing (with the portion of any prepaid license or
permit later determined to be invalidly transferred being refunded by
the Company to Simon and subject to set-off if not refunded); and (v)
the Deferred Purchase Price shall be retained by Simon and delivered in
accordance with Section 1.2. The parties agree that the Purchase Price
and all other costs that are capable of being capitalized shall be
allocated among the Transferred Assets as set forth on IRS Form 8594
attached hereto as Exhibit B.
Section 1.2 of the Agreement is deleted in its entirety and replaced
with the following:
1.2 Recruitment Assistance Fee Payment. Simon shall pay
to the Company for its services in assisting with Simon's hiring of
the Company's drivers the following amounts (the "Recruitment
Assistance Fee Payment"):
1.2.1 $207,500 plus $2,500 multiplied by the number
of employees drivers that qualify for and accept employment
with Simon on or before Closing shall be delivered at the
Closing (such amount being set forth under Item 5 on Exhibit
A);
1.2.2 Within 35 days after the Closing the following
shall be delivered: (a) $2,500 multiplied by the number of
employees drivers that qualify for and accept employment with
Simon after the Closing and on or before the 30th day after
the Closing and (b) $2,500 multiplied by the number of
independent contractor drivers that qualify for and accept an
independent contractor contract with Simon before the Closing
through the 30th day after the Closing;
1.2.3 On the three month anniversary of the date of
this Agreement, $250,000 shall be delivered to the Company on
such date; and
1.2.4 On the six, nine, and the day before the
twelve-month anniversaries of the date of this Agreement,
$250,000 shall be delivered to the Company on each such date.
Sections 1.2.2, 1.2.3, and 1.2.4 together being referred to as
the "Deferred Purchase Price."
Section 1.4 of the Agreement is deleted in its entirety and replaced
with the following:
1.4 Condition of Subleased Equipment. With respect to trailers
included in the Subleased Equipment, any damage to such trailers shall be
photographed by Simon and deviations from turn-in condition recorded in a
written exception report. Simon shall return all Subleased Equipment to the
location specified in the underlying lease at the end of the underlying lease
relating to the Subleased Equipment
(i) in substantially the same condition as when received, taking into account
the condition of the trailers as set forth in the photographs and written
exception report, reasonable wear and tear excepted, provided further that
such subleased equipment shall be returned in Department of
Transportation roadworthy condition, or (ii) promptly remit to the Company the
amount necessary to bring such trailers into the required condition. On the
six-month anniversary of the Closing, Simon shall submit to the Company
maintenance records with respect to each trailer included in the Subleased
Equipment. In the event subleases with respect to the Subleased Equipment are
not converted into a new lease, Simon shall submit to the Company maintenance
records with respect to each trailer included in the Subleased Equipment upon
expiration of the Company's underlying lease with respect to the Subleased
Equipment. Excluding routine maintenance, if the maintenance records for the
Subleased Equipment fail to reflect an average repair cost of at least $750 per
trailer in labor, parts, and supplies during the six month period following
the Closing, Simon shall pay to the Company the difference between $750 and
the average repair costs times the number of trailers included in the Subleased
Equipment, on the six month anniversary of the Closing. Except as set forth
herein, Simon acknowledges that such Subleased Equipment is used equipment and
is leased AS IS where is or with no warranty either expressed or implied as to
the condition or fitness of the Subleased Equipment for its intended use.
Section 1.8 of the Agreement is deleted in its entirety and replaced
with the following:
1.8 Risk of Loss. Subject to Section 9.1 and notwithstanding
Section 1.3, 1.4, or 1.5, the Company shall bear the risk of loss,
whether by wreck, theft, fire, loss, or out-of-service generally, and
repair to the Transferred Assets, Leased Equipment and Subleased
Equipment prior to the Closing, including the cost of repair for
material damage, restoration to operating condition, or locating lost
equipment where such material damage, loss, or cessation of operation
occurs prior to the Closing; provided however, in lieu of repair,
replacement, or restoration, at Simon's option it may (i) require the
Company to, and the Company shall, assign to Simon proceeds of any
insurance claim which are deemed adequate by Simon to repair, replace,
or restore, and Simon shall accept the equipment, (ii) in the case of
Transferred Assets, reject, and the Company shall retain the equipment
together with any insurance claims and reduce the Purchase Price by the
amount of the Purchase Price allocable to such Transferred Assets, or
(iii) in the case of Leased Equipment or Subleased Equipment, reject,
and the Company shall retain the equipment and such equipment shall not
be the subject of any lease or sublease. If the Company retains such
equipment, the Company will indemnify, defend, and hold Simon harmless
from any lease obligations with respect to such equipment as provided
in Section 10.2 hereof. Subject to Section 9.1, Simon shall bear the
risk of loss to the Transferred Assets, Subleased Equipment, and Leased
Equipment after the Closing.
Section 1.9 of the Agreement is deleted in its entirety and replaced
with the following:
1.9 Albuquerque Lease. Simon shall lease the property owned by
the Company in Albuquerque, New Mexico through June 30, 2001, at a
monthly rental of $12,500, with Simon to pay utilities, subject to
Section 9.14, taxes, insurance, and upkeep arising in the ordinary
course of business, pursuant to the lease attached as Exhibit C (the
"Lease"). The Lease shall be an aboveground lease only and provide
Simon with a right of first refusal on any sale of the subject property
during the term, or prior to the expiration, of the Lease.
Section 2.13.3 of the Agreement is deleted in its entirety and replaced
with the following:
2.13.3 The Disclosure Schedule identifies each of the
Company's employee benefit plans, and all retirement, profit
sharing, defined contribution, and defined benefit plans, as
well as any severance, vacation pay, health and welfare,
workers' compensation, employment, or other agreements or
obligations (oral or written) relating to current, former, or
retired employees of the Company (collectively, "Plans").
Except as set forth on the Disclosure Schedule, no Plan is a
multi-employer or a defined benefit plan, and neither the
Company nor any predecessor or Affiliate (which for all
purposes in this Agreement means any person or entity
controlling, controlled by, or under common control with
another person or entity) of the Company or a predecessor has
ever been a party to or sponsored a multi-employer or defined
benefit plan. Except as set forth on the Disclosure Schedule,
the Company is not a member of a group of businesses under
common control or businesses constituting a single employer (a
"Group"), except a Group in which no member has been a party
to a defined benefit plan, nor, except as set forth on the
Disclosure Schedule, does the Company have any current or
projected liability with respect to (i) post-employment or
post-retirement pension benefits for former or retired
employees of the Company, affiliated entities, or a member of
a Group or (ii) any Plans.
Section 3.2 of the Agreement is deleted in its entirety and replaced
with the following:
3.2 Employee Benefits. The Disclosure Schedule identifies each
of the Company's Plans. Except as set forth on the Disclosure Schedule,
no Plan is a multi-employer or a defined benefit plan, and neither the
Company nor any predecessor or Affiliate of the Company has ever been a
party to or sponsored a multi-employer or defined benefit plan. Except
as set forth on the Disclosure Schedule, the Company is not a member of
a Group, except a Group in which no member has been a party to a
defined benefit plan, nor, except as set forth on the Disclosure
Schedule, does the Company have any current or projected liability with
respect to post-employment or post-retirement pension benefits for
former or retired employees of the Company, affiliated entities, or a
member of a Group.
Section 3.3 of the Agreement is deleted in its entirety and replaced
with the following:
3.3 Environment, Health, and Safety. With regard to its leased
or owned premises which Simon will assume or lease, the Company has
complied with all Environmental Laws, and no action, suit, proceeding,
hearing, investigation, charge, complaint, claim, demand, or notice has
been filed or commenced against it alleging any failure so to comply
nor does XxXxxxxx have knowledge of any factual basis therefor, except
as provided in the Phase I Environmental Inspection attached as Exhibit
M. The Company has obtained and been in compliance with all of the
terms and conditions of all Permits required under all Environmental
Laws.
Section 5.1 of the Agreement is deleted in its entirety and replaced
with the following:
5.1 Assigned Equipment Leases. Subject to adjustment under
Section 1.8, at the Closing Simon shall enter into a new lease with
Mercedes-Benz Credit Corporation for 247 Freightliner tractors, or such
lesser amount that equals the number of Company drivers that qualify
for and accept employment with Simon, less fifty (50) (the "Leased
Equipment") The lease shall be on terms acceptable to Simon and
Mercedes-Benz Credit Corporation ("MBCC"); provided, MBCC will not hold
Simon responsible for defaults, penalties, amounts, or late fees
arising on or prior to Closing under the existing leases between the
Company and MBCC. The parties acknowledge that it may not be until
post-Closing that the number of tractors to be included in the Leased
Equipment is determined, when the final Company driver count is
determined. If a tractor under lease with MBCC is excluded from the
Leased Equipment, the Company shall retain such tractor(s), the lease
payment shall be reduced accordingly, and amounts mistakenly paid to
MBCC shall be subject to set-off.. Simon shall be responsible for
fulfilling all turn in requirements.
Section 5.2 of the Agreement is deleted in its entirety and replaced
with the following:
5.2 Commerce City Leases. At the Closing, Simon shall assume
the Commerce City real estate leases (the "Commerce City Leases"),
subject to leases providing for continued subtenants on substantially
the same terms until December 2001, such that the net rental to be paid
by Simon (including the amount for leasehold improvements) is
approximately $15,000, pursuant to the Commerce City Real Estate
Assignment and Assumption Agreement attached as Exhibit G or such other
agreement as is acceptable to Simon, the Company, and the landlord. Of
this amount Simon shall pay to Company the monthly amount of $5,250 for
leasehold improvements, which shall be due and payable at the same time
that monthly rental payments are due under the Commerce City Leases.
Anything to the contrary notwithstanding, the Xxxxx Development Company
Lease shall be an aboveground lease. Simon shall not be responsible for
any underground storage tank removal or environmental remediation, and
Simon shall only be responsible for environmental remediation it
directly caused. Any rental payments made by Simon, less rental income
received, for January 2002 on the Riss property shall be eligible for
set-off hereunder.
Section 5.6 of the Agreement is deleted in its entirety and replaced
with the following:
5.6 Liabilities Not Assumed. Except as provided in Sections
5.1, 5.2, 5.3, 5.4, and 5.5, Simon is not assuming, and shall not be
deemed to have assumed, any liabilities or obligations of the Company,
Shareholder, or XxXxxxxx of any kind or nature whatsoever. Without
limiting the generality of the foregoing, it is hereby agreed that
Simon is not assuming, and shall not be deemed to have assumed, any
liability and shall not have any obligation for or with respect to any
liability or obligation of or relating to the Company, Shareholder, or
XxXxxxxx (i) for any prepayment penalty, late fee, interest, or other
amount arising before or as of the date of Closing on the Transferred
Assets; (ii) any payment, penalty, late fee, interest, or other amount
arising before or as of the date of Closing on the Assigned Equipment
Leases, Assigned Real Estate Leases, or Subleased Equipment; (iii) for
wages, bonuses, accrued vacation or sick leave, or other payments due
for any reason to the Company's employees for periods during which they
were employees of the Company; (iv) for any sales, use, excise, income,
franchise, or other taxes, or any legal, accounting, brokerage, finders
fees, or other expenses of whatsoever kind or nature incurred by the
Company, XxXxxxxx, or the Shareholder, except for sales or use tax or
taxes arising from the sale of assets as set forth in Section 1.6
hereof; (v) arising out of any action, suit, claim, or proceeding based
upon, any event occurring prior to the Closing; or (vi) claims for
withdrawal liability, unpaid contributions, unpaid wages and benefits,
health or workers' compensation amounts, or post-employment or
post-retirement benefits. Other than the limited assumption of the
Assigned Equipment Leases and the Assigned Real Estate Leases, and the
sublease of the Subleased Equipment, the Company and Shareholder shall
indemnify, defend, and hold harmless Simon against all such liabilities
of the Company, XxXxxxxx, and Shareholder as provided in Section 10.2.
XxXxxxxx shall indemnify, defend, and hold harmless Simon only as
provided in Section 10.3. All employees of the Company who may be
employed by Simon on or after the Closing shall be new employees of
Simon and any prior employment by the Company of such employees shall
not affect entitlement to, or the amount of, salary or other cash
compensation, current or deferred, which Xxxxx xxx make available to
its employees, except as otherwise required by law, as determined by
Simon.
Section 5.9 of the Agreement is deleted in its entirety and replaced
with the following:
5.9 Sublease of Trailers. At the Closing, Simon hereby
subleases from the Company all 278 of the refrigerated trailers leased
by the Company from Provident and TransLease, as such trailers are
listed on attached Exhibit F, subject to adjustment under Section 1.4
and Section 1.8 (the "Subleased Equipment"). Simon shall be presented
at or prior to Closing the lessor estoppel letters in the form of
Exhibit E attached hereto with respect to the Subleased Equipment.
Simon's obligations under the sublease shall be on the same terms,
conditions and rental as the underlying lease, excluding late fees,
penalties, and other amounts (where the factual basis underlying such
amount occurred pre-Closing) for the balance of the underlying lease or
until a new lease with respect to such trailers is executed. The
Company, as sublessor, except as provided below, shall be entitled to
all rights and protections afforded under the underlying leases to the
Lessor thereunder. Simon shall have no obligation to satisfy any
defaults, penalties, amounts arising pre-Closing, buy-back
requirements, trade-in requirements, TRAC payments, or late fees with
respect to the Subleased Equipment, except rental payments and late
fees arising after the Closing. The condition requirements regarding
the Subleased Equipment upon return of such Subleased Equipment is as
provided in Section 1.4. The Company shall tender at Closing, and
Simon, unless a new lease with respect to such trailers is executed and
provides otherwise, shall return prior to expiration of the lease, the
trailers in the condition set forth in Section 1.4, as adjusted
thereunder. Simon, at its option and as agent of the Company, shall
tender all lease payments directly to the Lessors. Simon will promptly
provide copies of all notices, if any, regarding the Subleased
Equipment to the Company. The Company shall be named as an additional
insured on all of Simon's insurance coverage regarding such trailers
until such time as a new lease is executed.
Section 8.1 of the Agreement is deleted in its entirety and replaced
with the following:
8.1 Time. The transactions contemplated by this Agreement
shall be consummated at a Closing to be held at the offices of Xxxxx
& Xxxxxx in Denver, Colorado and be effective at 12:00 a.m. on
January 22, 2001.
Section 8.3 of the Agreement is deleted in its entirety and replaced
with the following:
8.3 At the Closing, Simon shall deliver to the Company the
Cash Purchase Price, together with a payment of prorated rental amounts
for the month of Closing for all assumed Real Estate Leases, together
with Company deposits, as set forth in paragraph 5. Rental payments
shall be prorated on the basis of the number of days in the month
before the Closing and on and after the date of Closing. The Estoppel
Letters, attached as Exhibit E will provide that the Company is not
liable for rental amounts accruing on and after the closing.
Section 9.8 of the Agreement is deleted in its entirety and replaced
with the following:
9.8 Inventory Count and Miscellaneous Equipment Verification.
Prior to the Closing, Simon and the Company shall conduct an inspection
and physical count, if necessary, of the assets described on Exhibit A,
other than Qualcomm units, to see if such assets are usable to Simon
and agree on a price for such assets. Before or after Closing, Simon
and the Company shall conduct an inspection and physical count of the
Qualcomm units described on Exhibit A to verify such units are
functioning properly and have firmware level 15.58 and above on 15 Mgz
units and 14.09 or 14.10 on 12.5 Mgz units or are upgraded prior to
Closing, at the Company's cost, to include such firmware, along with
all necessary wiring, harnesses, and accessories. In the event any
Qualcomm unit does not meet the required condition, Simon shall reduce
the purchase price to be paid at Closing by $1,200 unit and deliver
$1,200/unit to the Company within ten days of when the Qualcomm unit is
presented in the required condition. Assets that are transferred
hereunder shall be considered Transferred Assets.
A new Section 9.11 is added to the Agreement to provide as follows:
Section 9.11 Return of Certain Trailers; Rental of Trailers. The
Company covenants and agrees that until the Closing it will use its best efforts
to return all trailers leased by the Company with 42 inch king pins to the
Commerce City terminal of the Company at the Company's cost. After Closing,
Simon covenants and agrees to use its best efforts to return all remaining such
trailers at Simon's cost to the Commerce City terminal or the Salt Lake City
Wabash dealer, at the Company's option. Any such trailers that Simon uses to
transport freight shall be rented from the Company on a weekly basis, at the
monthly rental payable by the Company on its leases for such trailers and
including the Company's license fee for such trailers both pro-rated on a weekly
basis based upon a four week month. Simon shall remit to the Company any sums
owing hereunder when the first Deferred Purchase Price Payment is made under
Section 1.2.3. Simon shall provide the Company such documentation as may
reasonably be requested to verify the use of such trailers to transport freight.
Simon will use its best efforts to obtain an unrelated third party sublessor for
up to 100 of such trailers.
A new Section 9.12 is added to the Agreement to provide as follows:
Section 9.12 Employment of Xxx Xxxx. Xxxxx covenants and agrees to
employ Xxx Xxxx for at least 90 days following Closing at a salary rate of not
less than $85,000/annually or, at Simon's option, pay Xx. Xxxx not less than
$21,250, either by lump sum or over a period not to exceed 90 days from the
Closing.
A new Section 9.13 is added to the Agreement to provide as follows:
Section 9.13 Storage Tanks. The Company covenants and agrees that at or
prior to Closing it will have emptied any underground storage tanks located on
the Commerce City and Albuquerque properties, performed, at its expense, all
suggested actions with respect to the new oil aboveground tank located inside
the maintenance building on the Commerce City property, as described in Exhibit
N attached hereto, and removed the used oil aboveground tank located outside the
maintenance building on the Commerce City property.
A new Section 9.14 is added to the Agreement to provide as follows:
Section 9.14 Temporary Use of Albuquerque Office Space. From and after
the Closing, for a period of up to two months, the Company shall have the right
to use without any Rental Payment that portion of the large office building at
the Albuquerque terminal as is necessary for finalizing the Company's financial
obligations. The Company shall promptly pay any utilities with respect to the
large office building or remit to Simon any utilities paid by Simon on behalf of
the Company with respect to the large office building.
A new Section 9.15 is added to the Agreement to provide as follows:
Section 9.15. Driver Deposits. The Company covenants and agrees
that it will use its best efforts to reconcile and pay all employee and
independent contractor deposits to the appropriate driver within 30 days of
Closing.
Section 10.2 of the Agreement is deleted in its entirety and replaced
with the following:
10.2 Indemnification by the Company and Shareholder. The
Company and Shareholder, jointly and severally, shall indemnify,
defend, and hold harmless Simon, its successors, assigns, officers,
directors, employees, agents, and Affiliates from and against any and
all claims, causes of action, suits, judgments, taxes, losses, damages,
deficiencies, obligations, fines, costs, and expenses (including,
without limitation, interest, penalties, and reasonable fees and costs
of attorneys and other experts) arising out of or otherwise in respect
of any claim, action, suit, proceeding or investigation, whether civil,
administrative, investigative, or otherwise with regard to: (i) any
misrepresentation, inaccuracy in, or breach of any representation,
warranty, covenant, or agreement of the Company or Shareholder
contained in this agreement or any contract executed in connection
herewith; (ii) any liability of the Company or Shareholder whatsoever,
including any third-party claims, arising from the act or omission of
the Company or Shareholder, either prior to or after the Closing; (iii)
any obligations relating to tractors included in the Assigned Equipment
Leases or trailers included in the Subleased Equipment that are
retained by the Company; (iv) any and all lease obligations arising or
relating to the Subleased Equipment other than as set forth in Section
10.4(iv), 5.9, 1.8 and 1.4; (v) without in an way limiting the scope of
Section 2.14, any liability of the Company or any predecessor or
Affiliate for (a) the handling or disposal of any substance, (b)
arranging for the disposal of any substance, (c) exposing any employee
or other individual to any substance or condition, or (d) owning or
operating any property or facility, in any manner that could form the
basis for any present or future action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand for damage to any
site, location, or body of water (surface or subsurface), for any
illness of or personal injury to any employee or other individual, or
for any other reason, under any Environmental Law; and (vii) any cargo
damage, overcharge, or other claims made or threatened against Simon by
customers of the Company for shipments dispatched prior to Closing.
Section 10.3 of the Agreement is deleted in its entirety and replaced
with the following:
10.3 Indemnification by XxXxxxxx. XxXxxxxx shall indemnify,
defend, and hold harmless Simon, its successors, assigns, officers,
directors, employees, agents, and Affiliates from and against any and
all claims, causes of action, suits, judgments, taxes, losses, damages,
deficiencies, obligations, fines, costs, and expenses (including,
without limitation, interest, penalties, and reasonable fees and costs
of attorneys and other experts) arising out of or otherwise in respect
of any claim, action, suit, proceeding, or investigation, whether
civil, administrative, investigative, or otherwise with regard to: (i)
any misrepresentation, inaccuracy in, or breach of any representation,
warranty, covenant, or agreement of XxXxxxxx contained in this
Agreement; (ii) without in any way limiting the scope of Section 3.3,
any liability of the Company or any predecessor or Affiliate that
XxXxxxxx had knowledge of (other than off-site disposal of hydrocarbons
and other materials and de minimis spills of hydrocarbons, both as
described on the Disclosure Schedule and other than the contamination
of the Commerce City properties described in Exhibit M) for (a) the
handling or disposal of any substance, (b) arranging for the disposal
of any substance, (c) exposing any employee or other individual to any
substance or condition, or (d) owning or operating any property or
facility, in any manner that could form the basis for any present or
future action, suit, proceeding, hearing, investigation, charge,
complaint, claim, or demand for damage to any site, location, or body
of water (surface or subsurface), for any illness of or personal injury
to any employee or other individual, or for any other reason under any
Environmental Law.
Section 10.4 of the Agreement is deleted in its entirety and replaced
with the following:
10.4 Indemnification by Simon. Simon shall indemnify, defend,
and hold harmless the Company, XxXxxxxx, and Shareholder, their heirs,
successors, assigns, officers, directors, employees, agents, and
Affiliates from and against any and all claims, causes of action,
suits, judgments, taxes, losses, damages, deficiencies, obligations,
fines, costs, and expenses (including, without limitation, interest,
penalties, and reasonable fees, and costs of attorneys and other
experts) arising out of or otherwise in respect of any claim, action,
suit, proceeding, or investigation, whether civil, administrative,
investigative, or otherwise with regard to: (i) any misrepresentation,
inaccuracy in, or breach of any representation, warranty, covenant, or
agreement of Simon contained in this Agreement or any contract executed
in connection herewith; (ii) any third-party claims relating to the
ownership or operation of the Transferred Assets, Subleased Equipment,
or Leased Equipment by Simon, the factual basis of which transaction or
claim (other than the lease agreements themselves) arose subsequent to
the Closing; (iii) any and all lease obligations arising or relating to
the Assigned Equipment Leases (other than as set forth in Section
10.2(iii)), or the Assigned Real Estate Leases, the factual basis of
which transaction or claim arose subsequent to the Closing; (iv) any
and all obligations arising as a result of the Sublease of Trailers as
provided in Section 5.9, as modified by Section 1.4 and Section 1.8;
(v) any sales or use taxes arising from the purchases under this
Agreement; (vi) leasing or trust arrangements under Section 9.7; (vii)
Simon's failure to re-license the tractors and trailers included in the
Transferred Assets; and (viii) death, injury, or claim to or by any
person or property arising from or occurring in connection with the
operation, maintenance, ownership, or use of the Transferred Assets,
Subleased Equipment, or Leased Equipment by Simon, including where such
death, injury, or claim is based upon expressed or implied warranties,
and notwithstanding the provisions of Sections 1.3, 1.4, and 1.5, or
Simon's use of the Company's name or operating authority, or by Simon's
assigns.
B. Amendment to Exhibits and Addition of Exhibits. Certain
amendments are made to the Exhibits attached to the Agreement and additional
Exhibits are inserted as attached hereto.
* * * * * * * * * * * * * * * * *
Signature Page to the First Amendment to the Agreement
Among Xxxx Xxxxx Trucking, Inc.,
Westway Express, Inc.,
WesternWay Holdings Co., and
Xxxxx X. XxXxxxxx
IN WITNESS WHEREOF, the parties have executed this Amendment of the
day, month, and year first written above.
SELLER: BUYER:
WESTWAY EXPRESS, INC., XXXX XXXXX TRUCKING, INC.,
an Indiana corporation a Utah corporation
By: /s/ Xxxxx X. XxXxxxxx By: /s/ Xxx Xxxxxxxx
Xxxxx X. XxXxxxxx, Chairman Xxx Xxxxxxxx, President
SHAREHOLDER:
WESTERNWAY HOLDINGS CO.
By: /s/ Xxxxx X. XxXxxxxx
Xxxxx X. XxXxxxxx, Chairman
/s/ Xxxxx X. XxXxxxxx
XXXXX X. XxXXXXXX
Individually, as to Sections 1.7, 3, 5.5, 5.6, 6, 7.1, 7.6, 8.2.4, 9, 10, 11,
and 12
EXHIBIT INDEX
------------------------------------------------------------ ---------------------------------------------------------
Exhibit Description
------------------------------------------------------------ ---------------------------------------------------------
------------------------------------------------------------ ---------------------------------------------------------
A Transferred Assets
------------------------------------------------------------ ---------------------------------------------------------
------------------------------------------------------------ ---------------------------------------------------------
C Albuquerque Lease
------------------------------------------------------------ ---------------------------------------------------------
------------------------------------------------------------ ---------------------------------------------------------
D Disclosure Schedule
------------------------------------------------------------ ---------------------------------------------------------
------------------------------------------------------------ ---------------------------------------------------------
F Subleased Equipment List
------------------------------------------------------------ ---------------------------------------------------------
------------------------------------------------------------ ---------------------------------------------------------
J-1 Closing Certificate of the Company
------------------------------------------------------------ ---------------------------------------------------------
------------------------------------------------------------ ---------------------------------------------------------
J-2 Closing Certificate of the Shareholder
------------------------------------------------------------ ---------------------------------------------------------
------------------------------------------------------------ ---------------------------------------------------------
L Form of Xxxx of Sale
------------------------------------------------------------ ---------------------------------------------------------
------------------------------------------------------------ ---------------------------------------------------------
M Phase I Environmental Inspection
------------------------------------------------------------ ---------------------------------------------------------
------------------------------------------------------------ ---------------------------------------------------------
N Inspection Letter
------------------------------------------------------------ ---------------------------------------------------------
