AMENDED AND RESTATED ASSET PURCHASE AGREEMENT
THIS AMENDED AND RESTATED ASSET PURCHASE AGREEMENT (this "Agreement")
is made and entered into as of April 18, 2002, by and among Central Refrigerated
Service, Inc., a Nebraska corporation ("Buyer"), and Simon Transportation
Services Inc., a Nevada corporation ("SIMN"), and its subsidiaries, Xxxx Xxxxx
Trucking, Inc., a Utah corporation ("DSTI"), and Simon Terminal, LLC, an Arizona
limited liability company ("Terminal"; SIMN, DSTI, and Terminal are sometimes
referred to herein as the "Debtors" or "Sellers").
RECITALS
WHEREAS, on March 25, 2002, the parties submitted to the Bankruptcy
Court (as defined below) that certain Asset Purchase Agreement (the "Original
Asset Purchase Agreement");
WHEREAS, the parties wish to amend and restate the Original Asset
Purchase Agreement to reflect in writing certain amendments thereto;
WHEREAS, Sellers are engaged in the business of owning and operating
tractors, trailers, and terminal facilities for use in the interstate
transportation of freight (the "Business");
WHEREAS, Sellers are debtors and debtors-in-possession in a jointly
administered chapter 11 case, styled In re: SIMON TRANSPORTATION SERVICES
INC., et al, Case Nos. 02-22906 GEC, 02-22907 GEC, and 02-24874 GEC Jointly
Administered (collectively, the "Case"), pending before the United States
Bankruptcy Court for the District of Utah, Central Division (the "Bankruptcy
Court");
WHEREAS, Sellers wish to sell to Buyer and Buyer wishes to purchase
from Sellers certain assets and to assume from Sellers certain liabilities
related to the operation of the Business, pursuant to, inter alia, Sections 363
and 365 of the Bankruptcy Code (as hereinafter defined) and the applicable
Federal Rules of Bankruptcy Procedure; and
WHEREAS, Buyer may designate certain of its Affiliates (as hereinafter
defined) to take title to certain of the Acquired Assets (as hereinafter
defined) at the Closing (as hereinafter defined).
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and subject to the terms and conditions hereof, the parties,
intending to be legally bound, hereby agree as follows:
ARTICLE I
Definitions
1.1 Defined Terms. For purposes of this Agreement, unless otherwise
provided, the following terms, when capitalized, shall have the meanings
ascribed to them below:
"Adequate Assurance" shall mean the method(s) by which Buyer may
demonstrate its ability to perform and discharge its obligations under the
Assumed Assets from and after the Closing in order to effectuate, pursuant to
Section 365 of the Bankruptcy Code, the assumption by Sellers and assignment to
Buyer of the Assumed Assets assigned to Buyer under the terms of the Sale Order.
"Affiliate" shall have the meaning set forth in (a) Rule 12b-2 of
the General Rules and Regulations of the Securities Exchange Act of 1934, as
amended. In addition, for purposes of Section 2.1(l), the term Affiliate
shall be deemed to include Xxxxx and Xxxxxx Xxxxx, the Xxxxx and Xxxxxx Xxxxx
Family Trust, the Moyes Children's Limited Partnership, Swift Transportation
Co., Inc., DST Leasing, LLC, Interstate Equipment Leasing, Inc., SME Steel
Contractors, Inc., SME Industries Inc., Central Freight Lines, Inc., Xxxx X.
Xxxxxxx, and Xxxxxxx Law Firm, P.C., L.L.O.
"Agreement" shall mean this Amended and Restated Asset Purchase
Agreement (together with all schedules and exhibits referenced herein).
"Assumed Assets" shall mean the Assumed Contracts and the Assumed
Leases.
"Assumed Leases" shall mean the Tractor Leases, Trailer Leases, IEL
Leases, and Miscellaneous Leases.
"Bankruptcy Code" shall mean title 11 of the United States Code, as
amended from time-to-time.
"Benefit Plans" shall mean all contracts, plans, arrangements,
policies, and understandings providing for any compensation or benefit other
than base wages or salaries that are maintained by Sellers or affect their
employees or independent contractors, regardless of whether defined as an
"employee benefit plan" under ERISA or subject to any provision of ERISA,
including, without limitation: all pension, profit-sharing, retirement, thrift,
401(K), ESOP, and other similar plans and arrangements (defined benefit and
defined contribution); all health and welfare, disability, insurance (including
self-insurance), workers' compensation, supplemental unemployment, severance,
vacation, and similar plans and arrangements; and all bonus, stock option,
incentive compensation, stock appreciation rights, phantom stock, overtime
guaranty, employment contract, employee handbook, and other similar plans or
arrangements.
"Bid Procedures Order" shall mean an Order of the Bankruptcy Court, in
form and substance reasonably satisfactory to Buyer, as more particularly
described in Section 5.12(a) of this Agreement.
"Business Day" shall mean any day other than a Saturday, Sunday or a
legal holiday on which banking institutions in the State of Utah are not
required to open.
"Buyer" shall mean Central Refrigerated Service, Inc., a Nebraska
corporation.
"Carve Outs" shall mean the Chapter 7 Carve Out and the CitiCapital
Carve Out.
"Chapter 7 Carve Out" shall mean the Chapter 7 Carve Out, as defined in
the Cash Collateral Agreement
"CitiCapital" shall mean CitiCapital Business Credit, a division of
CitiCapital Commercial Corporation, formerly known as Associates Commercial
Corporation, and CitiCapital Commercial Leasing Corporation, formerly known as
Associates Leasing, Inc.
"CitiCapital Carve Out" shall mean the $150,000 carve out to fund
payments to CitiCapital for fees, costs, and expenses, including attorneys'
fees, incurred in connection with this Agreement, the Cash Collateral
Stipulation, the CitiCapital Credit Agreement, and the Equipment Indebtedness.
"CitiCapital Credit Agreement" shall mean that certain Transportation
Accounts Financing and Security Agreement dated April 25, 2001, and all
documents relating thereto, between CitiCapital and DSTI.
"Code" shall mean the Internal Revenue Code of 1986, as amended, or any
successor federal tax Law, and the Treasury Regulations promulgated thereunder.
"Cure Amount" or "Cure Amounts" shall mean the amount(s) payable on
account of defaults in order to effectuate, pursuant to Section 365 of the
Bankruptcy Code, the assumption by Sellers and assignment to Buyer of the
Assumed Assets assigned to Buyer under the terms of the Order.
"DIP Credit Agreement" shall mean that certain Debtor-In-Possession
Credit Agreement dated February 26, 2002 between SIMN, DSTI, and Xxxxx Xxxxx.
"Debtors" shall mean SIMN, DSTI, and Terminal.
"DSTI" shall mean Xxxx Xxxxx Trucking, Inc., a Utah corporation.
"Eligible Accounts" shall have the definition used in the CitiCapital
Credit Agreement.
"Excluded Records" shall mean: (a) all tax records of Sellers, (b) all
minute books of Sellers, and (c) all written materials that Sellers are required
by Law to retain; provided, however, that Buyer may request copies of any such
Excluded Records and the copies shall be Acquired Assets.
"GAAP" shall mean United States generally accepted accounting
principles as in effect from time to time.
"Governmental Entity" shall mean any (a) federal, state, local,
municipal, foreign, or other government; (b) governmental or quasi-governmental
authority of any nature (including any governmental agency, branch, department,
official, or entity and any court or other tribunal); or (c) body exercising, or
entitled to exercise any administrative, executive, judicial, legislative,
police, regulatory, or taxing authority or power of any nature, including any
tribunal.
"Judgment" shall mean any judgment, order, writ, injunction, decree,
award, or settlement of any Proceeding.
"Law" means any federal, state, local, or foreign statute, law,
ordinance, regulation, rule, code, order, principle of common law, judgment
enacted, promulgated, issued, enforced, or entered by any Governmental Entity,
or other requirement or rule of law.
"Liabilities" shall mean, as to any Person, all debts, adverse claims,
liabilities, commitments, responsibilities, and obligations of any kind or
nature whatsoever, direct, indirect, absolute or contingent, of such Person,
whether accrued, vested, or otherwise, whether known or unknown and whether or
not actually reflected, or required to be reflected, in such Person's balance
sheets or other books and records.
"Lien" shall mean any claim, pledge, option, charge, hypothecation,
easement, security interest, right-of-way, encroachment, mortgage, deed of
trust, or other encumbrance.
"Material Adverse Effect" or "Material Adverse Change" shall mean with
respect to Sellers or the Acquired Assets any change, circumstance, event, or
effect that, individually or in the aggregate with all other changes,
circumstances, events, and effects, is materially adverse to or which could be
reasonably expected to be materially adverse to (a) the Acquired Assets, (b) the
Assumed Liabilities, (c) the results of operations or financial condition of the
Business, or (d) the right or ability of Sellers to consummate any of the
transactions contemplated by this Agreement.
"Order" shall mean any judgment, order, injunction, writ, ruling,
decree, stipulation, or award of any Governmental Entity or private arbitration
tribunal.
"Person" shall mean an individual, a partnership, a joint venture, a
corporation, a business trust, a limited liability company, a trust, an
unincorporated organization, a joint stock company, a labor union, an estate, a
Governmental Entity, or any other entity.
"Procedures Motion" shall mean the motion or motions of Sellers, in
form and substance reasonably acceptable to Buyer, seeking approval and entry of
the Bid Procedures Order.
"Proceeding" shall mean any action, arbitration, audit, hearing,
investigation, litigation, or suit (whether civil, criminal, judicial,
administrative, investigative, or informal) commenced, brought, conducted, or
heard by or before, or otherwise involving, any Governmental Entity or
arbitrator.
"Rejected Equipment" shall mean any tractors and trailers currently
leased by Sellers, which have not been re-possessed, and which are not included
in the Assumed Leases.
"Representative" shall mean, with respect to any Person, such Person's
officers, directors, employees, agents, and representatives (including any
investment banker, financial advisor, accountant, legal counsel, agent,
representative, or expert retained by or acting on behalf of such Person or its
Affiliates).
"Sale Hearing" shall mean the hearing scheduled and to be conducted by
the Bankruptcy Court to consider approval and entry of the Sale Order.
"Sale Motion" shall mean the motion or motions of Sellers, in form and
substance reasonably acceptable to Buyer, seeking approval and entry of the Sale
Order.
"Sale Order" shall mean an Order of the Bankruptcy Court, in form and
substance satisfactory to Sellers and Buyer, as more particularly described in
Section 5.12(b) of this Agreement.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Securities Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
"Sellers" shall mean SIMN, DSTI, and Terminal.
"Sellers' Public Reports" shall mean all forms, reports, schedules,
statements, and documents required to be filed by Sellers with the SEC since
October 1, 1999.
"SIMN" shall mean Simon Transportation Services Inc., a Nevada
corporation.
"Tax" or "Taxes" shall mean any federal, state, county, local, foreign,
and other income, profits, gains, net worth, sales and use, ad valorem, gross
receipts, business and occupation, license, estimated, stamp, custom duties,
occupation, property (real or personal), franchise, capital stock, license,
excise, value added, payroll, employees, income withholding, social security,
unemployment or other tax, imposition, duty, or similar levy by any Governmental
Entity, and any penalty, addition to, or interest on the foregoing.
"Terminal" shall mean Simon Terminal, LLC, an Arizona limited liability
company.
"Transfer Tax" or "Transfer Taxes" shall mean any sales, use, transfer,
conveyance, documentary transfer, recording, or other similar Tax, fee, or
charge imposed upon the sale, transfer, or assignment of property or any
interest therein or the recording thereof, but such term shall not include any
tax on, based upon or measured by, the net income, gains or profits from such
sale, transfer, or assignment of the property or any interest therein.
"Unbilled Accounts" shall have the definition used in the CitiCapital
Credit Agreement.
"WARN Act" shall mean the Worker Adjustment and Retraining Notification
Act of 1988, as amended, any state or local Law of similar purpose, and any
successor Law thereto.
1.2 Other Defined Terms. The following additional terms shall
have the meanings defined for such terms in the Sections set forth below:
Term Section
Acquired Assets 2.1
Adjustment Assets 3.4(b)
Allocation 3.5
Assumed Contracts 2.1(g)
Assumed First Source Debt 3.3(c)
Assumed IEL Debt 3.3(g)
Assumed Liabilities 2.3
Assumed Trust Debt 3.3(f)
Assumed West Valley City Debt 2.3(h)
Atlanta Terminal 2.1(i)
Auction 5.12(a)
Bankruptcy Court Recitals
Bid Fees 5.12(a)
Bid Procedures Order 5.12(a)
Break-Up Fee 5.12(a)
Business Recitals
Case Recitals
Cash Collateral Agreement 3.3(a)
Claims 2.1(l)
Closing 3.1
Closing Date 3.1
Competing Transactions 5.12(a)
Contracts 4.2(g)
Cure Amount or Cure Amounts 2.6(a)
DOT Specs 3.4(a)
Effective Time 5.1(b)
Employee Administrative Claims 2.3(f)
Environmental Laws 4.2(l)(i)
Environmental Permits 4.2(l)(vi)
Excluded Assets 2.2
Excluded Liabilities 2.4
Expense Reimbursement 5.12(a)
Fixed Assets 2.1(e)
Fontana Terminal 2.1(i)
Headquarters 2.1(h)
IEL Leases 2.1(c)
Intangible and Business Record Property 2.1(n)
Intellectual Property 2.1(m)
Interim Financial Statements 4.2(h)(ii)
Licenses and Authorities 2.1(f)
Miscellaneous Leases 2.1(d)
Owned Equipment 2.1(j)
Permits 4.2(k)
Proration Amounts 5.11(a)
Purchase Price 3.3
RLI Excluded Asset 2.2(i)
Reference Balance Sheet 3.4(a)
Rupert Drop Yard 2.1(i)
Springville Drop Yard 2.1(i)
Title Commitments 6.2(c)
Title Policies 6.2(c)
Tractor Leases 2.1(a)
Trailer Leases 2.1(b)
Withholdings 2.5
Withholding Agreements 2.5
ARTICLE II
Transfer of Assets and Liabilities
2.1 Assets to be Sold. Subject to the terms and conditions of this Agreement and
the Sale Order, at Closing, Sellers shall sell, convey, assign, transfer, and
deliver to Buyer, and Buyer shall purchase, acquire, and accept all of the
right, title, and interest of Sellers in and to each of Sellers' respective
assets, properties, rights, contracts, and goodwill of every kind, nature and
description, owned or leased, real, personal, or mixed and whether tangible or
intangible, wherever located and whether or not carried or reflected on Sellers'
books or records, all as the same exist on the Closing Date, including, without
limiting the generality of the foregoing, the following assets and rights
(collectively, the "Acquired Assets"):
(a) subject to Section 2.6, those third-party leases covering the tractors
listed on Schedule 2.1(a) (the "Tractor Leases");
(b) subject to Section 2.6, those third-party leases covering
the trailers listed on Schedule 2.1(b) (the "Trailer Leases");
(c) those Interstate Equipment Leasing, Inc. leases covering
tractors listed on Schedule 2.1(c) (the "IEL Leases");
(d) subject to Section 2.6, all other leases of real and personal
property listed on Schedule 2.1(d) ("Miscellaneous Leases");
(e) all furniture, fixtures, equipment, machinery, office equipment,
office supplies, computers, telephone systems, other office assets, shop
equipment, maintenance equipment, inventory, spare parts, oil, fuel supplies,
tires, Qualcomm equipment, service vehicles, and other tangible personal
property owned by any Seller, including but not limited to the items listed on
Schedule 2.1(e) (collectively, the "Fixed Assets");
(f) any licenses, license plates, Permits, authorities, franchises, and
other authorizations of any Governmental Entity relating to the Acquired Assets
and to the operation of the Business (collectively, "Licenses and Authorities"),
to the extent the same are transferable or assignable;
(g) all of Sellers' contracts and agreements listed on Schedule 2.1(g)
including, without limitation, any services or equipment leasing agreements with
the owner-operators listed on such Schedule, and any Used Truck Conditional
Trade Agreements, Agreements for Conditional Commitment to Repurchase, letters,
and similar "buyback" and "trade-back" agreements or other arrangements with any
of the parties listed on such Schedule (collectively, the "Assumed Contracts"),
including the Withholding Agreements, to the extent the same are transferable or
assignable;
(h) the real property, improvements, buildings, and fixtures
situated in West Valley City, Utah, owned by Terminal (collectively, the
"Headquarters");
(i) the real property, improvements, buildings, and fixtures owned by
DSTI and situated at Xxxxxx, Georgia (the "Atlanta Terminal"), Fontana,
California (the "Fontana Terminal"), Rupert, Idaho (the "Rupert Drop Yard"), and
Springville, Utah (the "Springville Drop Yard");
(j) the model year 1998 FLD120 tractors (approximately 70 in number),
the model year 1996 Utility trailers (approximately 184 in number), the 26 owned
tractors, and the 22 owned trailers each as listed on Schedule 2.1(j), and all
other owned tractors and trailers (the "Owned Equipment");
(k) all unexpired license plate and tag fees;
(l) all past, present, and future disputes, controversies, actions,
causes of action, claims, obligations, demands, rights, damages, costs,
expenses, compensation, and liabilities of any kind or nature whatsoever
(whether at law or in equity; whether known or unknown; whether suspected or
unsuspected; whether accrued or unaccrued; whether alleged or unclaimed), if
any, of Sellers or their estates against Buyer or any Affiliate of Buyer,
including, without limitation, any claims or causes of action arising under
Chapter 5 of the Bankruptcy Code; but expressly excluding, however, any claims
that (i) arise from and after the Closing or (ii) arise in connection with this
Agreement (collectively, "Claims");
(m) all of Sellers' right, title, or interest in or to any of Sellers'
patents, patent registrations, patent applications, trademarks, trademark
registrations, trademark applications, tradenames, trade dresses, logos,
copyrights, copyright applications, and copyright registrations, including those
listed on Schedule 2.1(m) (collectively, "Intellectual Property");
(n) all intangible and business record property of the Sellers, which
shall include, but not be limited to, all customer lists, goodwill, vendor
rebates and warranties, customer contracts, equipment repurchase, buy-back,
trade-in, or similar agreements, telephone numbers, fax numbers, domain names,
Websites, and business records applicable to the operation of the Business
(including, without limitation, those relating to the Acquired Assets,
owner-operators, office employees, and drivers) (collectively, "Intangible and
Business Record Property");
(o) all rights and causes of action relating to the Assumed Assets;
(p) all customer accounts receivable or other amounts receivable of
every kind or character whatsoever, and any chattel paper, notes receivable, or
other instruments evidencing such accounts receivables;
(q) intentionally omitted;
(r) other than with respect to RLI Insurance Company, and the group of
insurance companies providing Sellers' automobile and general liability
coverage, all rights under the Sellers' insurance policies, including, without
limitation, assets, contract rights, general intangibles, or any other claims
against or relating to policies issued by Genesis Insurance Company or any other
insurance company, including insurance premium refunds, bond refunds, letter of
credit refunds, workers' compensation refunds, and any other refunds;
(s) all rights under Sellers' lock box accounts, including such
accounts at Key Bank (account number 440580052411 pursuant to that certain
Tri-Party Lockbox Agreement among DSTI, Keybank, National Association, and
CitiCapital dated November 29, 2001) and US Bank (account number 153190223971
pursuant to that certain Blocked Account Agreement among DSTI, U.S. Bank
National Association, and Associates TransCapital Services, a division of
Associates Commercial Corporation, dated May 9, 2001); and
(t) the right to receive the amounts set forth in section 5.19, with
respect to the RLI Excluded Asset.
2.2 Excluded Assets. The Acquired Assets shall not include any of Sellers'
right, title, or interest in or to any of the following which, in each case,
shall remain subject to all valid and perfected liens and interests, including
any liens or interests arising under the DIP Credit Agreement or the Stipulation
and Agreement for use of Cash Collateral in the Case on file with the Bankruptcy
Court (collectively, the "Excluded Assets"):
(a) all rights of Sellers under this Agreement, including the Purchase
Price;
(b) any contracts and agreements other than the Assumed Assets;
(c) all rights, demands, claims, actions, and causes of action,
including, without limitation such as arise under Chapter 5 of the Bankruptcy
Code, that Sellers, Sellers' estate, or any other party in interest may have
other than the Claims;
(d) all Rejected Equipment;
(e) all Excluded Records;
(f) any capital stock or other equity interest in any of Sellers'
direct or indirect subsidiaries;
(g) any right, property or asset listed on Schedule 2.2(k) hereto;
(h) any contract or lease not assumed by Buyer under Sections 2.1(a),
(b), (c), (d) or (g) and 2.6;
(i) all rights under the Sellers' insurance policies with RLI Insurance
Company, and the group of insurance companies providing Sellers' automobile and
general liability coverage, including, without limitation, assets, contract
rights, general intangibles, or any other claims against or relating to such
policies, including insurance premium refunds, bond refunds, letter of credit
refunds, and any other refunds (the "RLI Excluded Asset");
(j) any remaining balance of the Committee Retainer, as defined in
the Cash Collateral Agreement, and any remaining balance of retainers
applicable to professionals retained by Sellers;
(k) cash and cash equivalents or similar type investments, uncollected
checks, bank accounts, certificates of deposit, Treasury Bills, and other
marketable securities; and
(l) all prepaid rentals, and refunds of any security, vendor, utility
or other deposits (other than with respect to insurance), real property taxes,
personal property taxes and similar assessments and accruals payable in respect
of any of Sellers' assets which relate to periods prior to the Closing Date.
2.3 Liabilities to be Assumed by Buyer. At the Closing, Buyer shall assume and
pay when due and discharge only the Liabilities of Sellers set forth below and
no other Liabilities whatsoever (collectively, the "Assumed Liabilities"):
(a) Liabilities arising out of the ownership and operation of the
Acquired Assets by Buyer after the Closing, but only to the extent that the
event or occurrence of facts giving rise to such Liabilities occurs after the
Closing;
(b) Liabilities under the Assumed Assets that first arise on or after
the Closing Date (subject to Section 2.6);
(c) the amount of any obligations of Sellers under the Cash Collateral
Agreement and CitiCapital Credit Agreement, the agreed upon deficiency on the
Equipment Indebtedness as set forth in Section 3.3(b), the Assumed First Source
Debt, the Assumed Trust Debt, the Assumed IEL Debt, and the DIP Credit Agreement
that will be specifically assumed by Buyer in connection with the payment of the
Purchase Price under Section 3.3;
(d) obligations of Sellers under Section 4980B of the Code to provide
continuation of group medical coverage with respect to Seller's employees who
have been hired by Buyer or other qualified beneficiaries of such employees
after the Closing;
(e) Liabilities related to the termination of employment by Buyer of
any employee of Sellers who becomes an employee of Buyer, including, but not
limited to any Liability arising under the WARN Act, but only to the extent that
the event or occurrence of facts giving rise to such Liabilities occurs after
the Closing;
(f) the obligations of Debtors as set forth below (the "Employee
Administrative Claims"), in each case relating to the period prior to Closing:
Estimated
Type Amount
Self-insured health and dental claims run-out $ 1,600,000
Accrued and unpaid vacation pay 465,000
Owner-operator and driver accounts, plus tire escrow 1,064,000
Employee wages and benefits, including applicable
withholding obligations, between last scheduled
payroll prior to Closing and Closing 2,980,000
-----------
Total Estimated Amount $ 6,109,000
===========
(g) Cure Amounts to the extent specifically noted on Schedule
2.1(g), 2.1(g)-1, 2.1(g)-2, and 2.1(g)-3 required in
connection with the Assumed Assets; and
(h) the amount of all outstanding obligations of Sellers, on a
non-accelerated basis, under the special assessment by West Valley City relating
to the Headquarters property (the "Assumed West Valley City Debt").
2.4 Excluded Liabilities. Except as otherwise set forth in this Agreement, Buyer
shall not assume, and shall be deemed not to have assumed under any theory of
successor liability or otherwise, any Liabilities except for the Assumed
Liabilities, and Sellers shall be solely and exclusively liable with respect to
all Liabilities of Sellers other than the Assumed Liabilities (collectively, the
"Excluded Liabilities"), including, but not limited to, those Liabilities set
forth below:
(a) any Liabilities which arise, whether before, on, or after the
Closing Date, out of, or in connection with, the Excluded Assets;
(b) except for Liabilities assumed under Sections 2.3(d), (e), or (f),
any Liabilities arising out of, or in connection with, the ownership and
operation of the Acquired Assets or the Business to the extent that the event or
occurrence of facts giving rise to such Liabilities occurs prior to the Closing;
(c) any Liabilities arising out of or in connection with any amounts
owed by Sellers to their lenders or to their vendors of goods and services
delivered or furnished to Sellers prior to Closing, except as otherwise provided
in this Agreement;
(d) except for Liabilities assumed under Sections 2.3(d), (e) or (f),
any Liabilities for Sellers' employees arising from Sellers' operation of the
Business prior to the Closing Date including pension, health insurance claims,
workers' compensation claims or liabilities, profit sharing or any other Benefit
Plans, severance benefits, earned but unpaid salary, accrued but unpaid vacation
days, accrued but unpaid medical and dental expenses, and other accrued welfare
benefits, compensation, or retiree medical and other benefits and obligations;
(e) any Liabilities for Taxes of Sellers, including, but not limited
to, all Taxes attributable to, incurred in connection with or arising out of the
collection of accounts receivable and the operation of the Business including
those Taxes which are not due or assessed until after the Closing Date but which
are attributable to any period (or portion thereof) ending on or before the
Closing;
(f) Liabilities related to the termination of employment of employees
of Sellers by Sellers, including, but not limited to, any Liabilities arising
under the WARN Act as a consequence of the transactions contemplated by this
Agreement or prior thereto;
(g) except as otherwise provided in Section 8.2 hereof, any brokers' or
finders' fees or other liability of Sellers for costs and expenses (including
fees and expenses relating to professional advisors incurred in connection with
this Agreement);
(h) Liabilities for any violations of Laws, including Environmental
Laws by Sellers; and
(i) Cure Amounts other than those specifically noted on Schedule
2.1(g), 2.1(g)-1, 2.1(g)-2, and 2.1(g)-3 required in connection with the Assumed
Assets; provided, nothing herein shall be construed to obligate Sellers with
respect to any Cure Amounts.
2.5 Owner-Operator Settlement Withholdings. Under certain agreements with
Interstate Equipment Leasing, Inc., DST Leasing, LLC, and owner-operators of
equipment ("Withholding Agreements"), DSTI has agreed to withhold certain
amounts from owner-operator settlement statements, hold such funds in trust, and
remit such funds directly to payees designated by the owner-operators, or
otherwise hold such funds in escrow for the benefit of the owner-operators (such
funds referred to as the "Withholdings"). A schedule of the Withholding
Agreements and the balances of the Withholdings (as of 3/31/02) is attached as
Schedule 2.5. The Withholdings are the property of the owner-operators (with any
applicable payees as intended third-party beneficiaries), and DSTI agreed to
segregate the Withholdings in a trust account and not commingle the Withholdings
with its own funds. At Closing, Sellers shall assume and assign the Withholding
Agreements and cause the full amount of all Withholdings to be transferred to
Buyer, and Buyer shall accept the assignment and assume the obligations under
the Withholding Agreements, including the obligation to remit such transferred
Withholdings promptly to any applicable payee in accordance with the applicable
Withholding Agreements. The Withholdings shall not be an Asset or an Excluded
Asset, as it is agreed that the Withholdings are not the property of Sellers
within the meaning of Section 541 of the Bankruptcy Code and shall not become
the property of Buyer. Nothing in this Section 2.5 shall be construed to
obligate Sellers with respect to withholdings from owner-operator settlements
that were never collected.
2.6 Assumption and Assignment of Assumed Assets.
(a) Sellers shall cooperate in all reasonable respects in connection
with negotiations between Buyer and the counterparties to the Assumed Assets
with respect to (i) the terms and conditions upon which any Assumed Asset shall
be assumed and assigned, regarding which the parties agree to use commercially
reasonable efforts to obtain the respective counterparties agreement to (A) the
satisfaction or waiver and release of all Cure Amounts, or assumption thereof by
Buyer in the amounts as set forth on Schedule 2.1(g)-1, 2.1(g)-2, and 2.1(g)-3
relating to such Assumed Asset, on terms and conditions acceptable to Buyer and
without further payment, provided, however, Sellers shall in no event be
required to pay any Cure Amount due with respect to any Assumed Asset, and (B)
the waiver of all pre- and post-petition claims under the terms of the Assumed
Asset in exchange for release by Sellers of all claims against such
counterparty; and (ii) any amendments, revisions or modifications to the terms,
provisions or conditions of the executory contract or unexpired lease covering
such Assumed Asset, the material terms of which have been communicated to the
counterparties thereof. If, notwithstanding the efforts of the parties as
described above, any counterparty to an Assumed Asset shall fail, at or prior to
the Closing, to enter into documentation acceptable to Buyer approving the
assumption by Buyer of the Assumed Asset, the satisfaction or waiver of the Cure
Amounts if not included in the Assumed Liabilities, and the amendments,
revisions, or modifications required by Buyer in its sole discretion, then, not
later than the Closing, Buyer may, in its sole and complete discretion,
determine that such previously-designated Assumed Asset shall not constitute an
Assumed Asset and shall not be assigned, transferred or conveyed to Buyer as
part of the Acquired Assets. In such event, Sellers shall remain solely and
completely liable for all obligations arising under such previously-designated
Assumed Asset, which Sellers may then reject under the Bankruptcy Code as of the
Closing Date or as soon as is reasonably practicable thereafter.
(b) Buyer shall cooperate in all reasonable respects in connection with
Sale Motion proceedings commenced by Sellers in accordance with Section 5.12(b)
of this Agreement for the purpose of obtaining, pursuant to the Sale Order, an
order of the Bankruptcy Court authorizing and directing the Seller to assign the
Assumed Assets to Buyer pursuant to Section 365 of the Bankruptcy Code and
otherwise to gain approval for the transactions contemplated by this Agreement.
For greater clarity, Buyer shall reasonably cooperate in efforts to demonstrate
Adequate Assurance of Buyer's performance of its obligations under the Assumed
Assets; provided, however, that no later than the Closing Date, Buyer may, in
its sole and complete discretion, elect to not provide Adequate Assurance with
respect to any Assumed Asset, in which case such previously designated Assumed
Asset shall not constitute an Assumed Asset and shall not be assigned,
transferred or conveyed to Buyer as part of the Acquired Assets. Sellers shall
remain solely and completely liable for all obligations arising under such
previously designated Assumed Assets.
ARTICLE III
Closing
3.1 Closing. The consummation of the transactions contemplated by this Agreement
(the "Closing") shall take place at the offices of Sellers located at 0000 Xxxx
0000 Xxxxx, Xxxx Xxxxxx Xxxx, XX 00000-0000, 10:00 a.m., local time, on April
22, 2002, or at such other time, date and place as shall be fixed by agreement
among the parties (the date of the Closing being herein referred to as the
"Closing Date").
3.2 Deliveries at Closing.
(a) At the Closing, the Sellers shall deliver to Buyer (i) such deeds,
bills of sale, assignments of leases and contracts, and any other instruments of
conveyance that are necessary or appropriate to effectuate the transfer of the
Acquired Assets and the Withholdings to Buyer, (ii) the closing certificate
required to be delivered pursuant to Section 6.3(a), and (iii) such other
documents, instruments, or certificates as Buyer or its counsel may reasonably
request.
(b) At the Closing, Buyer shall deliver to the Sellers (i) such duly
executed instruments as are deemed necessary or appropriate to effectuate the
assumption of the Assumed Liabilities by Buyer, (ii) the closing certificate
required to be delivered pursuant to Section 6.2(a), (iii) such other documents,
instruments, or certificates as the Sellers or their counsel may reasonably
request, and (iv) the cash portion of the Purchase Price in immediately
available funds.
3.3 Purchase Price. Subject to adjustment as provided in this Agreement, at the
Closing, Buyer shall pay to Sellers an amount equal to: (x) $26,444,000, plus
(y) eighty percent (80%) of the face amount of DSTI's Eligible Accounts as of
the day immediately preceding the Closing Date, plus (z) eighty percent (80%) of
the face amount of DSTI's Unbilled Accounts as of the day immediately preceding
the Closing Date (the "Purchase Price") and, in addition, the Buyer shall assume
and pay, perform, and discharge the Employee Administrative Claims. The Purchase
Price shall be paid in the manner and in the order as follows
(a) payment at Closing of all outstanding obligations of Sellers to
CitiCapital Commercial Corporation under the Stipulation and Agreement Regarding
Use of Cash Collateral (the "Cash Collateral Agreement") and CitiCapital Credit
Agreement, with the estimated amount of $13,693,455 as of April 15, 2002 (before
interest accruals for April), such amount including the prepayment penalty of
$300,000 owing CitiCapital and the CitiCapital Carve Out; provided, that this
Section 3.3(a) does not include any amount relating to the cross-collateralized
Equipment Indebtedness (as defined in the Cash Collateral Agreement);
(b) payment at Closing of all outstanding obligations of Sellers for
Equipment Indebtedness to CitiCapital, in an agreed amount of $2,560,166;
(c) assumption of all outstanding obligations of Sellers, on a
non-accelerated basis, under the equipment financing in favor of First Source,
in an agreed amount of $409,659 as of April 22, 2002 (the "Assumed First Source
Debt");
(d) intentionally omitted;
(e) intentionally omitted;
(f) assumption of all outstanding obligations of Sellers to the Xxxxx
and Xxxxxx Xxxxx Family Trust under that certain promissory note, in an agreed
amount of $3,104,000 as of April 22, 2002, and which is secured by a Lien on
certain assets of Sellers (the "Assumed Trust Debt");
(g) assumption of all outstanding obligations of Sellers to Interstate
Equipment Leasing, Inc., under that certain promissory note, in an agreed amount
of $4,732,825 as of April 22, 2002, and which is secured by a Lien on certain
assets of Sellers (the "Assumed IEL Debt"); and
(h) the balance in Buyer's sole discretion in cash by wire transfer of
immediately available funds, through assumption by Buyer of all or any part of
the outstanding obligations of Sellers under the DIP Credit Agreement, in an
agreed amount of $3,534,563, or a combination thereof; provided, however, that
at least $500,000 of such amount (including the $250,000 deposited by Buyer with
Sellers on April 8, 2002) shall be paid in cash to the estate.
3.4 Adjustment of Purchase Price.
(a) The Purchase Price was originally determined with reference to
asset values reflected on a consolidated balance sheet of Sellers as of January
31, 2002, substantially in the form attached as Schedule 3.4(a) (the "Reference
Balance Sheet") and with the assumption that all of the Owned Equipment and
Fixed Assets (i) can be located at Closing; and (ii) that all tractors and
trailers comprising the Owned Equipment meet all U.S. Department of
Transportation requirements concerning operating condition ("DOT Specs").
(b) Except to the extent already adjusted on Schedule 3.4(k), the
Purchase Price shall be increased or decreased, as the case may be, by the
extent to which the net book value of the assets identified on Schedule 3.4(b)
(the "Adjustment Assets") as of Closing differs from the net book value of the
Adjustment Assets on the Reference Balance Sheet. For example, fuel inventory
had a net book value of $71,000 on the Reference Balance Sheet. If fuel
inventory at Closing is $100,000, the Purchase Price will be increased by
$29,000, and if fuel inventory at Closing is $50,000, the Purchase Price will be
decreased by $21,000.
(c) Except to the extent already adjusted on Schedule 3.4(k), the
Purchase Price shall be decreased to reflect any of the Owned Equipment and
Fixed Assets that (i) cannot be located at Closing, and (ii) any tractors or
trailers comprising the Owned Equipment that fail to meet DOT Specs at Closing.
In the event of (i) or (ii) in the immediately preceding sentence, Buyer shall
be entitled to exclude the applicable piece(s) of Owned Equipment from the
Acquired Assets. In such event, it shall become an Excluded Asset and the
Purchase Price shall be reduced by an amount equal to $25,000 for each excluded
tractor, $11,000 for each excluded trailer, and net book value for any asset
other than a tractor or trailer that is excluded.
(d) It is understood that Sellers may not be able to locate or verify
the condition of all of the Owned Equipment at Closing. Accordingly, for a
period of ten days after Closing: (i) Sellers shall have the right, at their
cost, to locate Owned Equipment that was not located at Closing and to bring any
non-conforming Owned Equipment into DOT Specs and thereby retain such tractors
and trailers as Acquired Assets purchased by Buyer; and (ii) Buyer shall have
the right to demonstrate that any Owned Equipment included in the Acquired
Assets at Closing either was not located at Closing (and still has not been
located) or failed to meet DOT Specs at Closing (and has not been brought into
DOT Specs by Sellers). In the event of either (i) or (ii) of the preceding
sentence, the Purchase Price shall reflect such facts accordingly.
(e) At Closing, Sellers and Buyer shall agree on a statement of all
then-known Proration Amounts plus all other Proration Amounts reasonably capable
of estimation. Except as otherwise provided herein, all Proration Amounts due in
respect of periods following the commencement of the Cases but prior to the
Closing Date shall be paid in full or otherwise satisfied by Sellers and all
Proration Amounts due in respect of periods on and after the Closing Date shall
be paid in full or otherwise satisfied by Buyer. Buyer shall have no liability
to any party for, and no third party may refuse to provide service to Buyer on
account of, any Proration Amounts due in respect of periods prior to the Closing
Date that remain unpaid after the Closing Date, provided, however, that Sellers
shall have no liability for any such refusal by a third party.
(f) At Closing, the Purchase Price shall be reduced by the amount of
any Lien in favor of National Life on the Headquarters, and Buyer shall purchase
the Headquarters subject to such Lien. In no event shall the Purchase Price be
reduced by more than $12,930,040 pursuant to this Section 3.4(f). Buyer shall
indemnify and hold harmless Sellers and their estates for any claims arising
from such Lien.
(g) The parties agree that the Proration Amounts have not been agreed
to as of this date, and that Schedule 3.4(k) and the language added to Section
3.4(k) by this Agreement do not prevent updating the Proration Amounts through
Closing.
(h) If and to the extent Sellers collect any sums relating to the
insurance provided by RLI Insurance Company, and the group of insurance
companies providing Sellers' automobile and general liability coverage, then Xxx
Xxxxxx or Xxx Xxxxxxxx, acting on behalf of Sellers, will immediately forward to
Buyer all such sums when received, up to $4,000,000, plus all costs incurred by
Buyer relating thereto, and shall immediately forward one-half of the net excess
over $4,000,000 to Buyer.
(i) At or prior to the Closing, the parties, in good faith, shall
estimate the aggregate amount of the Employee Administrative Claims, and the
Purchase Price shall be increased or decreased, as the case may be, by the
amount, if any, by which the aggregate Employee Administrative Claims are
estimated by the parties to be less than or greater than $6,055,000,
respectively.
(j) If and to the extent Buyer collects more than $20,000,000 of DSTI's
Eligible Accounts and Unbilled Accounts, then Buyer will apply the excess over
$20,000,000 first to all costs of collection and then shall promptly pay
one-fourth of the remaining net excess over $20,000,000 to the Debtors.
(k) The parties have prepared a schedule of adjustments attached hereto
as Schedule 3.4(k) based upon the Debtors' consolidated March 31, 2002, balance
sheet and agree that the Purchase Price already reflects an adjustment of
$2,195,847 as a result of adjustments under Section 3.4 between the date of the
Reference Balance Sheet and March 31, 2002, and an additional $191,000 for six
owned trailers and five owned tractors determined to be missing or wrecked as of
April 11, 2002. At Closing, any further adjustment to the Purchase Price in
respect of Section 3.4 shall be made: (i) only to reflect changes during the
period from April 1, 2002, to Closing (or from April 11, 2002, in the case of
additional tractors and trailers determined to be missing or wrecked); (ii) to
reflect any error or omission in the information provided by the Debtors to
produce Schedule 3.4(k); (iii) no adjustment shall be made for additional
depreciation after March 31, 2002; and (iv) no further adjustment shall be made
for changes in company store inventory of the Sellers.
3.5 Allocation of Purchase Price. At Closing, Buyer shall deliver an allocation
(the "Allocation") of the Purchase Price in accordance with Section 1060 of the
Code. Buyer and Sellers shall (i) be bound by the Allocation, (for Tax purposes
only, and not for any other purpose), (ii) act in a manner consistent with the
Allocation in the preparation of financial statements and filing of all United
States federal income tax returns (including, without limitation, filing Form
8594 with their United States federal income tax returns for the taxable year
that includes the Closing Date) and in the course of any Tax audit, Tax review
or Tax litigation relating thereto, and (iii) take no position and cause their
Affiliates to take no position inconsistent with the Allocation for any Tax
purposes.
3.6 Transfer Taxes. To the extent the sale of the Acquired Assets and other
transactions contemplated hereby are subject under applicable Laws to Transfer
Taxes that are not exempt under Bankruptcy Code Section 1146, such Transfer
Taxes shall be borne by Sellers.
3.7 Possession. Right to possession of the Acquired Assets shall transfer to
Buyer on the Closing Date. Sellers shall transfer and deliver to Buyer on the
Closing Date such keys, lock and safe combinations and other similar items as
Buyer shall require to obtain immediate and full occupation and control of the
Acquired Assets, and shall also make available to Buyer at Sellers' then
existing locations all documents in Sellers' possession that are required to be
transferred to Buyer by this Agreement.
ARTICLE IV
Representations and Warranties
4.1 General Statement. The parties hereto represent and warrant to each other
that the statements contained in this Article IV are correct and complete as of
the date of this Agreement and shall be correct and complete as of the Closing
Date (as though made then and as though the Closing Date were substituted for
the date of this Agreement). The survival of all such representations and
warranties shall be in accordance with Section 9.2 hereof. Unless otherwise
specified herein or on schedules referenced herein, all representations and
warranties of the parties are made subject to the exceptions that are noted in
such schedules. Copies of all documents referenced in the schedules shall be
attached thereto or delivered separately.
4.2 Representations and Warranties of the Sellers. Each Seller hereby
represents and warrants to Buyer as follows:
(a) Existence and Good Standing. Such Seller is duly organized, validly
existing, and in good standing under the laws of the state of its organization,
and, subject to the applicable provisions of bankruptcy law, has all requisite
power and authority to own, lease, and operate its respective Acquired Assets to
be sold hereunder. Subject to the applicable provisions of bankruptcy law, each
Seller has all requisite power and authority to conduct its business as
presently conducted. Except where the failure to qualify, individually or in the
aggregate, would not have a materially adverse effect on the Acquired Assets or
Assumed Liabilities or materially impair or delay the ability of Sellers to
consummate the transactions contemplated hereby, Sellers are duly qualified to
do business as foreign corporations or other entities in all jurisdictions
listed on Schedule 4.2(a), which constitute all jurisdictions in which the
location of their properties or the conduct of their business requires such
qualification.
(b) Execution and Binding Effect. Subject to entry of the Sale Order,
(i) each Seller has all requisite power and authority to execute and deliver
this Agreement and the other documents and instruments to be executed and
delivered by it and to perform its obligations hereunder and thereunder; and
(ii) execution, delivery, and performance of this Agreement and the other
agreements contemplated hereby have been duly and validly authorized by all
requisite corporate action on behalf of the Sellers, and, upon execution and
delivery of this Agreement and such other documents by such Seller will
constitute (assuming in each case the due and valid authorization, execution and
delivery thereof by the other parties thereto), a valid and legally binding
obligation of such Seller enforceable against such Seller in accordance with its
respective terms.
(c) No Violation. Except as disclosed in Schedule 4.2(c) and upon entry
of the Sale Order, the execution, delivery and performance by each Seller of
this Agreement and the transactions contemplated hereby, do not and will not
conflict with or result in, with or without the giving of notice or lapse of
time or both, any violation of or constitute a breach or default, or give rise
to any right of acceleration, payment, amendment, cancellation or termination,
under (a) the Articles of Incorporation, Bylaws or other constituent documents
of such Seller or any resolution adopted by the board of directors or similar
managing Person or group of such Seller and not rescinded, (b) any agreement or
other instrument to which such Seller is a party or by which such Seller or any
of its respective properties or assets is bound, except where the conflict,
violation, breach, or default of such agreement or instrument, or all such
agreements or instruments, would not have a materially adverse effect on the
Acquired Assets or Assumed Liabilities or materially impair or delay the ability
of Sellers to consummate the transactions contemplated hereby, (c) any Order of
any Governmental Entity to which such Seller is bound or subject, (d) any Law
applicable to such Seller or any of its respective properties or assets or (e)
except as provided for herein, result in the imposition or creation of any Lien
upon or with respect to any of the Acquired Assets.
(d) Third Party Approvals. Except for (a) the Sale Order and (b) the
third party approvals set forth on Schedule 4.2(d) for which the failure to
obtain such approvals, individually or in the aggregate, would have a materially
adverse effect on the Acquired Assets or Assumed Liabilities or materially
impair or delay the ability of Sellers to consummate the transactions
contemplated hereby, the execution, delivery and performance by such Seller of
this Agreement and the transactions contemplated hereby do not require any
consents, waivers, authorizations or approvals of, or filings with, any third
Persons which have not been obtained by such Seller.
(e) Acquired Assets.
(i) Except as disclosed in Schedule 4.2(e), each Seller owns,
or has a valid leasehold interest in, the Acquired Assets being
transferred by it free and clear of any and all Liens. Subject to entry
of the Sale Order, at the Closing, all of such Seller's right, title
and interest in and to the Acquired Assets (or in the case of any
leased or licensed Acquired Assets, such Seller's rights under such
leases or licenses) shall be transferred to Buyer or its designee, free
and clear of all Liens or Liabilities of any kind or nature whatsoever
except for the Assumed Liabilities.
(ii)Except as disclosed in Schedule 4.2(e), the Acquired
Assets, including the equipment operated under the Assumed Leases, are
in good operating condition, ordinary wear and tear excepted, are
suitable for continued use in the operation of the Business, and the
tractors and trailers included therein meet DOT Specs.
(f) Brokers and Finders. No Person is entitled to any brokerage,
financial advisory or finder's fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of Sellers that would be payable by Buyer.
(g) Contracts. Sellers have provided Buyer with a materially accurate
list and brief description of all material written and oral contracts,
agreements, leases and other legally binding commitments ("Contracts") to which
each Seller is a party.
(h) Public Reporting and Financial Statements.
(i) Each of the audited and unaudited financial statements
included in or incorporated by reference into the Sellers' Public
Reports (including the related notes and schedules) (i) complied in all
material respects with applicable requirements of the SEC with respect
thereto; (ii) have been prepared in accordance with GAAP applied on a
consistent basis throughout the periods covered thereby; and (iii)
present fairly Sellers' financial condition as of the indicated dates
and the results of operations of Sellers for the indicated periods,
provided, however, that the interim statements are subject to normal
and recurring year-end adjustments that have not been and to Sellers'
knowledge will not be material.
(ii) Sellers' have heretofore delivered to Buyer financial
statements for the interim period ending March 31, 2002 (the "Interim
Financial Statements"). The Interim Financial Statements fairly present
in all material respects the financial condition, cash flows, changes
in stockholders' equity and results of operations of the Business as of
March 31, 2002, in accordance with GAAP applied on a consistent basis.
(i) Certificate of Service. The parties shown on the certificate of
service with respect to the Sale Motion constitute all persons required to
receive notice under the terms of the Bid Procedures Order, including all
parties having filed a notice of appearance in the Case pursuant to notice under
Bankruptcy Rule 2002 and all Persons owning, claiming or asserting an interest
in or with respect to any of the Acquired Assets, and all Persons to whom notice
of the sale is required to be sent under the Bankruptcy Code and in order to
afford the relief sought under the Sale Order.
(j) Intellectual Property.
(i) Schedule 2.1(m) accurately lists all of the Intellectual
Property owned, used, or licensed by Sellers.
(ii) Sellers have taken all necessary steps and actions to
obtain, maintain and renew all Intellectual Property used or held for
use in the Business.
(iii)Sellers own or otherwise have the right or license to use
the Intellectual Property, free and clear of all Liens (subject to
entry of the Sale Order).
(iv) Subject to the entry of the Sale Order, no Approval of
any third party will be required for use by Buyer of any of the
Intellectual Property or the transfer of Sellers' rights therein to
Buyer.
(v) No claims are currently pending, or to Sellers'
knowledge, are threatened by any Person involving or questioning
Sellers' right to use any of the Intellectual Property or challenging
or questioning the validity or effectiveness of any license or similar
agreement related to the Intellectual Property.
(vi) The use of the Intellectual Property by Sellers does not
infringe the rights of any Person nor, to the Sellers' knowledge, is
any infringing use of the Intellectual Property currently ongoing by
any Person.
(k) Compliance With Laws; Permits. Except as set forth on Schedule
4.2(k): (i) Sellers have owned, leased, and used all of their properties and
assets, and have conducted their business, in compliance in all material
respects with all applicable Laws; (ii) Sellers have not been charged with any
violation of Law, and no Proceeding is pending or threatened by any Governmental
Entity with respect to any violation of Law by Sellers; (iii) no Judgment is
unsatisfied against Sellers; (iv) Sellers are not subject to any stipulation,
Order, consent, or decree arising from an action before any Governmental Entity;
(v) Sellers possess all Permits, licenses, franchises, and other approvals of
Governmental Entities including common and contract carrier and brokerage
authority (collectively, "Permits") required to operate their Business, such
Permits are in full force and effect, any applications for renewal have been
duly filed on a timely basis, no Proceeding is pending or threatened to revoke
or limit any Permit, each Seller is operating in compliance with all Permits,
and subject to the Sale Order, to the extent a Permit is transferable and
assignable, such Permit will be transferred to Buyer at Closing and will
continue in full force and effect.
(l) Environment, Health, and Safety. Except as set forth in
Schedule 4.2(1):
(i) Sellers, their Affiliates, and any predecessors of either
have complied with all Laws concerning pollution or protection of the
environment, public health and safety, and employee health and safety,
including Laws relating to emissions, discharges, releases, or
threatened release of pollutants, contaminants, or chemical,
industrial, hazardous, or toxic materials or wastes (including
petroleum and any fraction or derivative thereof) into ambient air,
surface water, ground water, or lands, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or hauling of such substances (collectively,
"Environmental Laws").
(ii) There has not been, and is not now occurring, any
material release of any Hazardous Material on, in, under, about or from
the properties of Sellers, including, a release that has come to be
located on or under the properties of Sellers. Sellers have no
Liability (and neither Sellers, their Affiliates, nor any predecessor
of either has handled or disposed of any substance, arranged for the
disposal of any substance, exposed any employee or other individual to
any substance or condition, or owned, operated, or used any property or
facility in any manner that could form the basis for any present or
future Proceeding against Sellers giving rise to any Liability) 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 reason under any Environmental Law.
(iii)There are no actions pending against Sellers that
involve, or relate to, environmental conditions, noncompliance with
Environmental Laws or the release, use or disposal of any Hazardous
Materials at the properties of Sellers or elsewhere by Sellers, and
Sellers have not received any written notice from any Governmental
Entity or other Person during the five years prior to the date hereof
claiming any violation of or any potential liability under any
Environmental Law relating to the Business or the Acquired Assets.
(iv) Any fuel or other storage tanks located at properties
presently or previously owned or used by Sellers in their Business
comply in all respects with applicable Laws, do not leak, are
registered with the appropriate state agency (and all required actions
in connection therewith have been taken) in the manner permitting
Sellers to take advantage of any state liability limitation,
insurance, or similar program relating to fuel storage tanks, and such
tanks are not scheduled for removal in the next five (5) years.
(v) Sellers have delivered to Buyer true and complete copies
and results of any reports, studies, analyses, tests, or monitoring
concerning Sellers or any property owned or used by Sellers concerning
compliance with Environmental Laws.
(vi) All Permits, licenses, authorizations, registrations and
other governmental consents required under Environmental Laws
("Environmental Permits") relating to the operation of the Business and
the Acquired Assets, including the manufacture, processing,
distribution, use, treatment, storage, disposal, discharge, emission,
transport, release, recycling or handling of Hazardous Materials in
connection with the operation of the Business, are valid and in full
force and effect. To Sellers' knowledge, there are no pending
Proceedings to revoke, cancel, modify or declare such Environmental
Permits invalid.
(vii)To Sellers' knowledge, none of the properties of Sellers
is listed in the United States Environmental Protection Agency's
National Priorities List of Hazardous Waste Sites under CERCLA or any
similar state list under any comparable state statute.
(m) Benefit Plans and Arrangements. Schedule 4.2(m) identifies the
Benefit Plans of each of the Sellers, copies of which, amended to date, have
been furnished to Buyer. No Benefit Plan is a multi-employer or a defined
benefit plan. None of the Sellers, their Affiliates, nor any predecessors of the
foregoing have been a party to or sponsored a multi-employer or defined benefit
plan. Sellers and all Benefit Plan fiduciaries have fully complied with their
obligations with respect to all Benefit Plans and all duties under ERISA. There
has been no prohibited transaction (under Section 4975 of the Code or 406 of
ERISA or otherwise) with respect to any Benefit Plan. Each Benefit Plan that is
intended to be qualified under Section 401(a) of the Code is so qualified and
has been since inception. Each trust created under any Benefit Plan is exempt
from tax under Section 501(a) of the Code and has been exempt from tax from
creation. Sellers have received determination letters from the Internal Revenue
Service for each such Benefit Plan at inception and after each amendment. Each
Benefit Plan has been maintained in compliance with its terms and all applicable
Laws. There has not been any event that would threaten the tax-qualified status
of any Benefit Plan. All payments and contributions due or accrued under each
Benefit Plan, determined in accordance with the terms of such plans and prior
funding and accrual practices, have been paid or are reflected as a liability on
the Reference Balance Sheet. Sellers have no current or projected Liabilities
with respect to post-employment or post-retirement welfare benefits for former
or retired employees.
(n) Employment Matters; Independent Contractors. Except as set forth
on Schedule 4.2(n):
(i) None of the Sellers are, nor have they been in the past
five (5) years, parties to any collective bargaining agreement relating
to their employees, nor does any such agreement determine the terms and
conditions of employment of any of their employees. Sellers are not
parties to any pending or threatened labor dispute and have not been
the subject of any attempt to unionize their employees. Sellers have
not experienced any actual or threatened employee strike, or employee
related work stoppage, slowdown, or lockout.
(ii) Seller is and has been in material compliance with all
applicable Laws regarding employment and employment practices, terms
and conditions of employment, wages and hours and is not and has not
been engaged in any unfair labor practice. Sellers do not have any
Liabilities for, and there are no pending claims, and to Sellers'
knowledge, no threatened claims, by or on behalf of any of its
employees under any Laws relating to employment, including but not
limited to, the Fair Labor Standards Act, the National Labor Relations
Act, Labor Management Relations Act, Civil Rights Act of 1964, Civil
Rights Act of 1991, Xxxxx-Xxxxx Act, Xxxxx Xxxxx Act, Post Civil War
Civil Rights Acts, (42 USC xx.xx. 1981-88), Age Discrimination in
Employment Act, Older Workers' Benefit Protection Act, Equal Pay Act of
1963, Executive Order 11246, Uniformed Service Employees Employment and
Reemployment Rights Act, Occupational Safety and Health Act, Employee
Retirement Income Security Act, Americans with Disabilities Act,
Rehabilitation Act of 1973, Family and Medical Leave Act, Worker
Adjustment and Retraining Notification Act, applicable workers' and
unemployment compensation laws, all as amended, on any applicable
contract, tort or other common law theories.
(iii)Each of Sellers' employees is an "at-will" employee,
and, except for certain stay bonus agreements, there are no written
employment, commission, compensation or severance agreements of any
kind between Sellers and any of their employees. True and complete
copies of each of Sellers' employment or supervisory manuals,
employment or supervisory policies, and written information generally
provided to employees (such as applications or notices) have been made
available to Buyer. Sellers do not have any agreements or
understandings with its employees or any employment practices contrary
to those reflected in the items made available to Buyer.
(iv) Sellers have no severance pay plan, policy, practice or
agreement with any of their employees. Sellers shall have sole
responsibility for severance pay, if any, to their employees for any
termination of employment by Sellers on, prior to or following the
Closing Date.
(v) Sellers maintain files on all employee and independent
contractor truck drivers in compliance with U.S. Department of
Transportation regulations. Each of Sellers' employees and independent
contractor drivers meets all Department of Transportation requirements,
and all driver files contain all required materials.
(vi) All independent contractors providing equipment and/or
services to Sellers have been retained under valid contracts and
qualify for independent contractor status under all applicable Laws,
including existing Internal Revenue Service rules and interpretations.
A copy of the form of contract used for any independent contractor
operators of rolling stock has been delivered to Buyer. Subject to
applicable provisions of the Bankruptcy Code, all such contracts are
terminable by Sellers upon no more than 30 days' written notice.
(o) Unemployment Contributions. Except as set forth on Schedule 4.2(o)
Sellers have timely paid or adequately accrued all contributions required to be
paid by Sellers to any unemployment compensation fund or other fund to which
Sellers are required to contribute under the laws of any applicable state with
respect to periods through Closing.
(p) Salaries, Employment Taxes, and Owner-Operator Settlements. Except
as set forth on Schedule 4.2(p) or included in the Employee Administrative
Claims, Sellers have, and as of the Closing will have, paid all wages, salaries,
bonuses, vacation time, sick leave, other leave or time off, owner operator
settlements, per diems, commissions, and other amounts owed to employees or
independent contractors of Sellers relating to periods through the Closing, and
have, and as of the Closing will have, withheld and paid over to the proper
Governmental Entity all Taxes (including, without limitation, state and federal
income tax, Federal Insurance Contribution Act taxes, federal unemployment tax,
state unemployment tax, and franchise taxes) required to be withheld or paid on
a timely basis.
(q) Taxes. Within the times and in the manner prescribed by Law,
Sellers have filed all tax returns and have withheld and paid all Taxes due and
payable. All tax returns of Sellers provided to Buyer or its Representatives are
accurate and complete. The provision made for Taxes on the Sellers' financial
statements is sufficient for the payment of all unpaid Taxes of the Sellers for
the periods ended on or prior to the Closing Date to the extent the failure to
pay any Tax could result in liability to Buyer or the imposition of a Lien or
encumbrance on the Acquired Assets. There are no present disputes as to Taxes or
any Tax Liens on any Acquired Assets. There are no outstanding agreements or
waivers extending dates for filing, payment, assessment or reassessment or
extending the statutes or other periods of limitation applicable to any Tax or
tax return of Sellers. There are no legal proceedings, audits, assessments,
reassessments or requests for information in progress, pending or threatened
against or involving any Seller in respect to Taxes nor are there any issues
under discussion with any Governmental Entity relating to any matters that could
result in claims for additional Taxes. Sellers have no liability for the Taxes
of any Person other than themselves.
SELLERS MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE
ACQUIRED ASSETS, THE ASSUMED LIABILITIES OR THE BUSINESS, EXPRESS OR IMPLIED,
BEYOND THOSE MADE IN THIS AGREEMENT, INCLUDING ANY IMPLIED REPRESENTATIONS OR
WARRANTIES AS TO THE CONDITION, MERCHANTABILITY, SUITABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF ANY OF THE ACQUIRED ASSETS, AND IT IS UNDERSTOOD THAT,
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES OF SELLERS CONTAINED IN
THIS AGREEMENT, BUYER TAKES THE ACQUIRED ASSETS ON AN "AS IS" AND "WHERE IS"
BASIS, AND "WITH ALL FAULTS."
4.3 Representations and Warranties of Buyer. Buyer hereby represents and
warrants to Sellers as follows:
(a) Existence, Good Standing and Power. Buyer is a corporation validly
existing and in good standing under the Laws of the State of Nebraska and has
all requisite power and authority to own, lease and operate the property it now
owns, leases and operates. Buyer has all requisite power and authority to
conduct its business as presently conducted, to execute and deliver this
Agreement and the other documents and instruments to be executed and delivered
by Buyer pursuant hereto and to perform its obligations hereunder and
thereunder.
(b) Authority. The execution, delivery and performance of this
Agreement and the other agreements contemplated hereby to be executed and
delivered by Buyer pursuant hereto and the consummation by Buyer of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate action on the part of Buyer.
(c) Execution and Binding Effect. This Agreement has been duly and
validly executed and delivered by Buyer and constitutes, and each of the other
agreements to be executed and delivered by Buyer pursuant hereto upon its
execution and delivery by Buyer will constitute (assuming, in each case, the due
and valid authorization, execution and delivery thereof by the other parties
thereto), a valid and legally binding obligation of Buyer, enforceable against
it in accordance with their respective terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other Laws relating to or affecting
the rights and remedies of creditors generally and to general principles of
equity (regardless of whether considered in a Proceeding in equity or at law).
(d) No Violation. Except as disclosed in Schedule 4.3(d), the
execution, delivery and performance by Buyer of this Agreement and the
transactions contemplated hereby, do not and will not conflict with or result
in, with or without the giving of notice or lapse of time or both, any violation
of or constitute a breach or default, or give rise to any right of acceleration,
payment, amendment, cancellation or termination, under (a) the Articles of
Incorporation or Bylaws of Buyer or any resolution adopted by the board of
directors of Buyer and not rescinded, (b) any agreement or other instrument to
which Buyer is a party or by which Buyer or any of its respective properties or
assets is bound, (c) any Order of any Governmental Entity to which Buyer is
bound or subject or (d) any Law applicable to Buyer or any of its respective
properties or assets.
(e) Third Party Approvals. Except for entry of the Sale Order and any
third party approvals as are reflected on Schedule 4.3(e) hereto, the execution,
delivery and performance by Buyer of this Agreement and the transactions
contemplated hereby do not require any consents, waivers, authorizations or
approvals of, or filings with, any third Persons which have not been obtained by
Buyer.
(f) Financing. On the Closing Date, Buyer will have sufficient
unrestricted funds on hand or committed lines of credit to consummate the
transactions contemplated by this Agreement.
ARTICLE V
Covenants and Agreements
5.1 Conduct of Business Pending the Closing.
(a) From the date hereof until the Closing Date, except as otherwise
required or permitted under this Agreement or to the extent otherwise consented
to by Buyer in writing or as required by the Bankruptcy Court or by applicable
Laws, Sellers shall carry on the Business in the ordinary course of business
consistent with past practice. Except as otherwise required or permitted under
this Agreement, without the prior written consent of Buyer or as required by the
Bankruptcy Court or by applicable Laws, Sellers shall not (a) sell, lease or
transfer any Acquired Assets; (b) amend, modify or terminate any Assumed Assets
without prior notice to Buyer (consent not being required); (c) subject any of
the Acquired Assets to any Lien or allow any Lien to exist (other than Liens in
effect at the date hereof and disclosed on Schedule 4.2(e); (d) knowingly take
any action that would cause any of the representations and warranties made by
any Seller in this Agreement not to be true and correct; (e) settle, release or
forgive any claim or litigation or waive any right thereto which relates to the
Acquired Assets (other than any claim or litigation which is an Excluded Asset
or an Excluded Liability); (f) incur any Liabilities other than Excluded
Liabilities; or (g) agree to take any action prohibited hereby.
(b) Except for Buyer's obligations under Section 2.3(d), (e), and (f),
all costs, expenses, liabilities, and claims in connection with all shipments
that were dispatched and delivered prior to the Effective Time, and all revenue
from such shipments shall be for Sellers' account. In addition to Buyer's
obligations under Section 2.3(d), (e), and (f), Buyer shall promptly remit to
Sellers following the Closing, but no later than four (4) days after the
Closing, $0.20 per mile for all loaded miles, whether incurred before or after
the Effective Time, on all shipments that were dispatched prior to the Effective
Time and are still in-transit at the Effective Time, and all revenue from such
shipments shall be for Buyer's account. Buyer shall be responsible for
dispatching and for all costs, expenses, liabilities, and claims in connection
with all shipments dispatched after the Effective Time, and all revenue from
such shipments also shall be for Buyer's account. Any amounts relating to such
post-Effective Time shipments collected by Sellers shall be turned over to Buyer
immediately as received. For assigning risk of loss, Sellers shall be
responsible for any accidents, liabilities, and claims based upon facts
occurring prior to the Effective Time, and Buyer shall be responsible for any
accidents, liabilities, and claims based upon facts occurring after the
Effective Time. For purposes of this Agreement, the "Effective Time" shall be
12:01 a.m. on the Closing Date.
5.2 Access. From the date hereof until the Closing Date, Sellers shall allow
Buyer's employees, agents, and Representatives, during regular business hours to
make such investigation of the Tractors, Trailers, Acquired Assets, operations,
finances, books, records, and contracts as Buyer reasonably deems necessary or
advisable, and Sellers shall instruct their employees, accountants, counsel, and
financial advisors, and other Representatives to cooperate in any such
investigation. If the transaction contemplated herein fails to close, Buyer
shall promptly return to Sellers any and all of Sellers' records delivered to
Buyer in contemplation of the transaction contemplated herein or copies thereof
in Buyer's possession or control. From and after the Closing Date, so long as
any books, records or other files relating to the Acquired Assets or operation
of the Business, to the extent that they pertain to such operations prior to the
Closing Date, remain in existence and available, each party (at its expense)
shall have the right, upon reasonable notice, to inspect and to make copies of
the same at any time during regular business hours for any proper purpose,
including, without limitation, in connection with any third-party claim in
respect of which a party may have Liability hereunder.
5.3 Public Announcements. No party shall issue a press release or otherwise make
any public statements with respect to the transactions contemplated hereby,
except as may be required by Law, by obligations pursuant to any listing
agreement with any national securities exchange or over-the-counter market, or
with respect to filings to be made with the Bankruptcy Court in connection with
this Agreement (in which case the party required to make such public statement
shall notify the other party prior to making such public statement), without the
prior consent of the others, which consent shall not be unreasonably withheld.
5.4 Reasonable Efforts. Upon the terms and subject to the conditions herein
provided, each of the parties hereto shall use its respective commercially
reasonable, good faith efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, and to assist and cooperate with the other parties
hereto in doing, all things necessary, proper or advisable under applicable Laws
and regulations to ensure that the conditions set forth in this Agreement are
satisfied and to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement. Without limiting
the generality of the foregoing, the parties hereto shall furnish to each other
such necessary information and reasonable assistance, as each may request in
connection with Sellers' preparation and filing of applications and motion
papers, including any amendments, in form and substance reasonably satisfactory
to Buyer, needed to obtain Bankruptcy Court approval of the transactions
contemplated by this Agreement, and shall execute any additional instruments
necessary to consummate the transactions contemplated hereby, whether before or
after the Closing.
5.5 Notification of Certain Matters. Sellers shall give prompt notice to Buyer,
and Buyer shall give prompt notice to Sellers, of (a) any notice or other
communication from any Person alleging that the consent of such Person is or may
be required in connection with the transactions contemplated by this Agreement;
(b) any written objection, litigation or Proceeding that challenges the
transactions contemplated hereby or the entry of the Bid Procedures Order or the
Sale Order; (c) the occurrence of any known Material Adverse Change or Material
Adverse Effect; and (d) the breach of any representation, warranty, covenant, or
agreement made herein.
5.6 Employees.
(a) Buyer shall provide the Sellers at Closing a list of the employees
it desires to hire, such determination being made in Buyer's sole and absolute
discretion, and all such persons accepting employment will be considered new
employees of Buyer. Except for Buyer's obligations under Section 2.3(d), (e) and
(f) Buyer shall not assume or have any obligations or Liabilities with respect
to employees of Sellers or termination of such employees. Buyer's agreement to
undertake the obligations of Section 2.3(d), (e) and (f) shall not be construed
to create an employment relationship between Buyer and employees terminated by
Sellers prior to Closing and not hired by Buyer, or obligate Buyer in any
respect other than the specific obligations of such Section 2.3(d), (e) and (f).
(b) Sellers acknowledge and agree that Buyer may interview and discuss
employment terms and issues with employees. Nothing in this Agreement shall be
construed as a commitment or obligation of Buyer to accept for employment, or
otherwise continue the employment of, any of the Sellers' employees.
(c) Except for Buyer's obligations under Section 2.3(d), (e), and (f),
each Seller is responsible for all amounts, benefits, and other obligations
owing employees of any Seller, whether hired by Buyer or not. In the event of
Sellers' failure to comply with the provisions of this Section 5.6(c), the
Purchase Price shall be adjusted accordingly, and in no event shall these
amounts or obligations be included in the Assumed Liabilities. Anything to the
contrary in this Section 5.6(c) notwithstanding, Buyer shall be responsible for
the Employee Administrative Claims.
(d) Except for Buyer's obligations under Section 2.3(d), (e), and (f)
and then only to the limited extent set forth therein, the Sellers acknowledge
and agree that Buyer is not assuming and shall not have any obligations or
Liabilities under any Benefit Plan maintained by Sellers, or for the benefit of
employees of Sellers, including, without limitation, obligations for severance,
accrued benefits, including vacation accrued but not taken as of the Closing
Date, pension plan benefits, or medical coverage.
5.7 Further Assurances On and after the Closing Date, the parties shall take all
appropriate action and shall execute all documents, instruments or conveyances
of any kind that may be reasonably necessary or advisable to carry out any of
the provisions hereof, and Sellers shall take all reasonable steps to put Buyer
in actual possession and operating control of the Business.
5.8 Further Agreements. Sellers authorize and empower Buyer on and after the
Closing Date to receive and to open all mail received by Buyer relating to the
Acquired Assets or the Assumed Liabilities and to deal with the contents of such
communications in any proper manner. Sellers shall promptly deliver to Buyer any
mail or other communication received by any Seller after the Closing Date
pertaining to the Acquired Assets or the Assumed Liabilities. Buyer shall
promptly deliver to Sellers any mail or other communication received by it after
the Closing Date pertaining to the Excluded Assets or any Excluded Liabilities
and any cash, checks or other instruments of payment in respect thereof. From
and after the Closing Date, Sellers shall refer all inquiries with respect to
the Acquired Assets and the Assumed Liabilities to Buyer, and Buyer shall refer
all calls with respect to the Excluded Assets and the Excluded Liabilities to
Sellers.
5.9 Name Change. On the Closing Date, Sellers shall file with their respective
jurisdictions of organization and in all other relevant jurisdictions documents
to change their names to names that are unrelated to the current names and do
not use the words "Simon," "Trucking," or "Transportation."
5.10 Utilities. To the extent practicable, the parties shall notify the gas,
water, telephone, electric utility, and other applicable service companies that
Buyer shall be responsible for the payment of all obligations incurred therefor
on or after the Closing Date with respect to the Acquired Assets and the
operation of the Business. Sellers shall request such companies to cause meters
to be read (or otherwise measure service) as of the Closing Date, and Sellers
shall be responsible for the payment of all charges for such services incurred
and provided through the Closing Date. Sellers shall cause the telephone
companies to render a xxxx for telephone service incurred through the Closing
Date, and Sellers shall be responsible for the payment of such bills. Subject to
the applicable provisions of the Bankruptcy Code, in the event that after the
Closing Date, any provider of phone, gas, water, electric, or other service
seeks payment from Buyer for unpaid service provided to any Seller on or after
February 25, 2002, but prior to the Closing Date, Sellers shall pay such unpaid
amounts as promptly as is required (after reasonable notice from Buyer) to avoid
any discontinuation of utility service to Buyer.
5.11 Proration of Taxes and Certain Charges.
(a) All obligations with respect to the Acquired Assets for any period
that includes the day before the Closing Date and ends after the Closing Date,
including but not limited to real and personal property and similar ad valorem
Taxes, special assessments, the utilities and other matters described in Section
5.10, drop yard rents, and payments under the Assumed Leases (collectively the
"Proration Amounts"), whether imposed or assessed before or after the Closing
Date, shall be prorated between Sellers and Buyer as of 12:01 a.m. on the
Closing Date. If such charges or rates are assessed either based upon time or
for a specified period, such charges or rates shall be prorated as of 12:01 a.m.
on the Closing Date. If such charges or rates are assessed based upon usage of
utility or similar services, such charges shall be prorated based upon meter
readings taken on the Closing Date.
(b) Anything to the contrary notwithstanding, all refunds of unexpired
license plate and tag fees to the extent attributable to the Acquired Assets
shall be for the account of Buyer, and Sellers shall turn over any such amounts
to Buyer immediately upon receipt.
(c) The payment of the Proration Amounts allocated to Seller shall be
subject to Section 3.4(e) hereof.
(d) The prorations pursuant to this Section may be calculated after the
Closing Date, as each item to be prorated (including without limitation any such
Tax, obligation, assessment, charge, refund, reimbursement, rent installment,
fee or revenue) accrues or comes due, provided that, in any event, any such
proration shall be calculated not later than thirty (30) days after the party
requesting proration of any item obtains the information required to calculate
such proration of such item.
5.12 Bankruptcy Court Approvals.
(a) Sellers have filed the Procedures Motion with the Bankruptcy Court
and shall use reasonable efforts to obtain entry of an order (the "Bid
Procedures Order") (i) fixing the time, date, and location of the Sale Hearing
to approve Sellers' consummation of this Agreement and an auction (the
"Auction") at which higher and better offers to purchase the Acquired Assets may
be presented to Sellers by third parties ("Competing Transactions"); (ii)
approving the form of bidding, auction and sale notice; (iii) providing that
upon (y) Sellers' failure to accept this Agreement on substantially the terms
set forth herein, or (z) their agreement to or consummation of a Competing
Transaction, Buyer shall be entitled to reimbursement of its out-of-pocket
expenses, up to a maximum of $250,000, related to due diligence, bid analysis,
negotiation, preparation of this Agreement, and other related matters (the
"Expense Reimbursement"), subject to court approval after notice and hearing;
(iv) providing that if a Competing Transaction is subsequently approved by the
Bankruptcy Court and closes as provided by its terms, then Buyer shall be
entitled to receive from Sellers a flat fee payment of $50,000 in immediately
available funds (the "Break-Up Fee"; the Expense Reimbursement and Break-Up Fee,
together, the "Bid Fees"), which payment of the Break-Up Fee shall be made to
Buyer concurrently with the consummation of such third party sale; and (v)
providing that no third party bidder shall be entitled to purchase the Acquired
Assets unless such third party bidder offers to purchase assets comparable to
the Acquired Assets for no less than the sum of the Purchase Price plus the Bid
Fees and $100,000. Should overbidding take place, Buyer shall have the right,
but not the obligation, to participate in the overbidding and to be approved as
the overbidder at the Sale Hearing based upon Buyer's submission of the highest
and best offer to purchase the Acquired Assets and Sellers' acceptance of such
overbid.
(b) Sellers have filed the Sale Motion with the Bankruptcy Court and
shall use reasonable efforts to obtain entry of an order (the "Sale Order") in
form and content reasonably acceptable to Buyer that, among other things: (i)
makes a finding that those matters which are the subject of this Agreement, are
"core" matters over which the Bankruptcy Court has jurisdiction pursuant to 28
U.S.C. Sections 1334 and 157; (ii) makes a finding that due and proper notice of
the transactions contemplated by this Agreement and any ancillary agreements has
been given to creditors, shareholders, potential claimants, and other parties in
interest; (iii) makes a finding that the Purchase Price constitutes fair value
for the Acquired Assets; (iv) makes a finding that the Acquired Assets are being
purchased by Buyer in good faith and that the Purchase Price was not controlled
by an agreement among potential bidders and otherwise complies with the
requirements of 11 U.S.C. Section 363(m); (v) makes a finding that this
Agreement was negotiated, proposed and entered into by the parties without
collusion, in good faith, and from arm's length bargaining positions; (vi) makes
a finding that "sound business reasons" exist for Bankruptcy Court approval of
this Agreement; (vii) makes a finding that this Agreement and the transactions
and instruments contemplated hereby shall be specifically performable and
enforceable against and binding upon, and not subject to rejection or avoidance
by, Sellers or any Chapter 7 or Chapter 11 trustee; (viii) makes a finding that
Buyer is not a successor corporation to any of the Sellers and is not liable for
any obligations or Liabilities of Sellers (including any administrative
expenses) except for those expressly assumed by Buyer under this Agreement; (ix)
approves this Agreement and provides that, except for the Assumed Liabilities,
the Acquired Assets are to be conveyed to Buyer free and clear of any and all
interest in such Acquired Assets, including, but not limited to, Tax Liens,
mortgages, Liens, security interests, encumbrances, claims (including third
party claims of any nature whatsoever, including, but not limited to, any claim
which might otherwise give rise to successor liability), restrictions, and
limitations; (x) provides that Buyer is not acquiring or assuming any of
Sellers' or any other Person's Liabilities except as expressly provided in this
Agreement; (xi) provides that Buyer shall not be liable or obligated for any
Liabilities (including successor liabilities), Liens, interests, damages, costs,
expenses, claims, or demands arising from or relating to Sellers' ownership or
operation of the Acquired Assets or Sellers' conduct of the Business prior to
the Closing Date or Taxes arising out of the sale of the Acquired Assets; (xii)
provides that any and all leases and contracts assumed by Buyer pursuant to this
Agreement shall be assumed pursuant to Section 365 of the Bankruptcy Code;
(xiii) provides that the Bankruptcy Court shall retain jurisdiction to resolve
any controversy or claim arising out of or relating to this Agreement; (xiv)
directs the clerk of the Bankruptcy Court to enter the Sale Order on the docket
and provide that there is no just reason to delay entry of the Sale Order; and
(xv) specifically overrules objections, if any, to confirmation of the sale.
(c) After entry of the Sale Order, Sellers shall comply with and
discharge their obligations arising under the Sale Order, including, without
limitation, Sellers' obligation to file any notice with respect to, or to take
any action necessary to effect, the assumption and assignment of the Assumed
Assets under the terms of the Sale Order and consistent with Section 365 of the
Bankruptcy Code and this Agreement. Without limiting the generality of the
foregoing, Sellers shall serve a notice upon each counterparty to an Assumed
Asset in the time and manner required by the Sale Order and shall use
commercially reasonable efforts to ensure the timely assumption and assignment
of the Assumed Assets to Buyer.
5.13 Bulk Sales. Each of the parties hereto waives compliance with any
applicable provisions of the Uniform Commercial Code Article 6 (Bulk Sales or
Bulk Transfers) or analogous provisions of law, as adopted in the states in
which the Business is conducted as such provisions may apply to the transactions
contemplated by this Agreement; provided, however, Sellers shall indemnify Buyer
for any third party claims of non-compliance with Bulk Sales or Bulk Transfers
Laws.
5.14 Transfer of Licenses and Authorities. Sellers shall use reasonable efforts
to cooperate with Buyer, including executing such documents as Buyer shall
reasonably request, in order to effectuate the transfer of the Licenses and
Authorities to Buyer and/or to assist Buyer in obtaining the issuances of
substitute Licenses and Authorities for the operation of the Acquired Assets and
the Business.
5.15 Rejected Contracts. No Seller shall reject any Assumed Contract
or Assumed Lease without the prior notice to, and consultation with, Buyer
(consent not being required).
5.16 Removal of Excluded Assets. Subject to the provisions of Section 5.18,
within a reasonable period of time, but in no event more than 120 days after the
Closing Date, Sellers shall remove all Excluded Assets from locations
constituting part of the Acquired Assets.
5.17 Disclosure Supplements. From time to time prior to the Closing, Sellers
shall supplement the schedules hereto with respect to any matter hereafter
arising or any information obtained after the date hereof of which, if existing,
occurring or known at or prior to the date of this Agreement, would have been
required to be set forth or described in the schedules, or which is necessary to
complete or correct any information in such schedule or in any representation
and warranty of Sellers which has been rendered inaccurate thereby. For purposes
of determining the satisfaction of the conditions set forth in Article VI
hereof, no such supplement or amendment shall be considered.
5.18 Transition Services. From and after the Closing Date, Buyer shall be
willing, if requested, to enter into one or more service agreements with
Sellers, or the estate, or the creditors, as applicable on reasonable and
mutually agreeable terms and conditions, to offer any of the services generally
described below:
(a) Buyer shall assist lessors of Rejected Equipment with identifying,
locating, and recovering such Rejected Equipment. Any movement of Rejected
Equipment by Buyer will be at a rate of $1.25 per mile (all miles) to one of
Buyer's terminal facilities or any other destination acceptable to both Buyer
and such lessor. Buyer may transport freight in such Rejected Equipment while it
is being returned, and any revenue generated thereby shall be for the account of
Buyer. The movement of any Rejected Equipment shall be coordinated by Buyer, in
its sole discretion, so as not to disrupt the Buyer's equipment balance and
position. Lessors of the Rejected Equipment will be responsible for all
insurance coverage and risk of loss to the Rejected Equipment. Nothing in this
Section 5.18(a) shall be construed to obligate Sellers in any respect.
(b) Buyer shall afford Representatives of Sellers and counsel for the
unsecured creditors' committee and their agents and employees, with access
during normal business hours to Sellers' books and records relating to the
ninety days prior to the first filing of the Case in respect of general accounts
payable, and four years prior to the first filing of the Case in respect of
accounts payable relating to potential Chapter 5 amounts, other than the Claims,
and shall copy such books and records without charge for such parties. Buyer
shall provide such parties the right to use without charge, a reasonable amount
of unused office space at the Headquarters building and, as available and not
being used by Buyer, office equipment, for 120 days after the Closing. Any
individuals taking advantage of such unused office space shall be covered by
their own insurance (or their employer's), and Buyer shall not be liable for
anything other than its own negligence.
(c) Buyer shall afford Representatives of Sellers and counsel for the
unsecured creditors' committee and their agents and employees, ingress, egress,
and parking rights at designated locations for up to 120 days after the Closing
for the purpose of assembling, storing, and if necessary auctioning Excluded
Assets, all to be conducted in a manner that does not interfere with the Buyer's
business operations. The fee for such rights will be $10.00 per day per Excluded
Asset payable weekly and in any event prior to removal of such Excluded Asset
from the premises. The owners of the Excluded Assets shall have sole
responsibility for insurance and risk of loss. Nothing in this Section 5.18(c)
shall be construed to obligate Sellers in any respect.
(d) The Buyer will afford Representatives of Sellers and counsel for
the unsecured creditors' committee and their agents and employees, access to the
Buyer's employees on a dedicated or as needed basis for up to 120 days after the
Closing, to the extent that such access does not unreasonably interfere with the
operation of Buyer's business. For Xxxx Xxxxxx and Xxx Xxxxxx any time in excess
of five hours per week (not to include time regarding consultation on the RLI
Excluded Asset) shall be with the written consent of Xxx Xxxxxxxx, which Xx.
Xxxxxxxx may give in his sole and absolute discretion. The charge for such
access will be an amount equal to twice the hourly pay rate of the subject
employees, or a pro-rated amount of such person's salary and stay bonus, if any,
in the event of a salaried employee, based upon a forty hour work week. Anything
to the contrary notwithstanding, the Sellers' estate shall not be charged for
the first ten hours per calendar month of time (not to include time regarding
the RLI Excluded Asset) for each of Xx. Xxxxxx and Xx. Xxxxxx; provided, if a
Rule 2004 exam request of Xx. Xxxxxx or Xx. Xxxxxx is made by the unsecured
creditors' committee or the Sellers' estate, any and all prior free hours of
time shall be due and payable to Buyer immediately, based upon the pro-rated
salary and bonus amount previously described, and there shall be no entitlement
to any future free time following such a Rule 2004 exam request.
5.19 RLI Insurance Company. The parties acknowledge that Sellers shall control
all judicial, settlement, proceedings, and matters relating to the RLI Excluded
Asset and be responsible for all related costs; provided, Sellers shall consult
with Buyer and its counsel on all such matters, copy Buyer's counsel on all
pleadings, correspondence, and written or electronic communications relating
thereto, and must obtain the approval of Buyer of any settlement or other
material matter impacting such Excluded Asset.
5.20 Carve Outs. The Chapter 7 Carve Out shall be maintained by Sellers in a
segregated account until the later to occur of confirmation of a liquidating
plan in the Case or conversion of the Case to a Chapter 7, at which time any
remaining balance of the Chapter 7 Carve Out shall be returned to Sellers. The
parties agree that the obligations of CitiCapital and Xxxxx Xxxxx under the Cash
Collateral Agreement, and Xxxxx Xxxxx under the DIP Credit Agreement shall be
removed in their entirety as of the Closing Date, and Sellers through the
procedures outlined in this Section 5.20 shall be obligated to fund any
applicable Chapter 7 Carve Out. The CitiCapital Carve Out shall be maintained by
CitiCapital in a segregated interest-bearing account, and may be drawn on by
CitiCapital from time-to-time. The remaining balance of the CitiCapital Carve
Out, plus accrued interest, shall be delivered to Sellers upon the later to
occur of confirmation of a liquidating plan in the Case or conversion of the
Case to a Chapter 7.
ARTICLE VI
Conditions To Closing
6.1 Conditions Precedent to Obligations of Sellers and Buyer. Sellers' and
Buyer's obligations to consummate the transactions contemplated hereby and make
their respective deliveries as set forth in Section 3.2 on the Closing Date
shall be subject to the satisfaction or waiver of the following conditions:
(a) no action, suit or other Proceedings shall be pending before any
court, tribunal or Governmental Entity seeking or threatening to restrain or
prohibit the consummation of the transactions contemplated by this Agreement, or
seeking to obtain substantial damages in respect thereof, or involving a claim
that consummation thereof would result in the violation of any Law, decree or
regulation or any Governmental Entity having appropriate jurisdiction;
(b) the Bankruptcy Court shall have entered the Bid Procedures Order in
accordance with Section 5.12(a) hereof and the Sale Order in accordance with
Section 5.12(b) hereof, and the Sale Order shall not have been stayed, modified,
amended, dissolved, revoked or rescinded in any material way, as of the Closing
Date; and
(c) the Case shall not have been dismissed or converted to a Chapter 7
bankruptcy and a trustee or examiner shall not have been appointed pursuant to
provisions of the Bankruptcy Code.
6.2 Conditions Precedent to Sellers' Obligation. Sellers' obligation to
consummate the transactions contemplated hereby and make the deliveries required
of Sellers in Section 3.2(a) of this Agreement on the Closing Date shall be
subject to the satisfaction or waiver by Sellers of each of the following
conditions:
(a) all of the representations and warranties of Buyer contained in
Section 4.3 shall continue to be true and correct as of the Closing Date in all
material respects, all covenants and obligations to be performed by Buyer on or
prior to the Closing Date shall have been performed in all material respects,
and Buyer shall have certified the foregoing to Sellers in writing; and
(b) Buyer shall have executed and delivered to Sellers such instruments
as are deemed necessary or appropriate to effectuate the assumption of the
Assumed Liabilities and such other documents, instruments and certificates as
Sellers or their counsel may have reasonably requested.
6.3 Conditions Precedent to Buyer's Obligation. Buyer's obligation to consummate
the transactions contemplated hereby and make the deliveries required of Buyer
in Section 3.2(b) of this Agreement on the Closing Date shall be subject to the
satisfaction or waiver by Buyer of each of the following conditions:
(a) all of the representations and warranties of Sellers contained in
Section 4.2 shall continue to be true and correct on the Closing Date in all
material respects, all covenants and obligations to be performed by Sellers on
or prior to the Closing Date shall have been performed in all material respects,
and Sellers shall have certified the foregoing to Buyer in writing;
(b) Sellers shall have executed and delivered to Buyer such instruments
as are deemed necessary or appropriate to effectuate the transfer of the
Acquired Assets to Buyer and such other documents, instruments and certificates
as Buyer or its counsel may have reaonably requested; and
(c) Sellers shall have delivered to Buyer at or prior to the Closing
title commitments (the "Title Commitments") and pro forma title insurance
policies issued by a reputable title insurance company for each of the
Headquarters, the Atlanta Terminal, the Fontana Terminal, the Rupert Drop Yard,
and the Springville Drop Yard pursuant to which the title company agrees to
issue to Buyer an owner's policy of title insurance on each of the Headquarters,
the Atlanta Terminal, the Fontana Terminal, the Rupert Drop Yard, and the
Springville Drop Yard for the fair market value of each (the "Title Policies").
The Title Policies shall identify Buyer as the insured, accurately describe the
Headquarters, the Atlanta Terminal, the Fontana Terminal, the Rupert Drop Yard,
and the Springville Drop Yard, respectively, and insure that upon Closing Buyer
shall have marketable fee simple title in each such property, subject only to
those covenants, conditions, restrictions, rights-of-way, and easements of
record reflected on Schedule B of the Title Commitments that are acceptable to
Buyer.
6.4 Waiver. No waiver by Sellers or Buyer of any of the conditions set forth in
this Article VI shall be effective unless the same is stated in writing and
signed by the waiving party; provided, however, that a consent of a party to the
Closing shall constitute a waiver by such party of any conditions to Closing not
satisfied as of the Closing.
ARTICLE VII
Intentionally Omitted
ARTICLE VIII
Termination
8.1 Termination of Agreement. This Agreement may be terminated and the
transactions contemplated hereby abandoned at any time prior to the Closing:
(a) By mutual written consent of Buyer and Sellers;
(b) By any party if the Closing shall not have occurred on or prior to
April 29, 2002; provided, however, that, if the Closing shall not have occurred
due to the failure of the Bankruptcy Court to enter the Sale Order and if all
other conditions to the respective obligations of the parties to close hereunder
that are capable of being fulfilled by April 29, 2002 shall have been so
fulfilled or waived, then neither party may terminate this Agreement prior to
May 10, 2002; provided, further, however, that if the Closing shall not have
occurred on or before any such date due to a breach of this Agreement by Buyer
or Sellers, the breaching party may not terminate this Agreement pursuant to
this Section 8.1(b);
(c) By any party not in breach of this Agreement, if there shall be any
Law or regulation that makes the consummation of the transactions contemplated
hereby illegal or otherwise prohibited or if consummation of the transactions
contemplated hereby would violate any nonappealable final order, decree or
Judgment of any court or governmental body having competent jurisdiction;
(d) By any party if Sellers (i) fail to accept this Agreement on
substantially the terms and conditions set forth herein, (ii) select any other
bidder as the winning bid at auction, or (iii) agree to or consummate a
Competing Transaction, subject to the limitations set forth in Section 5.12(a)
and in the Bid Procedures Order, including, without limitation, Buyer's right to
receive the Bid Fees; or
(e) By Sellers, on the one hand, or Buyer, on the other, if Buyer or
Sellers, as the case may be, materially breach any of its representations or
warranties or covenants or other obligations under this Agreement, unless such
breach shall be cured within ten (10) Business Days after such other party shall
have received notice of such breach in accordance with the terms hereof.
8.2 No Liabilities in Event of Termination. In the event of any termination of
the Agreement pursuant to Section 8.1, written notice thereof shall forthwith be
given to the other party specifying the provision hereof pursuant to which such
termination is made, this Agreement shall forthwith become wholly void and of no
further force and effect, and there shall be no liability on the part of Buyer
or Sellers, except (i) the obligations of Sellers and Buyer under Sections 9.1
shall remain in full force and effect, (ii) if this Agreement shall be
terminated pursuant to Section 8.1(d) hereof, the Buyer shall be entitled to
receive the Bid Fees, (iii) if this Agreement shall be terminated pursuant to
Section 8.1(e) hereof, the breaching party shall remain liable to the
non-breaching party for costs, expenses and damages incurred by its breach, and
(iv) as otherwise provided in the Bid Procedures Order.
ARTICLE IX
Miscellaneous
9.1 Costs and Expenses; Fees. Except as provided in Sections 8.1(d) and 8.1(e)
or in the Bid Procedures Order, each party shall be solely responsible for and
bear all of its own respective expenses incurred at any time in connection with
pursuing or consummating this Agreement and the transactions contemplated by
this Agreement, including, but not limited to, fees and expenses of business
brokers, legal counsel, accountants, and other facilitators and advisors.
9.2 Survival of Representations and Warranties. The representations and
warranties of the Sellers and Buyer contained in this Agreement or in any
agreement delivered or in connection herewith shall not survive the Closing.
9.3 Assignment. Neither this Agreement nor any of the rights or obligations
hereunder may be assigned by Sellers without the prior written consent of Buyer,
or by Buyer without the prior written consent of Sellers; provided, however,
that, Buyer may assign its rights and obligations hereunder, in whole or in
part, to any Affiliate of Buyer, provided that no such assignment shall relieve
Buyer of its Liabilities and obligations hereunder if such assignee does not
perform such obligations. Subject to the foregoing, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, and except as otherwise expressly provided herein, no
other Person shall have any right, benefit or obligation hereunder.
9.4 Parties in Interest. This Agreement shall be binding upon and inure solely
to the benefit of Sellers and Buyer, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other Person any rights,
benefits or remedies of any nature whatsoever under or by reason of this
Agreement. Without limiting the foregoing, no direct or indirect holder of any
equity interests or securities of either Sellers or Buyer (whether such holder
is a limited or general partner, member, stockholder or otherwise), nor any
Affiliate of either Sellers or Buyer, nor any director, officer, employee,
Representative, agent or other controlling Person of each of the parties hereto
and their respective Affiliates shall have any Liabilities or obligations
arising under this Agreement or the transactions contemplated thereby.
9.5 Notices. Any notice, request, demand, waiver, consent, approval, or other
communication which is required or permitted hereunder shall be in writing and
shall be deemed given only if delivered personally (including by nationally
recognized overnight courier service) or sent by telegram or by certified mail,
postage prepaid, and sent by telecopier as follows:
If to Buyer, to: Central Refrigerated Service, Inc.
0000 Xxxx Xxxx Xx.
Xxxx, Xxxxx 00000
(000) 000-0000 Telephone
(000) 000-0000 Fax
Attn: Xxxxx Xxxxx
With a required copy to: Xxxxxxx Law Firm, P.C., L.L.O.
000 X. 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
(000) 000-0000 Telephone
(000) 000-0000 Fax
Attn: Xxxxx Xxxxxxx-Xxxxxx
and: Stoel Rives LLP
One Utah Center
000 Xxxxx Xxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
(000) 000-0000 Telephone
(000) 000-0000 Fax
Attn: Xxxxx X. Xxxxx
If to Sellers, to: Simon Transportation Services Inc.
0000 Xxxx 0000 Xxxxx
Xxxx Xxxxxx Xxxx, XX 00000-0000
(000) 000-0000 Telephone
(000) 000-0000 Fax
Attn: Xxx Xxxxxx
With a required copy to: Xxxxxxx Xxxx Xxxxx & Xxxxxx
0000 Xxxxxxxx Xxxx Xxxx.
0000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000-0000
(000) 000-0000 Telephone
(000) 000-0000 Fax
Attn: Xxxxx X. Xxxxxxxxx
or to such other address as the addressee shall have specified in a notice duly
given to the sender as provided herein. Such notice, request, demand, waiver,
consent, approval, or other communication shall be deemed to have been given as
of the date so personally delivered, telegraphed, or deposited in the mail and
telecopied, with confirmation of receipt.
9.6 Choice of Law. This Agreement shall be construed and interpreted, and the
rights of the parties shall be determined, in accordance with the Bankruptcy
Code and the substantive Laws of the State of Utah, except that any provisions
contained herein relating to the conveyance of interests in real property shall
be governed by the substantive laws of the state in which the real property is
located, in each case without regard to the conflict of law principles thereof
or of any other jurisdiction.
9.7 Entire Agreement; Amendments and Waivers. This Agreement constitutes the
entire agreement between the parties pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations, and discussions,
whether oral or written, of the parties. Except as set forth herein or in any
certificate delivered pursuant hereto, no party (or any employee or agent
thereof) makes any representation or warranty, express or implied, to any other
party with respect to this Agreement or the transactions contemplated hereby. No
supplement, modification or waiver of this Agreement (including, without
limitation, any schedule hereto) shall be binding unless the same is executed in
writing by all parties. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provision hereof
(whether or not similar), and no such waiver shall constitute a continuing
waiver unless otherwise expressly provided.
9.8 Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Delivery of an executed counterpart of a
signature page to this Agreement by telecopy shall be as effective as delivery
of a manually executed counterpart of this Agreement. In proving this Agreement,
it shall not be necessary to produce or account for more than one such
counterpart signed by the party against whom enforcement is sought.
9.9 Invalidity. If any one or more of the provisions contained in this Agreement
(other than any of the provisions contained in Article II or Article III hereof)
or in any other instrument referred to herein, shall, for any reason, be held to
be invalid, illegal or unenforceable in any respect, the parties shall use their
reasonable efforts, including, but not limited to, the amendment of this
Agreement, to ensure that this Agreement shall reflect as closely as practicable
the intent of the parties hereto on the date hereof.
9.10 Headings. The table of contents and the headings of the Articles and
Sections herein are inserted for convenience of reference only and are not
intended to be a part of, or to affect the meaning or interpretation of, this
Agreement.
9.11 Exclusive Jurisdiction. Without limiting any party's right to appeal any
order of the Bankruptcy Court, (a) the Bankruptcy Court shall retain exclusive
jurisdiction to enforce the terms of this Agreement and to decide any claims or
disputes which may arise or result from, or be connected with, this Agreement,
any breach or default hereunder, or the transactions contemplated hereby, and
(b) any and all claims, actions, causes of action, suits and Proceedings related
to the foregoing shall be filed and maintained only in the Bankruptcy Court, and
the parties hereby consent to and submit to the jurisdiction and venue of the
Bankruptcy Court and shall receive notices at such locations as indicated in
Section 9.5 hereof.
9.12 Waiver of Right to Trial by Jury. Each party to this Agreement waives any
right to trial by jury in any action, matter or Proceeding regarding this
Agreement or any provision hereof.
9.13 Beneficiaries. Nothing in this Agreement, expressed or implied, is intended
to confer upon any other Person any rights or remedies of any nature under or by
reason of this Agreement, except as expressly provided herein.
9.14 Specific Performance. Each of the parties hereto acknowledges that the
other party hereto would be irreparably damaged in the event any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, each of the parties
hereto shall be entitled to an injunction or injunctions to prevent breaches of
the provisions of this Agreement and to enforce specifically this Agreement and
the terms and provisions thereof in any action instituted in any court of the
United States or any state thereof having subject matter jurisdiction, in
addition to any other remedy to which the parties may be entitled, at law, in
equity or pursuant to this Agreement.
9.15 Counting. If the due date for any action to be taken under this Agreement
(including, without limitation, the delivery of notices) is not a Business Day,
then such action shall be considered timely taken if performed on or prior to
the next Business Day following such due date.
9.16 Service of Process. Each party irrevocably consents to the service of
process in any action or Proceeding by receipt of mailed copies thereof by
national courier service or registered United States mail, postage prepaid,
return receipt requested, to its address as specified in or pursuant to Section
9.5 hereof. However, the foregoing shall not limit the right of a party to
effect service of process on the other party by any other legally available
method.
9.17 Time of Essence. With regard to all dates and time periods set
forth or referred to in this Agreement, time is of the essence.
9.18 Interpretation.
(a) Whenever the words "include," "includes" or "including" are used in
this Agreement they shall be deemed to be followed by the words "without
limitation."
(b) Words denoting any gender shall include all genders. Where a word
or phrase is defined herein, each of its other grammatical forms shall have a
corresponding meaning.
(c) A reference to any party to this Agreement or any other agreement
or document shall include such party's successors and permitted assigns.
(d) A reference to any legislation or to any provision of any
legislation shall include any modification or re-enactment thereof, any
legislative provision substituted therefor and all regulations and statutory
instruments issued thereunder or pursuant thereto.
(e) All references to $ and dollars shall be deemed to refer to United
States currency unless otherwise specifically provided.
(f) All references to any financial or accounting terms shall be
defined in accordance with United States Generally Accepted Accounting
Principles.
9.19 Preparation of this Agreement. Buyer and Sellers hereby acknowledge that
(i) Buyer and Sellers jointly and equally participated in the drafting of this
Agreement and all other agreements contemplated hereby, (ii) both Buyer and
Sellers have been adequately represented and advised by legal counsel with
respect to this Agreement and the transactions contemplated hereby, and (iii) no
presumption shall be made that any provision of this Agreement shall be
construed against either party by reason of such role in the drafting of this
Agreement and any other agreement contemplated hereby.
* * * * * * * * * * * * * * *
Signature Page Follows
* * * * * * * * * * * * * * *
Signature Page to Amended and Restated Asset Purchase Agreement
by and among Central Refrigerated Service, Inc.,
Simon Transportation Services Inc., Xxxx Xxxxx Trucking, Inc.,
and Simon Terminal, LLC
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officers of Sellers and Buyer as of the date first above
written.
SELLERS: BUYER:
SIMON TRANSPORTATION SERVICES INC., CENTRAL REFRIGERATED SERVICE, INC.,
a Nevada corporation a Nebraska corporation
By:___________________________ By:___________________________
Xxx Xxxxxxxx, Chief Executive Officer Xxxxx Xxxxx, President
XXXX XXXXX TRUCKING, INC.,
a Utah corporation
By:___________________________
Xxx Xxxxxxxx, President
SIMON TERMINAL, LLC,
an Arizona limited liability company
By:___________________________
Xxx Xxxxxxxx, President of Xxxx Xxxxx Trucking, Inc.,
the Sole Member
Index
To
Schedules
Schedule 2.1(a) Tractor Leases
Schedule 2.1(b) Trailer Leases
Schedule 2.1(c) IEL Leases
Schedule 2.1(d) Miscellaneous Leases
Schedule2.1(e) Fixed Assets
Schedule 2.1(g) Assumed Contracts
Schedule 2.1(j) Owned Equipment
Schedule 2.1(m) Intellectual Property
Schedule 2.2(k) Other Excluded Assets
Schedule 2.5 Owner Operator Settlement Withholdings
Schedule 3.4(a) Reference Balance Sheet
Schedule 3.4(b) Adjustment Assets
Schedule 3.4(k) Adjustments as of March 31, 2002
Schedule 4.2(a) Existence & Good Standing
Schedule 4.2(c) Sellers' Violations
Schedule 4.2(d) Sellers' Third Party Approvals
Schedule 4.2(e) Sellers' Assets
Schedule 4.2(k) Compliance with Laws, Permits
Schedule 4.2(l) Environment, Health and Safety
Schedule 4.2(m) Benefit Plans
Schedule 4.2(n) Employment Agreements
Schedule 4.2(o) Unemployment Contributions
Schedule 4.2(p) Salaries, Employment Taxes, and Owner-Operator Settlements
Schedule 4.2(q) Taxes
Schedule 4.3(d) Buyer's Violations
Schedule 4.3(e) Buyer's Third Party Approvals
