ASSET PURCHASE AGREEMENT
Exhibit 10.1
This Asset Purchase Agreement (the "Agreement") is entered into on the 2nd day of August, 2007 (the "Closing Date"), and shall be effective as of the 1st day of September, 2007 (the "Effective Date"), by and between INDUSTRIAL LOGISTIC SERVICES, LLC, ("Seller"), a limited liability company organized and existing under the laws of the Commonwealth of Kentucky, and INDUSTRIAL SERVICES OF AMERICA, INC., a Florida corporation with its principle place of business located at 0000 Xxxxx Xxxx, Xxxxxxxx #0, Xxxxxxxxxx, Xxxxxxxx 00000 ("Buyer"). Both businesses have their principal place of business located in Louisville, Jefferson County, Kentucky.
WITNESSES
The Seller has been engaged in the business of scrap metal and waste transportation (the "Business"), and the Seller desires to sell or otherwise transfer to the Buyer certain of the Seller's assets used in or related to the Business, and which are described on Exhibit A, which is attached hereto and incorporated herein by reference (the "Transferred Assets"); and
The Buyer desires to purchase such Transferred Assets on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
1. Transfer of Assets. Subject to the terms and conditions of this Agreement, the Seller shall transfer to Buyer all right, title and interest of the Seller of whatever kind and nature, tangible or intangible, in and to the Transferred Assets. The Seller shall have no obligation to transfer the certificates of title to the vehicles described on Exhibit A until it shall have received the entire amount of the Purchase Price described in Section 2 below (less any payments made to First Capital (as hereinafter defined) by Buyer pursuant to Section 3 below); provided, however, that the Buyer shall have the right to possess, operate and use the Transferred Assets beginning as of the Effective Date.
2. Consideration for Transferred Assets. In consideration of the sale of the Transferred Assets for One Million One Hundred Ten Thousand and Forty Dollars ($1,110,040) and subject to Section 3 below, the Buyer shall make the following payments to the Seller (collectively, the "Purchase Price"): (i) an initial payment of One Hundred Thousand Dollars ($100,000) shall be delivered to the Seller on the Closing Date by check or other methods agreed upon by the parties, and (ii) an aggregate amount of One Million Two Hundred Thousand Dollars ($1,200,000) shall be paid in sixty (60) equal installments of Twenty Thousand Dollars ($20,000) each (each a "Monthly Payment"), by check or other method mutually agreed upon by the parties. The first installment payment described in subsection (ii) of this Section 2 shall be due on the Effective Date, with the remaining fifty-nine (59) installments being made by Buyer to the Seller on the first business day of each month thereafter. It is understood and agreed by the parties that the installment payment amounts described in subsection (ii) of this Section 2 are inclusive of interest calculated at the rate of seven percent (7%) per annum.
3. Liens, Taxes, Assessments and Licenses. Except for the first priority lien on the Transferred Assets in favor of First Capital Bank of Kentucky ("First Capital"), the Seller warrants and covenants that it is transferring to the Buyer the Transferred Assets free and clear of all levies, taxes and other encumbrances. Seller agrees to pay to First Capital the scheduled monthly payments in connection with the indebtedness secured by such first priority lien (the "Debt"). Seller agrees to deliver or cause to be delivered promptly to Buyer any notice of a default or event of default Seller receives from First Capital in connection with the Debt. In the event that Seller fails to make any First Capital monthly payment(s), Buyer shall have the right to make such First Capital monthly payment(s) directly to First Capital, and Buyer shall further have the right to make a proportionate reduction to the amount of the corresponding Monthly Payment owed to Seller for the periods that Buyer makes such payments directly to First Capital. Once the Debt has been paid in full, Seller shall transfer all certificates of title to the vehicles that are being transferred hereunder and which secure the Debt. Beginning on the Effective Date, the Buyer shall obtain all permits and licenses, if any, necessary for the operation and utilization of the Transferred Assets, and shall execute any governmental forms necessary to transfer any of the Transferred Assets. The Buyer shall pay, or reimburse to the Seller forthwith, any transfer fee or tax related to such Transferred Assets.
4. Representations. The Buyer represents that it is a corporation, duly organized under the laws of the State of Florida, that it has the power and authority to enter into this Agreement and that the individual executing this Agreement is expressly authorized to do so by the Buyer's Board of Directors. The Seller represents that it is a limited liability company, duly organized under the laws of the Commonwealth of Kentucky, that it has the power and authority to enter into this Agreement and that the individual executing this Agreement is expressly authorized to do so by the Seller's managing member(s).
5. Warranties. Both parties hereby agree that they are intimately familiar with Seller's business and that the Transferred Assets sold to Buyer are "AS IS", with no warranties, except as to title and fitness for a particular purpose under the Uniform Commercial Code of the Commonwealth of Kentucky.
6. Entire Agreement and Amendments. This Agreement constitutes the entire agreement and understanding between the parties relating to the subject matter hereof and supersedes and preempts any prior understanding, agreements or representations by or between the parties, written or oral, which may have related to the subject matter hereof in any way. This Agreement shall not be modified, amended, or altered or changed except by a written agreement signed by the parties sought to be charged.
7. Notices. All notices which are to be given under this Agreement shall be made in writing and mailed to the other party at the address set forth herein or such address as such party may provide in writing from time to time. Any notice mailed to such address shall be effective when deposited in a United States Mail Depository duly addresses with postage prepaid.
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If to the Seller: |
To the Seller's last known address as set forth in the Buyer's records. |
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With a Copy to: |
Xxxxxx X. Xxxxx, Xx. 0000 Xxx XxXxxxxx Xxxx, Xxxxx 0 Xxxxxxxxxx, XX 00000 |
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If to the Company: |
Industrial Services of America, Inc. 0000 Xxxxx Xxxx Xxxxxxxxxx, XX 00000 Attention: Xxxxx Xxxxxx |
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With a Copy to: |
Xxxxx X. Xxxxxxxx Xxxxx X. Xxxxxxxx & Associates, PLLC 000 Xxxxx Xxxxxx Xxxxxx Xxxxxx Building, Suite 1450 Xxxxxxxxxx, XX 00000 |
8. Headings. Heading in this Agreement are for convenience only and shall not be used to interpret or construe its provisions.
9. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the Commonwealth of Kentucky.
10. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed and original but all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF the parties hereto have executed this Agreement on the Closing Date, and effective as of the Effective Date.
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BUYER: |
SELLER: |
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INDUSTRIAL SERVICES OF AMERICA, |
INDUSTRIAL LOGISTIC SERVICES, INC. |
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By: |
/s/ Xxxxx Xxxxxxx |
By: |
/s/ Xxxxx Xxxxxxx |
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Title: |
CEO |
Title: |
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The Board of Directors of INDUSTRIAL SERVICES OF AMERICA, INC. does hereby authorize and ratify the execution of the Asset Purchase Agreement by a duly authorized representative of the corporation this 2nd day of August 2007.
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/s/ Xxxxx Xxxxxxx |
/s/ Xxxxx Xxxxxx |
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Xxxxx Xxxxxxx, Chairman |
Xxxxx Xxxxxx, Vice Chairman |
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/s/ Xxxxxxx Xxxxxxxx |
/s/ Xxxxx Xxxxxxxx |
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Xxxxxxx Xxxxxxxx |
Xxxxx Xxxxxxxx |
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/s/ Xxxxxx Xxxxx |
||
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Xxxxxx Xxxxx |
EXHIBIT A
Transferred Assets
See attached
|
ILS TRUCK # |
Description |
VIN # |
XXXXX XX. |
TYPE |
Original Purchase Price |
Appraised |
08/02/07 |
|
|
|
|
|
|
|
|
|
|
2 |
2000 KENWORTH T800 |
0XXXX00X0XX000000 |
73,280 |
ROLL-OFF |
87,000 |
65,000 |
58,359 |
|
6 |
1999 KENWORTH W90 |
0XXXXX0X0XX000000 |
80,000 |
TRACTOR TRAILER |
48,121 |
36,000 |
32,322 |
|
7 |
2003 VOLVO VHD6 |
0X0XX0XX00X000000 |
73,280 |
ROLL-OFF |
116,101 |
84,000 |
75,418 |
|
8 |
1999 CHEVROLET CHASSIS |
0XXXX00X0XX000000 |
N/A |
SERVICE TRUCK |
12,000 |
8,500 |
7,632 |
|
9 |
2001 XXXX RD688S |
0X0X000X00X000000 |
73,280 |
ROLL-OFF |
78,000 |
73,000 |
65,542 |
|
10 |
2001 XXXX RD688S |
0X0X000X00X000000 |
73,280 |
ROLL-OFF |
86,000 |
75,000 |
67,338 |
|
11 |
1999 XXXX RE6882 |
0X0X000X0XX000000 |
73,280 |
ROLL-OFF |
66,000 |
65,000 |
58,359 |
|
12 |
1996 MACK DM690S |
0X0X000X0XX000000 |
73,280 |
ROLL-OFF |
34,000 |
35,000 |
31,424 |
|
14 |
2000 PETERBILT 379 |
0XX0XX0X0XX000000 |
80,000 |
TRACTOR TRAILER |
42,500 |
40,000 |
35,913 |
|
16 |
2004 MACK CV7 |
0X0XX00XX0X000000 |
73,280 |
ROLL-OFF |
110,000 |
92,000 |
82,601 |
|
19 |
2000 FREIGHTLINER |
0XXXXXXX0XXX00000 |
80,000 |
TRACTOR TRAILER |
35,000 |
30,000 |
26,935 |
|
20 |
2000 FREIGHTLINER |
0XXXXXXX0XXX00000 |
80,000 |
TRACTOR TRAILER |
35,000 |
30,000 |
26,935 |
|
21 |
2000 INTERNATIONAL |
0XXXXXXX0XX000000 |
80,000 |
TRACTOR TRAILER |
44,000 |
40,000 |
35,913 |
|
23 |
2001 WESTERNSTAR |
0XXXXX0X00X000000 |
80,000 |
ROLL-OFF |
78,000 |
78,000 |
70,031 |
|
|
|
|
|
|
|
|
|
|
|
TRAILERS |
|
|
|
|
|
|
|
1 |
1990 UNKNOWN D34 |
0X0X00000X0000000 |
N/A |
TRAILERS |
11,000 |
12,000 |
10,774 |
|
3 |
1989 UNKNOWN P28 |
0X0X0X000XXX00000 |
N/A |
TRAILERS |
9,000 |
12,000 |
10,774 |
|
6 |
1998 MONW DUMP |
0XXX00X0XXX000000 |
N/A |
TRAILERS |
21,000 |
20,000 |
17,957 |
|
7 |
2005 MD40 64 2005 SUPERIOR |
0X0XX00000X000000 |
N/A |
TRAILERS |
40,224 |
33,000 |
29,629 |
|
8 |
2005 MD40 64 2005 SUPERIOR |
0X0XX00000X000000 |
N/A |
TRAILERS |
40,224 |
33,000 |
29,629 |
|
9 |
1998 TRI |
0XXXX0000XX000000 |
N/A |
TRAILERS |
26,500 |
25,000 |
22,446 |
|
10 |
1998 TRI |
0XXXX0000XX000000 |
N/A |
TRAILERS |
26,500 |
25,000 |
22,446 |
|
11 |
1998 TRI |
0XXXX0000XX000000 |
N/A |
TRAILERS |
26,500 |
25,000 |
22,446 |
|
12 |
2006 SUPERIOR |
0X0XX00000X000000 |
N/A |
TRAILERS |
42,000 |
35,000 |
31,424 |
|
14 |
2006 SUPERIOR |
0X0XX00000X000000 |
N/A |
TRAILERS |
42,000 |
35,000 |
31,424 |
|
15 |
2006 SUPERIOR |
0X0XX00000X000000 |
N/A |
TRAILERS |
45,998 |
35,000 |
31,424 |
|
374 |
1999 FRU SE |
FWY231501 |
N/A |
TRAILERS |
35,000 |
29,000 |
26,037 |
|
|
|
|
|
|
|
|
|
|
20 YARDS |
4' tall x 8' wide x 22' long |
|
|
|
|
|
|
|
201 |
4' tall x 8' wide x 22' long |
|
|
|
|
2,296 |
2,061 |
|
202 |
4' tall x 8' wide x 22' long |
|
|
|
|
2,296 |
2,061 |
|
203 |
4' tall x 8' wide x 22' long |
|
|
|
|
2,296 |
2,061 |
|
204 |
4' tall x 8' wide x 22' long |
|
|
|
|
2,296 |
2,061 |
|
205 |
4' tall x 8' wide x 22' long |
|
|
|
|
2,296 |
2,061 |
|
206 |
4' tall x 8' wide x 22' long |
|
|
|
|
2,296 |
2,061 |
|
207 |
4' tall x 8' wide x 22' long |
|
|
|
|
2,296 |
2,061 |
|
208 |
4' tall x 8' wide x 22' long |
|
|
|
|
2,296 |
2,061 |
|
209 |
4' tall x 8' wide x 22' long |
|
|
|
|
2,296 |
2,061 |
|
210 |
4' tall x 8' wide x 22' long |
|
|
|
|
2,296 |
2,061 |
|
211 |
4' tall x 8' wide x 22' long |
|
|
|
|
2,296 |
2,061 |
|
212 |
4' tall x 8' wide x 22' long |
|
|
|
|
2,296 |
2,061 |
|
213 |
4' tall x 8' wide x 22' long |
|
|
|
|
2,296 |
2,061 |
|
214 |
4' tall x 8' wide x 22' long |
|
|
|
|
2,296 |
2,061 |
|
215 |
4' tall x 8' wide x 22' long |
|
|
|
|
2,296 |
2,061 |
|
216 |
4' tall x 8' wide x 22' long |
|
|
|
|
2,296 |
2,061 |
|
217 |
4' tall x 8' wide x 22' long |
|
|
|
|
2,296 |
2,061 |
|
218 |
4' tall x 8' wide x 22' long |
|
|
|
|
2,296 |
2,061 |
|
219 |
4' tall x 8' wide x 22' long |
|
|
|
|
2,296 |
2,061 |
|
220 |
4' tall x 8' wide x 22' long |
|
|
|
|
2,296 |
2,061 |
|
221 |
4' tall x 8' wide x 22' long |
|
|
|
|
2,296 |
2,061 |
|
222 |
4' tall x 8' wide x 22' long |
|
|
|
|
2,296 |
2,061 |
|
223 |
4' tall x 8' wide x 22' long |
|
|
|
|
2,296 |
2,061 |
|
224 |
4' tall x 8' wide x 22' long |
|
|
|
|
2,296 |
2,061 |
|
|
|
|
|
|
|
|
|
|
30 YARDS |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
|
|
|
301 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
302 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
303 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
304 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
305 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
306 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
307 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
308 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
309 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
310 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
311 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
312 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
313 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
314 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
315 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
316 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
317 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
318 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
319 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
320 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
321 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
322 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
323 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
324 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
325 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
326 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
327 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
328 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
329 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
330 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
331 |
5 1/2' tall x 8' wide x 22' long |
|
|
|
|
2,695 |
2,420 |
|
|
|
|
|
|
|
|
|
|
40 YARDS |
8' tall x 8' wide x 22' long |
|
|
|
|
|
|
|
401 |
8' tall x 8' wide x 22' long |
|
|
|
|
3,000 |
2,694 |
|
402 |
8' tall x 8' wide x 22' long |
|
|
|
|
3,000 |
2,694 |
|
403 |
8' tall x 8' wide x 22' long |
|
|
|
|
3,000 |
2,694 |
|
404 |
8' tall x 8' wide x 22' long |
|
|
|
|
3,000 |
2,694 |
|
405 |
8' tall x 8' wide x 22' long |
|
|
|
|
3,000 |
2,694 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10 YARDS |
4'tallx8'widex11'long |
|
|
|
|
|
|
|
101 |
4'tallx8'widex11'long |
|
|
|
2,440 |
2,191 |
|
|
102 |
4'tallx8'widex11'long |
|
|
|
2,440 |
2,191 |
|
|
103 |
4'tallx8'widex11'long |
|
|
|
2,440 |
2,191 |
|
|
104 |
4'tallx8'widex11'long |
|
|
|
2,440 |
2,191 |
|
|
105 |
4'tallx8'widex11'long |
|
|
|
2,440 |
2,191 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,236,349 |
1,110,040 |
