Looking for an agreement? Search from over 1 million agreements now.

Asset Purchase Agreement

This is an actual contract by Aasche Transportation Services.

Save time and money with our Premium Packages.
Buy all (8) recommended agreements for
$140.00 (50% savings)
Agreement Preview
Sectors: Transportation
Governing Law: Illinois, View Illinois State Laws
Effective Date: September 24, 1997
Related Agreement Types:
Search This Document
EXHIBIT 10.1


ASSET PURCHASE AGREEMENT


BETWEEN


GARY I. GOLDBERG


AND


JACK GRAY TRANSPORT, INC.
AN INDIANA CORPORATION


DATED AS OF SEPTEMBER 24, 1997


2


TABLE OF CONTENTS


Page Number
----------- 1. PURCHASE OF ASSETS...................................................... 1


1.1. AGREEMENT TO SELL AND PURCHASE ASSETS........................... 1
1.2. NO PURCHASE OF BUSINESS......................................... 2
1.3. EXCLUDED ASSETS................................................. 2
1.4. EXCLUDED LIABILITIES............................................ 3


2. PURCHASE PRICE.......................................................... 3


2.1. CONSIDERATION FOR THE PURCHASED ASSETS.......................... 3
2.2. PAYMENT OF CONSIDERATION........................................ 3
2.3. PURCHASE PRICE ADJUSTMENTS...................................... 3


3. REPRESENTATIONS AND WARRANTIES OF SELLER................................ 4


3.1. ORGANIZATION AND CORPORATE POWER................................ 4
3.2. AUTHORIZATION OF TRANSACTION.................................... 5
3.3. NONCONTRAVENTION................................................ 5
3.4. OWNED TERMINALS................................................. 5
3.5. LEASED TERMINALS................................................ 6
3.6. EQUIPMENT....................................................... 6
3.7. BROKERS' FEES................................................... 7


4. REPRESENTATIONS AND WARRANTIES OF BUYER................................. 7


4.1. AUTHORIZATION OF TRANSACTION.................................... 7
4.2. NONCONTRAVENTION................................................ 7
4.3. BROKERS' FEES................................................... 8
4.4. DISCLOSURES..................................................... 8


5. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS............................. 8


5.1. REPRESENTATIONS AND WARRANTIES.................................. 8


6. CONDITION PRECEDENT TO THE OBLIGATIONS OF SELLER........................ 8


6.1. REPRESENTATIONS AND WARRANTIES.................................. 8


7. OTHER AGREEMENTS OF THE PARTIES......................................... 9


7.1. BUSINESS REVIEW................................................. 9
7.2. EXCLUSIVITY..................................................... 9
7.3. CONDUCT OF BUSINESS............................................. 9
7.4. OTHER AGREEMENTS................................................ 10


8. CLOSING................................................................. 12


8.1. TIME AND PLACE.................................................. 12
8.2. CLOSING TRANSACTIONS............................................ 12
8.3. DELIVERIES BY SELLER TO BUYER................................... 12
8.4. DELIVERIES BY BUYER TO SELLER................................... 13


9. POST-CLOSING OBLIGATIONS OF THE PARTIES................................. 13


9.1. GENERAL......................................................... 13


i 3


9.2. COOPERATION..................................................... 14


10. GENERAL................................................................ 14


10.1. SUCCESSORS AND ASSIGNS......................................... 14
10.2. ENTIRE AGREEMENT............................................... 14
10.3. COUNTERPARTS................................................... 14
10.4. NOTICES........................................................ 14
10.5. GOVERNING LAW.................................................. 15
10.6. AMENDMENTS AND WAIVERS......................................... 15
10.7. SEVERABILITY................................................... 15
10.8. EXPENSES....................................................... 16
10.9. CONSTRUCTION................................................... 16
10.10. INCORPORATION OF EXHIBITS AND SCHEDULES....................... 16
10.11. SPECIFIC PERFORMANCE.......................................... 16
10.12. REMEDIES CUMULATIVE........................................... 17


11. TERMINATION............................................................ 17


11.1. TERMINATION OF AGREEMENT....................................... 17


ii 4


SCHEDULES


Schedule 1.1(a) Owned Terminals
Schedule 1.1(b) Leased Terminals
Schedule 1.1(c) Waste Contracts
Schedule 1.1(d) Equipment
Schedule 1.1(f) Inventory, etc.
Schedule 1.4(a) Assumed Liabilities
Schedule 3.3 Seller's Noncontravention
Schedule 4.2 Buyer's Noncontravention


EXHIBITS


Exhibit A - Form of Bills of Sale and Other Transfer Documentation
Exhibit B - Opinion of Seller's Counsel
Exhibit C - Opinion of Buyer's Counsel


iii 5


ASSET PURCHASE AGREEMENT


THIS ASSET PURCHASE AGREEMENT (this "AGREEMENT") is made as of the 24th day of September 1997, by and among GARY I. GOLDBERG or his assigns ("BUYER") and JACK GRAY TRANSPORT, INC. an Indiana corporation ("SELLER").


RECITALS


A. Seller, among other things, is engaged in the business of providing transportation services related to municipal solid waste from certain owned or leased terminals more fully described below (the "BUSINESS").


B. Seller desires to sell and assign to Buyer, and Buyer desires to purchase from Seller, substantially all of the assets utilized primarily or exclusively in connection with the Business from certain owned and leased terminals as more fully described herein on the terms and subject to the conditions set forth in this Agreement.


NOW, THEREFORE, in consideration of the foregoing recitals, which are hereby incorporated herein, and the mutual premises herein contained, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereby agree as follows:


ARTICLE
1
PURCHASE OF ASSETS


1.1 AGREEMENT TO SELL AND PURCHASE ASSETS. Buyer will purchase and acquire from Seller, and Seller will sell, transfer, assign and convey to Buyer, on the Closing Date (as defined herein) substantially all of the assets utilized primarily or exclusively in connection with the Business operated from the owned and leased terminals described in Section 1.1(a) and 1.1(b) below (the "PURCHASED TERMINALS"), which assets shall include, without limitation, all tangible and intangible property currently owned by Seller and necessary to conduct the Business as currently conducted and the following assets (collectively the "PURCHASED ASSETS"):


(a) The following terminals owned by Seller, the legal descriptions
of which are contained on Schedule 1.1(a) hereof (the "OWNED TERMINALS"):
(i) Nashville, Tennessee; (ii) Phoenix, Arizona (buildings); (iii)
Spartanburg, South Carolina; and (iv) Long Island, New York.


(b) The following terminals leased by Seller pursuant to lease
agreements described on Schedule 1.1(b) hereof (the "LEASED TERMINALS"):
(i) Arlington, Oregon


6


(including a vacant parcel in Arlington, Oregon as specified on Schedule
1.1(b) hereof); (ii) Greensboro, North Carolina; and (iii) Lancaster,
California.


(c) Certain waste transport services contracts as described on
Schedule 1.1(c) hereof (the "WASTE CONTRACTS").


(d) Certain equipment and rolling stock as described on Schedule
1.1(d) (the "EQUIPMENT")


(e) Retainage deposit of $2.5 million as described in the Waste
Transport Services Contract dated March 23, 1989 between Metropolitan
Service District and Seller.


(f) Inventory, parts, supplies, company-owned automobiles (including
the automobile presently used by Buyer, computer equipment and software
at the Owned Terminals and Leased Terminals, a list of which property is
attached hereto as Schedule 1.1(f).


(g) All other executory contracts entered into by Seller in
connection with the Business, except that (A) Buyer shall not assume any
of Seller's obligations under the Contract dated November 1, 1993 between
Seller and H.H.H., Inc. and (B) Buyer shall assume the obligations of
Seller under the Contract dated April 7, 1993 ("APRIL 1993 CONTRACT"),
provided that on or before the Closing Date, Seller and/or Buyer and
H.H.H., Inc. enter into an amendment of the April 1993 Contract that
provides for the following:


(i) Paragraph 3 of the April 1993 Contract shall be deleted;
and


(ii) The second sentence of Paragraph 4 of the April 1993
Contract shall be deleted.


1.2 NO PURCHASE OF BUSINESS. It is hereby acknowledged and agreed to by Seller that Buyer is not buying the business known as Jack Gray Transport, Inc. and that the Buyer is not the successor, administrator, executor or assign of Seller.


1.3 EXCLUDED ASSETS. Notwithstanding anything contained in Section 1.1 above, the following assets are expressly excluded and shall not be included in the term Purchased Assets:


(a) Accounts receivable.


(b) Cash/bank accounts/money market accounts.


(c) Seller's corporate documentation, books and records.


2 7


(d) Any asset utilized in Seller's other operations other than
Seller's solid waste operations operated from the Purchased Terminals.


1.4 EXCLUDED LIABILITIES. Buyer shall assume none of the Seller's liabilities, indebtedness and obligations of any nature whatsoever, whether reflected on a balance sheet or otherwise, except as follows (the "ASSUMED LIABILITIES"):


(a) Liabilities incurred after the Closing Date under leases or
executory contracts specifically assumed by Buyer as described on
Schedule 1.4(a).


(b) Liabilities and obligations under Seller's 401(k) plan
("SELLER'S 401(K) PLAN") in respect to employees of the Business. Within
thirty days after the Closing Date, Seller shall cause the assets
contained in Seller's 401(k) Plan attributable to employees of the
Business to be rolled over into a 401(k) plan instituted by Buyer or
Buyer's assignee or an affiliate of such assignees ("BUYER'S 401(K)
PLAN"). Contributions accrued prior to the Closing Date in respect to
Seller's 401(k) Plan for employees of the Business will be made by
Seller. Contributions accrued after the Closing Date in respect to
Buyer's 401(k) Plan shall be made by Buyer.


(c) Expenses or liabilities of the Business arising as of or after
the Closing Date. Expenses or liabilities of the Business arising prior
to the Closing Date shall be borne by Seller.


ARTICLE
2
PURCHASE PRICE


2.1 CONSIDERATION FOR THE PURCHASED ASSETS. In consideration for its purchase of the Purchased Assets, on the Closing Date, Buyer shall pay to Seller Thirty Million Dollars ($30,000,000) subject to the adjustments set forth in Section 2.3 ("PURCHASE PRICE").


2.2 PAYMENT OF CONSIDERATION. On the Closing Date, Buyer shall deliver to Seller the Purchase Price by federal wire transfer of immediately available funds to a bank designated by Seller.


2.3 PURCHASE PRICE ADJUSTMENTS. The Purchase Price shall be subject to adjustment in the following events:


(a) In the event that between the date hereof and the Closing Date
Seller, with the consent of Buyer, purchases any trailers, tractors or
other equipment to be included within the Purchased Assets, the Purchase
Price shall be increased by Seller's cost of such trailers, tractors or
other equipment.


3 8


(b) Buyer and Seller agree that as of the date hereof, Seller needs
to replace five tractors for the Arlington, Oregon terminal and five
tractors for the Phoenix, Arizona terminal. Any such replacement tractor
shall be a "class 8 tractor", unless otherwise mutually agreed to by
Seller and Buyer. If such tractors are delivered prior to the Closing
Date, the Purchase Price shall be increased by Seller's cost (net of any
trade-ins if the equipment so traded-in is listed on Schedule 1.1(d)) of
such delivered tractors. If such tractors are delivered after the
Closing Date, it shall be Buyer's responsibility to pay for such tractors
and the Purchase Price shall not be increased by Seller's cost of such
undelivered tractors.


(c) In the event, Seller sells, upon the mutual agreement of Buyer
and Seller, any of the Equipment or any of the Equipment is damaged or
taken by condemnation, the Purchase Price shall be reduced by the sale
proceeds in the case of a sale, the insurance proceeds plus any
applicable deductible, in case of any casualty or the condemnation
proceeds, in the case of any taking.


(d) The Purchase Price shall be increased by the amount of any
supplies purchased by Seller exclusively for the Business prior to the
Closing Date in excess of normal requirements.


(e) The Purchase Price shall be increased by any expense that Seller
pays which expense pursuant to Section 1.4(c) is Buyer's responsibility.
The Purchase Price shall be decreased by any expense that Buyer pays
which expense pursuant to Section 1.4(c) is Seller's responsibility.


ARTICLE
3
REPRESENTATIONS AND WARRANTIES OF SELLER


As a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated hereby, Seller hereby represents and warrants the following to Buyer on and as of the date of this Agreement:


3.1 ORGANIZATION AND CORPORATE POWER. Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Indiana. Seller has all requisite corporate power and authority to carry on the business in which it is engaged and to own and use the properties owned and used by it. True and correct copies of Seller's Articles of Incorporation and By-Laws, as amended to date, have been delivered to Buyer.


3.2 AUTHORIZATION OF TRANSACTION. Seller has all requisite corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. Without limiting the generality of the foregoing, the Board of Directors and the sole stockholder of Seller


4 9


have taken all necessary actions to authorize the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby. This Agreement constitutes the valid and legally binding obligation of Seller enforceable against it in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting the enforcement of creditors' rights generally, now or hereafter in effect and subject to the application of equitable principles and the availability of equitable remedies.


3.3 NONCONTRAVENTION. Except as set forth in Schedule 3.3, neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby will (i) violate or conflict in any way with any statute, regulation, law, rule or common
-- End of Preview --
Home| About Us| FAQ| Subscription | Contact Us |

Privacy Policy   Terms of Service  3.85.143.239