EXHIBIT 10(C)
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ASSET PURCHASE AGREEMENT
Between
▇▇▇▇ ▇. ▇▇▇▇▇,
LANCASTER NORTHERN RAILWAY, INC.,
▇▇▇▇▇▇▇ VALLEY RAILWAY, INC.,
EAST PENN RAILWAYS, INC.
AND
BRISTOL INDUSTRIAL TERMINAL RAILWAY, INC.
and
PENN EASTERN RAIL LINES, INC.
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Dated
November 7, 1997
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ASSET PURCHASE AGREEMENT
PENN EASTERN RAIL LINES, INC., a Delaware corporation ("Purchaser") and
▇▇▇▇ ▇. ▇▇▇▇▇, an individual, LANCASTER NORTHERN RAILWAY, INC., a Delaware
corporation, ▇▇▇▇▇▇▇ VALLEY RAILWAY, INC., a Delaware corporation, EAST PENN
RAILWAYS, INC., a Delaware corporation, and BRISTOL INDUSTRIAL TERMINAL RAILWAY,
INC., a Delaware corporation (jointly and severally the "Seller") agree as
follows:
1. DEFINITIONS
1.1. The following terms when used with initial capitalization in this
Agreement, whether in the singular or the plural, have the meanings
ascribed to them below:
"Agreement" means this Asset Purchase Agreement, including its Appendices
and Exhibits.
"Assets" means the assets of Seller identified in Appendix A to this
Agreement.
"Cash Portion" has the meaning given to it in Section 4.1 of this
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Agreement.
"CERCLA" means the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, 42 U.S.C. (S)9601 et seq.
"Closing" has the meaning given to it in Section 11.1 of this Agreement.
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"Closing Date" has the meaning given to it in Section 11.2 of this
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Agreement.
"Contracts" means contracts, leases, commitments, agreements and
arrangements.
"Board" means the Surface Transportation Board established under 49 U.S.C.
(S)10101 et seq. or any successor agency.
"Emons" means Emons Transportation Group, Inc.
"Environmental Law" means any law, judgment, decree, order, license, rule
or regulation pertaining to environmental matters, including without limitation,
those arising under the Resource Conservation and Recovery Act of 1976, as
amended (42 U.S.C. (S)6901 et seq.), CERCLA, the Superfund Amendments and
Reauthorization Act of 1986, as amended (Pub. L. 99-499, Pub. L. 99-563, Pub. L.
100-202 and Pub. L. 101-144), the Clean Water Act, as amended (33 U.S.C. (S)1251
et seq.), the Clean Air Act, as amended (42 U.S.C. (S)7401 et seq.), the Toxic
Substances Control Act, as amended (15 U.S.C. (S)2601 et seq.), the Safe
Drinking Water Act, as amended (42 U.S.C. (S)300f et seq.), the Emergency
Planning and Community Right-to-Know Act of 1986, as amended (42 U.S.C. (S)11001
et seq.) and any other federal, state or local statute, regulation, ordinance,
order or decree pertaining to the environment.
"Hazardous Substances" means any "hazardous waste" as defined by 42 U.S.C.
(S)6903(5), any "medical waste" as defined by 42 U.S.C. (S)6903(40), any
"hazardous substance" as defined by 42 U.S.C. (S)9601(14), any "pollutant or
contaminant" as defined by 42 U.S.C. (S)9601(33), any "hazardous chemical"
pursuant to 29 CFR (S)1910.1200(c), any substance designated pursuant to 40 CFR
Part 302, any
"extremely hazardous substance" pursuant to ▇▇ ▇▇▇ ▇▇▇, any "toxic chemical"
pursuant to 40 CFR Part 372, and any toxic substance, oil, petroleum, hazardous
material or other chemical or substance deemed hazardous by an Environmental
Law.
"Inventory" means inventory, fuel, supplies and other materials relating to
or acquired or used for locomotive or car repair, trackage, signal, structure
and building maintenance, or otherwise in connection with the operation, use or
enjoyment of the Rail Lines or the other Assets.
"Inventory Accounts" means the accounts on Seller's balance sheets where
Inventory is carried, which accounts shall be kept in accordance with generally
accepted accounting principles.
"Knowledge", when used in this Agreement to modify a representation,
warranty or other statement of a party, means that the facts or situations
described in the representation, warranty or other statement as being to the
knowledge of such party are believed to be true and correct by the president,
each vice president (including senior vice presidents, executive vice
presidents, and vice presidents with other similar designations), and each
officer who is principally responsible for the subject matter involved, after
suitable investigation.
"Penndot" means the Department of Transportation of the Commonwealth of
Pennsylvania.
"Permitted Encumbrances" means any
1.2. liens for taxes, assessments, levies, fees and other government
charges not yet due or payable or which, if due and unpaid, are being
contested in good faith and by appropriate proceedings,
1.3. mechanics' and materialmen's liens and similar charges incurred in the
ordinary course of Seller's business which individually or in the
aggregate do not materially interfere with railroad operations on the
Rail Lines,
(a) utility easements, licenses or permits located on or crossing any
portion of the Assets that do not materially interfere with
railroad operations on the Rail Lines,
(b) road crossing agreements with governmental authorities or
private parties that do not materially interfere with railroad
operations on the Rail Lines,
(c) leases, easements, trackage rights agreements and tenancy
agreements existing as of the date of this Agreement which are
assumed by Purchaser in accordance with this Agreement,
(d) rights of reverter which have not been violated and will not be
violated as long as the affected real property is used for
railroad purposes,
(e) encumbrances specifically agreed to by Purchaser in a separate
writing delivered to the Seller,
(f) matters customarily excepted by title companies in their
commitments for title insurance or title policies as "standard
exceptions",
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(g) rights reserved to or vested in any governmental authority with
respect to the Assets or their regulation, and
(h) acts done by, through or under Purchaser, its employees, agents
and contractors.
"Promissory Note" means the Promissory Note described in Section 4.4(a).
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"Purchase Price" has the meaning given to it in Section 4.1 of this
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Agreement.
"Purchaser" means Penn Eastern Rail Lines, Inc., a Delaware corporation.
"Rail Lines" means the lines of railroad included in the Assets which are
owned or operated by Seller.
"Seller" means, collectively or individually, as the context requires or
permits, ▇▇▇▇ ▇. ▇▇▇▇▇, an individual, Lancaster Northern Railway, Inc., a
Delaware corporation, ▇▇▇▇▇▇▇ Valley Railway, Inc., a Delaware corporation, East
Penn Railways, Inc., a Delaware corporation, and Bristol Industrial Terminal
Railway, Inc., a Delaware corporation.
"Shares" has the meaning given to it in Section 4.1.
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"Stock Portion" has the meaning given to it in Section 4.1.
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2. PURCHASE AND SALE OF ASSETS; ASSIGNMENT OF CONTRACTS
2.1. General. Under the terms and subject to the conditions contained in
this Agreement, Seller agrees to sell and transfer to Purchaser, and
Purchaser agrees to purchase, on the Closing Date, all of the Assets.
2.2. Assignment Of Contracts. Contemporaneous with the transfer of the
Assets to Purchaser, each Seller agrees to assign and set-over to
Purchaser all of such Seller's rights and interests under the
Contracts listed on Appendix B hereto.
2.3. Grant Of Option. For the period from the Closing Date through
December 31, 1997, Seller grants to Purchaser the right to acquire,
for One ($1.00) Dollar, Seller's interest in that certain Lease
Agreement Between Southeastern Pennsylvania Transportation Authority
and East Penn Railways, Inc. to Operate Over The Bethlehem Branch
Between Telford, ▇▇▇▇▇▇▇▇▇▇ County, and Quakertown, Bucks County,
Pennsylvania, dated as of October __, 1997 (the "SEPTA Lease").
Purchaser's exercise of this option must be made by written notice in
accordance with Section 17.12 on or before December 31, 1997.
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2.4. Pending Transactions and Negotiations. As additional consideration,
Seller agrees to inform and apprise Purchaser of all pending
negotiations, proposals, discussions regarding the purchase, lease or
operation of additional rail lines involving Seller, to introduce
Purchaser to third parties involved in any such pending negotiations,
proposals, discussions, and to make its best efforts to ensure that
such pending negotiations, proposals, discussions accrue to the
benefit of the Purchaser.
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3. EXCLUSION OF ASSETS
3.1. Contracts. The Assets do not include any rights under Contracts not
specifically assumed by Purchaser under Section 2.2 of this Agreement
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and all records of Seller relating to such Contracts.
3.2. Current Assets. The Assets do not include any accounts receivable,
cash on hand or deposit and cash equivalents, and other current assets
of the Seller, except for the Inventory, Contracts and intangible
assets specifically identified in Appendix A.
3.3. Corporate Records. The Assets do not include general ledgers, minute
books, tax returns and similar records required for the Seller's
corporate, partnership and tax purposes.
3.4. Claims and Litigation. The Assets do not include rights under
claims and litigation or settlements of such claims and litigation
by or against Seller.
4. PURCHASE PRICE
4.1. Amount of Purchase Price. The purchase price ("Purchase Price") for
the Assets shall be determined and paid as follows:
(a) Five Hundred Thousand Dollars ($500,000) to be paid to Seller
in cash (the "Cash Portion"), and
(b) The balance of the Purchase Price shall be paid to Seller in
common stock (the "Stock Portion") of Emons, in the amount of
Eighty Five Thousand (85,000) shares. The shares of common stock
comprising the stock portion are hereinafter referred to as the
"Shares."
4.2. Securities Laws Matters. Sellers understand that the Shares will not
be registered under the Securities Act of 1933, as amended (the
"Act"), on the ground that the securities are being issued and sold in
a transaction not involving any public offering and that consequently
the transaction is exempt from registration under the Act by virtue of
the provisions of (S) 4(2) of the Act; nor are the Shares to be
registered under Pennsylvania or other state securities laws. Sellers
understand that the Company's reliance upon these exemptions is
predicated in part on the representations of the Sellers contained in
Section 9.1 hereof.
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4.3. Adjustment of Purchase Price. The Purchase Price is subject to
adjustment in accordance with Sections 5 and 6 below. Any such
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adjustment made to the Purchase Price shall be deducted from the Cash
Portion.
4.4. Payment of Purchase Price.
(a) The Cash Portion, as adjusted, shall be paid by wire transfer of
immediately available funds to one or more bank accounts
designated by Seller or, at the Seller's sole election, by one or
more cashier's checks. One-half of the Cash Portion shall be paid
at the Closing and the other half will be paid on January 2, 1998.
Purchaser shall give Seller a Promissory Note substantially in the
form of
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Appendix F, covering the half of the Cash Portion to be paid on
January 2, 1998 (the "Promissory Note").
(b) The Stock Portion will be paid as soon as reasonably practicable
following the Closing Date, but in no event more than twenty (20)
days following the Closing Date. At the Closing Purchaser will
deliver or cause Emons to deliver instructions to its stock
transfer agent directing such transfer agent to deliver
certificates for the Shares.
4.5. Allocation of Purchase Price. The Purchase Price shall be allocated to
the Assets as set forth on Appendix C. The Purchase Price shall be
paid to the Seller in accordance with instructions given to Purchaser
by the Seller. Purchaser shall have no responsibility to the Seller
for the application of the Purchase Price paid pursuant to
instructions given pursuant to this Section.
5. CHANGES IN ASSETS
5.1. Loss of and Damage to Assets. If between the date of this Agreement
and the Closing Date, Assets with a fair market value in excess of
$10,000 in the aggregate are sold, lost, destroyed or condemned, or
suffer any material damage and are not replaced or repaired prior to
the Closing Date, then, at the option of Purchaser, either:
(a) the Cash Purchase Price shall be reduced by the excess of:
1. the fair market value of the Assets immediately prior to the
sale, loss, destruction, condemnation or damage, over
2. the salvage value, if any, of the Assets immediately
following the sale, loss, destruction, condemnation or
damage,
(b) no reduction to the Cash Purchase Price shall be made, and the
Seller shall, on the Closing Date, assign to Purchaser all sale,
insurance or condemnation proceeds payable to the Seller on
account of the loss, destruction, condemnation or damage pursuant
to an assignment reasonably satisfactory to Purchaser and pay to
Purchaser that portion, if any, of any deductible amount under
any insurance applicable to the claim for loss, destruction or
damage; or
(c) the Agreement and the consummation of the transactions
contemplated by this Agreement shall be terminated.
6. TAX ALLOCATION, LEASE INCOME
6.1. Proration of Taxes. The Cash Purchase Price shall be adjusted for
current real and personal property taxes affecting the Assets and due
and payable in calendar year 1997, which shall be prorated over the
calendar year by Seller and Purchaser. If the tax ▇▇▇▇ for the 1997
calendar year or any prior year has not been received at the Closing
Date and the tax amount cannot otherwise be definitely ascertained,
allocations shall be made on the basis of the prior year's taxes. Any
refund of such taxes applicable to the period prior to Closing shall
be the property of and sent to Seller, and any refunds applicable to
the period after Closing shall be the property of and sent to
Purchaser.
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6.2. Lease Rentals and License Income. Lease rentals and license income
(which is not already by its terms calculated on a per diem basis)
shall be prorated to the Closing Date and the amount due Purchaser, if
any, paid within 30 days after Closing.
6.3. Labor Protection. Both parties contemplate that transactions
contemplated by this Agreement will not involve the imposition of
labor protective conditions. If labor protective conditions are
imposed the cost of such conditions will be borne by the Seller.
7. ASSUMPTION OF LIABILITIES AND OBLIGATIONS
7.1. Liabilities to be Assumed. As of the Closing, Purchaser agrees to
assume, discharge and pay in accordance with their respective terms
and to become responsible for the liabilities and obligations of the
Seller under all Contracts set forth on Appendix B, to the extent
those liabilities and obligations accrue after the Closing.
7.2. Liabilities not to be Assumed. Except as expressly provided
elsewhere in this Agreement, Purchaser shall not be obligated to
assume any liability or obligation whatsoever, including but not
limited to, the following:
(a) any litigation, arbitration, claim or similar liability of any
type with respect to the Assets or Seller's ownership thereof,
which is based on or arises out of an event or circumstance
occurring prior to the Closing;
(b) obligations under any plan to which the Seller contributes
pursuant to the applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, or under any other
employee benefit plan, pension plan or similar plan; and
(c) all claims against or obligations of Seller arising out of or in
connection with any labor agreement or arrangement.
7.3. Insurance. The provisions of this Section 7 shall not be construed to
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constitute the assumption of any liabilities or obligations in a
manner which would avoid the applicability of any insurance policy
with respect to any event or circumstance arising prior to the
Closing.
7.4. No Third Party Rights. This Section 7 is not intended to create any
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rights in favor of any person other than Purchaser and Seller.
8. ADMINISTRATIVE TRANSITION
8.1. Inventory of Loaded Cars.
(a) Seller will prepare and make available to Purchaser an inventory
of all loaded cars on the Rail Lines as of 11:59 P.M., Closing
Date, so that revenue resulting from shipments over the Rail
Lines can be identified and properly distributed between Seller
and Purchaser. The inventory will show separately:
1. Loaded cars at the interchange points or on sidings, which
have not moved in linehaul service on the Rail Lines as of
11:59 P.M., Closing Date.
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2. Loaded cars at the interchange points or on sidings for which
linehaul service on the Rail Lines has been completed as of
11:59 P.M., Closing Date.
3. Loaded cars enroute on the Rail Lines, in a train consist or
at an intermediate point on the Rail Lines, as of 11:59 P.M.,
Closing Date.
8.2. Linehaul Revenue.
(a) For inbound cars located at an interchange point at 11:59 P.M.,
Closing Date, and no linehaul service over the Rail Lines has
been performed, Purchaser shall be entitled to 100 percent of the
revenue for movement of the cars over the Rail Lines.
(b) For outbound cars located at an interchange point at 11:59 P.M.,
Closing Date, and linehaul service on the Rail Lines has been
completed, Seller shall be entitled to 100 percent of the revenue
for movement of the cars over the Rail Lines.
(c) For inbound or outbound cars located on sidings or enroute on the
Rail Lines at 11:59 P.M., Closing Date, Purchaser and Seller
shall each be entitled to 1/2 of the revenue attributable to
movement over the Rail Lines.
8.3. Miscellaneous Revenue Other Than Demurrage. Revenue from miscellaneous
charges or switching bills for service provided by Seller up to and
including Closing Date will be retained by Seller. Revenue from
miscellaneous charges or switching bills for service provided by
Purchaser after Closing Date will be retained by Purchaser.
8.4. Demuurage Revenue. Seller will furnish Purchaser with detailed
placement and other data necessary to compute demurrage charges for
all cars subject to actual or constructive placement on the Closing
Date, and Purchaser shall ▇▇▇▇ for demurrage accrued on all such cars.
Demurrage charges accrued up to 11:59 P.M. of the Closing Date shall
be paid to Seller by Purchaser when customer is billed.
8.5. Switching Charges Assessed by Another Railroad. Charges for any
switching performed by another railroad on behalf of the owner of the
Rail Lines pursuant to agreement or tariff, up to and including
Closing Date, will be paid by Seller. Such charges for switching
performed after Closing Date will be paid by Purchaser. Such switching
charges shall not be allocated to a revenue movement.
8.6. Car Accounting. An inventory of loaded and empty equipment on the Rail
Lines as of 11:59 P.M., Closing Date, will be taken by Seller. For
purposes of determining responsibility for car hire and car mileage
payments, Seller shall perform a paper interchange of all such
equipment to Purchaser effective as of 11:59 P.M., Closing Date. Car
mileage payments and the mileage portion of car hire shall be
calculated based on the actual location of the car as of 11:59 P.M.,
Closing Date. Seller will be responsible for car hire and mileage
payments accrued prior to and on the Closing Date. Purchaser will be
responsible for car hire and mileage payments after Closing Date.
Unless provided otherwise by an agreement signed by the parties or in
an applicable tariff, Purchaser shall be entitled to car hire reclaim
from Seller.
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8.7. Billing and Collection. In the event Purchaser or Seller erroneously
receives payment for billing of the other party, the party receiving
such payment shall remit the payment to the party making the billing.
8.8. Freight Overcharge Claims. Liability for any overcharge claim on a
shipment for which revenue was allocated hereunder shall be assumed by
Seller and Purchaser in the same proportion as the linehaul revenues
were allocated pursuant to Section 8.2 hereof.
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8.9. Car and Trailer Repairs. Freight cars and trailers damaged on the Rail
Lines, or requiring repairs not related to damage which are the
responsibility of the user under applicable interchange rules, on or
prior to Closing Date, will be the responsibility of Seller. Those
cars and trailers damaged, or requiring repairs not related to damage
which are the responsibility of the user under applicable interchange
rules, subsequent to Closing Date, will be the responsibility of
Purchaser.
8.10. Freight Loss and Damage.
(a) Seller shall be responsible for claims for freight loss and
damage which arise from acts or omissions that occur on the Rail
Lines prior to or on the Closing Date. Purchaser shall be
responsible for such claims which arise from acts or omissions
that occur on the Rail Lines subsequent to the Closing Date. If
the date or location of an act or omission giving rise to a claim
cannot be determined, freight loss and damage liability
attributable to movements over the Rail Lines shall be assumed by
Seller and Purchaser in accordance with AAR Freight Claims Rules.
(b) Purchaser shall indemnify, defend, and hold harmless Seller from
freight loss and damage claims arising from acts or omissions
that occur on the Rail Lines after the Closing Date. Seller shall
indemnify, defend, and hold harmless Purchaser from freight loss
and damage claims arising from acts or omissions that occur on
the Rail Lines on or before the Closing Date.
(c) This provision is not intended, and shall not be interpreted, as
an admission or acknowledgment of liability by Seller or
Purchaser with respect to any claim for freight loss and damage.
(d) Purchaser and Seller will process claims in accordance with AAR
Rules, Principles and Practices.
9. REPRESENTATIONS AND WARRANTIES
9.1. Representations And Warranties Of Seller. To the best of each Seller's
knowledge, information and belief, each Seller represents and warrants
to Purchaser as follows:
(a) Each Seller (except ▇▇▇▇ ▇. ▇▇▇▇▇) is a validly organized and
existing corporation, in good standing under the laws of the
state of its incorporation. Each Seller has the necessary
authority to own property and conduct its business as now
conducted in the Commonwealth of Pennsylvania and in such other
states where it conducts business.
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(b) All necessary corporate action of Seller (except ▇▇▇▇ ▇. ▇▇▇▇▇)
required in connection with the execution and delivery of this
Agreement and the consummation of the transactions contemplated
by this Agreement has been taken. Subject to the effectiveness of
the exemption or approval by the Board, (i) Seller (except ▇▇▇▇
▇. ▇▇▇▇▇) has obtained all necessary governmental authorizations
and approvals (or exemptions from or waivers of such
authorizations or approvals) required in connection with this
Agreement, and (ii) this Agreement constitutes the valid and
binding obligation of Seller enforceable against Seller in
accordance with its terms, except as such enforcement may be
limited by applicable bankruptcy, insolvency, moratorium or
similar laws affecting rights of creditors generally and general
principles of equity.
(c) Except as set forth on Exhibit 1, the sale of the Assets and the
consummation of the other transactions contemplated by this
Agreement will not result in any breach of or default under,
violate the conditions of, or accelerate any obligation under,
Seller's articles of incorporation or bylaws or any material
agreement, mortgage, lease, deed, order, law, judgment or rule to
which Seller is a party or by which it is bound.
(d) No agent, broker or other person acting pursuant to the authority
or direction of Seller is entitled to any commission or finder's
fee in connection with the transactions contemplated by this
Agreement.
(e) Seller owns the Assets described in Appendix A free and clear of
all liens, claims or encumbrances (other than Permitted
Encumbrances), and Appendix A is a full and complete listing of
all assets used by Seller in the operation of the Rail Lines. The
Assets are in good working order and are sufficient to permit the
Purchaser to operate the Rail Lines from and after the Closing
Date in the same manner operated by Seller prior to the Closing
Date.
(f) Seller has sufficient interest in the Assets to permit the
operation of the Rail Lines as presently conducted, and there are
no claims which would affect its interest in the Assets so as to
affect Purchaser's ability to conduct operations with the Assets
following the Closing as currently conducted.
(g) Each Contract listed on Appendix B is in full force and effect
and no default has occurred under any such Contract which would
permit the other party to such Contract to terminate the Contract
or otherwise refuse to perform its obligations thereunder, or
which would otherwise have an adverse effect on the Assets or
Purchaser's ability to operate the Rail Lines as currently
operated. Seller has not waived or assigned to any other person
any of its rights under any of the Contracts on Appendix B, and
each of those Contracts may be assigned to Purchaser without
impairment of any rights under the Contract.
(h) Seller is not a party to any indenture, security, contract or
other agreement or subject to any judgment, order, writ or decree
which would (A) impose any adverse condition upon Purchaser, the
Assets or the operation of the Rail Lines or result in the loss
of any material rights currently possessed or used by Seller or
otherwise adversely affect or materially restrict the Assets or
the operation of the Rail Lines as a result of the sale of the
Assets to Purchaser as contemplated
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by this Agreement or (B) adversely affect Purchaser's ability to
conduct the operations of the Rail Lines following Closing as
currently conducted.
(i) Except as set forth on Exhibit 1, there are no actions, suits or
proceedings pending or, to the Knowledge of Seller, threatened
against Seller with respect to the Assets or the operation of the
Rail Lines in any court or before any federal, state, local or
other governmental agency.
(j) Seller (except ▇▇▇▇ ▇. ▇▇▇▇▇ in his individual capacity) is in
material compliance with all applicable Environmental Laws with
respect to the Assets and the operation of the Rail Lines.
(k) Seller (except ▇▇▇▇ ▇. ▇▇▇▇▇ in his individual capacity) has
received no written notice from any governmental agency having
authority (including, without limitation, any federal, state or
local governmental agency) (A) that it has been identified by the
United States Environmental Protection Agency as a potentially
responsible party under CERCLA with respect to a site included
within the Assets listed on the National Priorities List (40 CFR
Part ▇▇▇ ▇▇▇▇▇▇▇▇ ▇ (1990)); (B) that any Hazardous Substance has
been discovered on a site included within the Assets; or (C) that
any site included within the Assets is the subject of any ongoing
or ordered remedial investigation, removal or other response
action pursuant to any Environmental Law.
(l) Except with respect to matters which would not adversely affect
the assets, or adversely affect Purchaser's ability to operate
the Assets as currently operated or impose any cost upon
Purchaser following the Closing, (A) no portion of the Assets has
been used for the handling, storage, disposal or processing of
Hazardous Substances except in material compliance with
applicable Environmental Laws, (B) no underground storage tanks
for Hazardous Substances are located in, on or about the Assets,
(C) the Assets do not contain asbestos, urea formaldehyde foam
insulation or transformers or other equipment containing
polychlorinated biphenyls, and (D) there have been no releases of
Hazardous Substances in, on, under or from the Assets except in
material compliance with Environmental Laws.
(m) Seller is acquiring the Shares for its own account and not on
behalf of any other person or persons. Seller is acquiring the
Shares for investment purposes and not for resale or other
distribution. The Shares may not be sold, transferred, assigned
or otherwise disposed of except pursuant to an effective
registration statement or upon receipt of an opinion of counsel
satisfactory to the Purchaser and Emons that the transfer is
exempt from registration under applicable state and federal
securities laws. Seller has been informed that the certificates
representing the Shares will bear the following or substantially
similar legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED
WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933 OR UNDER
ANY STATE SECURITIES LAWS, AND MAY NOT BE SOLD, TRANSFERRED OR
PLEDGED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR AN OPINION
OF
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COUNSEL SATISFACTORY TO THE COMPANY THAT THE TRANSFER IS EXEMPT
FROM REGISTRATION UNDER APPLICABLE FEDERAL AND STATE SECURITIES
LAWS.
9.2. Representations and Warranties by Purchaser. To the best of its
knowledge, information and belief, Purchaser represents and warrants
to Seller as follows:
(a) Purchaser is a validly organized and existing Delaware
corporation, in good standing. Purchaser has full corporate power
and authority to conduct its business as such business is now
being conducted and to own and operate its properties.
(b) All necessary corporate action of Purchaser required in
connection with the execution and delivery of this Agreement and
the consummation of the transactions contemplated by this
Agreement has been authorized and obtained. Subject to the
effectiveness of the exemption or approval by the Board, (i)
Purchaser has obtained all necessary governmental authorizations
and approvals (or waivers of such authorizations or approvals)
required in connection with this Agreement, and (ii) this
Agreement constitutes the valid and binding obligation of
Purchaser enforceable against Purchaser in accordance with its
terms, except as enforcement may be limited by applicable
bankruptcy, insolvency, moratorium or similar laws affecting
rights of creditors generally and general principles of equity.
(c) The purchase of the Assets and the consummation of the
transactions contemplated by this Agreement will not result in
any breach of or default under, violate the conditions of or
accelerate any obligation under Purchaser's certificate of
incorporation, bylaws or any material agreement, mortgage, lease,
deed, order, law, judgment or rule to which Purchaser is a party
or by which it is bound.
(d) No agent, broker or other person acting pursuant to the authority
or direction of Purchaser is entitled to any commission or
finder's fee in connection with the transactions contemplated by
this Agreement.
(e) There are no actions, suits or proceedings pending or, to the
Knowledge of Purchaser, threatened against Purchaser in any court
or before any federal, state, local or other governmental agency
which, if decided adversely to the Purchaser, would prohibit the
execution, delivery and performance of this Agreement by
Purchaser.
9.3. Survival. The representations and warranties contained in this
Agreement shall survive the Closing and any termination of this
Agreement and shall remain in full force and effect for five (5) years
after the Closing.
11
10. CONDITIONS TO THE CLOSING
10.1. Obligation of Purchaser to Close. The obligation of Purchaser to
effect the closing of the transactions contemplated by this Agreement
is subject to the satisfaction at or prior to the Closing of the
following conditions:
(a) The representations and warranties of Seller contained in Section
-------
9 of this Agreement shall have been true in all material respects
-
when made and at the time of Closing as if those representations
and warranties had been made at that time.
(b) Seller shall have performed and complied in all material respects
with all agreements and conditions required by this Agreement to
be performed or complied with by Seller prior to or at the
Closing.
(c) Seller shall have removed prior to Closing all liens, security
interests or other encumbrances, except for Permitted
Encumbrances, if placed or caused to be placed on the Assets.
(d) The Board shall have approved the transactions contemplated by
this Agreement under the ICC Termination Act of 1995 or exempted
the transactions contemplated by this Agreement from the
provisions of the ICC Termination Act of 1995 requiring Board
approval, and that approval or exemption shall have become final
or effective (as the case may be).
(e) PennDOT shall have consented to the assignment of the Contracts
to which it is a party.
(f) Southeastern Pennsylvania Transportation Authority shall have
consented to the possible assignment of the SEPTA Lease.
(g) ▇▇▇▇▇ ▇. Greek & Son, Inc. shall have consented in writing to
assignment of Seller's interest in a lease agreement between
▇▇▇▇▇ ▇. Greek & Son, Inc. and Bristol Industrial Terminal
Railway, Inc. covering the property currently operated by Bristol
Industrial Terminal Railway Inc. to Purchaser or ▇▇▇▇▇ ▇. Greek &
--
Son and Purchaser shall have entered into a lease agreement
covering the property currently operated by Bristol Industrial
Terminal Railway, Inc.
(h) Ferrellgas shall have consented in writing to assignment of
Seller's interest in that certain track lease agreement dated
November __, 1997, between East Penn Railways, Inc. and
Ferrellgas to Purchaser.
(i) No condition shall have been imposed by the Board in connection
with the transactions contemplated by this Agreement which has a
material and significant adverse effect on the cost of the
transaction or value of the transaction to Purchaser or on
Purchaser's ability to own, use or operate the Assets taken as a
whole in substantially the same manner as Seller owned, used or
operated the Assets.
12
(j) Between the date of this Agreement and the Closing, no unrepaired
physical loss or damage shall have occurred to the Assets
resulting in a shut-down of any portion of the operation of the
Rail Lines as of the Closing.
(k) Purchaser shall have received an executed copy of each document,
agreement and instrument referred to in this Agreement required
to be executed and delivered by Seller prior to or at the
Closing.
(l) The transactions contemplated by this Agreement to whatever
extent necessary shall have been performed pursuant to proper and
requisite action taken by Seller under applicable law.
(m) There shall not have been instituted or threatened on or before
Closing, any action or proceeding before any court or
governmental agency or body or by a public authority to restrict
or prohibit the acquisition by Seller of the Assets.
(n) Purchaser shall have made such audits and inspections of Seller
and its assets and business as Purchaser deems necessary and
appropriate, and the results of such inspections and audits shall
be satisfactory to Purchaser.
The satisfaction of any of the conditions set forth in this subsection may be
waived by Purchaser in writing delivered at or prior to the Closing.
10.2. Obligation of Seller to Close. The obligation of Seller to effect the
transactions contemplated by this Agreement is subject to the
satisfaction prior to or at the Closing of the following conditions:
(a) The representations and warranties of Purchaser set forth in
Section 9 of this Agreement shall have been true in all material
respects when made and at the time of the Closing as if those
representations and warranties had been made at that time.
(b) Purchaser shall have performed and complied in all material
respects with all agreements and conditions required by this
Agreement to be performed or complied with by Purchaser prior to
or at the Closing.
(c) The Board shall have approved the transactions contemplated by
this Agreement under the ICC Termination Act of 1995 or exempted
the transactions contemplated by this Agreement from the
provisions of the ICC Termination Act of 1995 requiring Board
approval, and that approval or exemption shall have become final
or effective (as the case may be).
(d) Seller shall have received an executed copy of each document,
agreement and instrument referred to in this Agreement required
to be executed and delivered by Purchaser prior to or at the
Closing.
(e) The transactions contemplated by this Agreement to whatever
extent necessary shall have been performed pursuant to proper and
requisite action taken by Purchaser under applicable law.
13
(f) There shall not have been instituted or threatened on or before
Closing, any action proceeding before any court or governmental
agency or body or by a public authority to restrict or prohibit
the acquisition by Purchaser of the Assets.
The satisfaction of any condition set forth in this subsection may be waived by
Seller in writing delivered at or prior to the Closing.
11. CLOSING
11.1. Place of Closing. The closing of the transactions contemplated by
this Agreement ("Closing") shall take place at the offices of
Purchaser located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇.
11.2. Date and Time of Closing. The Closing shall take place at 10:00 a.m.
Eastern Standard Time not later than the 10th business day following
the date on which an order by the Board approving the acquisition of
the Assets by Purchaser has become final or the date on which an
exemption from approval by the Board becomes effective. The date on
which the Closing occurs is referred to in this Agreement as the
"Closing Date."
11.3. Deliveries By Purchaser at Closing; Post-Closing Deliveries. At the
Closing, Purchaser shall:
(a) Pay to Seller one-half of the Cash Portion as adjusted (subject
to any withholding that Purchaser is required to make under
Section 1445 of the Internal Revenue Code of 1986, as amended).
(b) Deliver to Seller a true and correct copy of written
instructions issued by Emons to Emons' transfer agent directing
the transfer agent to issue certificates to Seller representing
the Shares.
(c) Deliver to Seller the Promissory Note.
(d) Deliver to Seller, on or before the twentieth (20th) day
following the Closing, a certificate or certificates
representing the Shares.
(e) Deliver to Seller its undertakings to assume, perform and
discharge the liabilities and obligations of Seller to the
extent assumed by Purchaser under this Agreement, and deliver
such other documents or instruments as are required of Purchaser
in order to effect or evidence the consummation of the
transactions contemplated by this Agreement.
(f) Purchaser shall take all other reasonable steps that Seller
reasonably requests in order to effectuate the transactions
contemplated by this Agreement.
11.4. Deliveries by Seller at Closing. At the Closing, Seller shall:
(a) Effect the transfer of the Assets to Purchaser by such quit
claim deed or deeds in recordable form and substantially in the
form of Appendix E hereto (as permitted for filing by a railroad
or transmitting utility where allowed), bills of sale,
assignments, releases, satisfactions and other documents of
transfer or release reasonably required to transfer the
interests of Seller in the Assets to
14
Purchaser free and clear of all liens (except Permitted Liens)
consistent with the terms of this Agreement (which deeds, bills
of sale, assignments and other documents may reflect payment of
such specific portions of the Purchase Price as requested by
Purchaser, provided that such allocations and direction will not
be inconsistent with Appendix C or the provisions of Section 1060
of the Internal Revenue Code of 1986, as amended).
(b) Furnish to Purchaser any consents to assignments necessary to
transfer to Purchaser all of Seller's rights under the Contracts
listed on Appendix B.
(c) ▇▇▇▇ ▇. ▇▇▇▇▇ shall have executed and delivered to Purchaser a
Noncompetition Agreement in the form of Appendix D hereto.
(d) Except to the extent a corporate Seller consummates a plan of
liquidation, each corporate Seller shall within 120 days of the
Closing Date execute and deliver to Purchaser articles of
amendment to its articles of incorporation effecting a change in
such Seller's name so as to permit the use of such name by
Purchaser in the operation of its business.
(e) Furnish to Purchaser an affidavit as to Seller of the type
referred to in Section 1445(b)(2) of the Internal Revenue Code of
1986, as amended, if Seller wishes to avoid the withholding of
taxes as provided in Section 1445.
(f) Take all other reasonable steps that Purchaser reasonably
requests in order to effectuate the transactions contemplated by
this Agreement, including the assignment of all Contracts that
Purchaser is to assume pursuant to this Agreement.
12. BOOKS, RECORDS AND CORPORATE NAME
12.1. Access to Books and Records.
(a) Prior to Closing, Seller will permit employees and agents of
Purchaser (including consultants, accountants and attorneys) and
its lenders, during normal business hours and on reasonable
notice, to have access to Seller's properties for the purpose of
inspecting the Assets and to inspect and copy Contracts, books,
agreements, plans, reports and other records reflecting or
reasonably relating to the Assets. Seller may have
representatives present during any inspection, and may obtain
any written reports produced by environmental consultants to
Purchaser in connection with inspections of the Assets. Seller
will cooperate with Purchaser's and its lenders' investigation
of the Assets and the status of title to the Assets, and shall
use reasonable efforts to obtain consents from third parties
necessary for Purchaser or its consultants to inspect
transportation contracts with those third parties. Prior to
Closing (including if Closing never occurs), Purchaser agrees
that all information and records obtained by Purchaser or its
lenders pursuant to this Section shall be maintained as
confidential.
(b) From and after the Closing,
1. Purchaser will cooperate with Seller to make available to
Seller, under reasonable conditions, any records of Seller
transferred to Purchaser
15
pursuant to this Agreement necessary for Seller's corporate
or tax purposes; and
2. Seller will cooperate with Purchaser to make available to
Purchaser, under reasonable conditions, any records of
Seller related to the Assets that may be useful to Purchaser
in the ownership or operation of the Assets or the
performance of obligations assumed by Purchaser.
13. OPERATIONS PRIOR TO CLOSING
13.1. Operations Prior to Closing. Seller agrees that, except with the
written consent of Purchaser, from the date of this Agreement to the
Closing:
(a) Seller will not grant (or make any material amendment to) any
trackage rights, operating rights, licenses, permits, easements
or encumbrances affecting the Assets;
(b) Seller will not sell, lease, assign, mortgage, hypothecate or
otherwise transfer or dispose of any of the Assets (other than
Inventory used in the ordinary course of business);
(c) Seller shall maintain, repair and renew the Assets in the
ordinary course, consistent with past practices (and in any
event to a condition equal to their condition on the date of
this Agreement, ordinary wear and tear excepted);
(d) Seller shall maintain in full force and effect insurance
coverage (including any self-insurance programs) of the types
and in the amounts in existence on June 30, 1997, with respect
to the Assets;
(e) Seller shall maintain in full force and effect all Contracts,
licenses, authorizations and approvals necessary for or related
to the operation and use of the Assets as currently operated and
used; provided, however, that Seller may amend, extend or
terminate Contracts, licenses, authorizations and approvals in
the ordinary course of business following written notice to
Purchaser and written approval of such action from Purchaser;
and
(f) Seller shall cause all transportation contracts entered into
after the date of this Agreement to either specifically permit
or not prohibit assignment to a purchaser of the Rail Lines.
14. CONSENTS AND APPROVALS
14.1. Consents and Approvals. Purchaser and Seller each will cooperate and
use their best efforts to take, or cause to be taken, all actions,
and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to prepare all
necessary documentation, to effect promptly all necessary filings and
to satisfy all other conditions and obtain all necessary permits,
consents, approvals, orders and authorizations of or any exemptions
by, all third parties and all governmental entities necessary to
consummate the transactions contemplated by this Agreement. Purchaser
shall be solely responsible for filings or proceedings before the
Board with respect to the approval of the acquisition of the Assets
or securing an exemption from that approval.
16
Seller will, without cost to Purchaser, cooperate in the filings and
proceedings before the Board and provide any reasonably necessary
data in connection with securing approval or exemption. Prior to
filing any application for approval or exemption with the Board,
Purchaser will deliver a copy to Seller with sufficient time for
Seller to comment upon the application. Any costs, including filing
fees, associated with any filing before the Board shall be paid by
Purchaser.
15. INDEMNIFICATION
15.1. Purchaser's Indemnification. Purchaser shall defend, indemnify and
hold harmless the Seller from and against all claims, losses, costs
and expenses (including attorneys' fees and expenses) which arise out
of or are based on (i) the ownership or operation of the Assets after
the Closing, (ii) any material misrepresentation or material breach
of warranty by Purchaser and (iii) all liabilities of Seller assumed
by Purchaser pursuant to this Agreement, and (iv) any breach of an
Environmental Law or the placement of any Hazardous Substance in, on,
about or under the Assets at any time after the Closing.
15.2. Seller's Indemnification. Seller shall defend, indemnify and hold
harmless Purchaser from and against all claims, losses, costs and
expenses (including attorneys' fees and expenses) which arise out of
or are based on (i) the ownership or operation of the Assets by
Seller prior to the Closing; (ii) any material misrepresentation or
material breach of warranty by Seller; (iii) all liabilities of
Seller that are not assumed by Purchaser pursuant to this Agreement
and (iv) (except ▇▇▇▇ ▇. ▇▇▇▇▇) any breach of an Environmental Law or
the existence of any Hazardous Substance in, on, about or under the
Assets at any time prior to the Closing.
15.3. Apportionment. All claims, losses, costs, and expenses giving rise to
any indemnification hereunder, the underlying facts of which have
arisen in part prior to the Closing and in part on or after the
Closing, shall be reasonably apportioned between Seller and
Purchaser.
15.4. Indemnification Procedures.
(a) The party seeking indemnification pursuant to Sections 15.1 or
----------------
15.2 above (the "Indemnified Party") shall give the party
----
obligated to indemnify (the "Indemnifying Party") notice of any
claim or assertion of liability by a third party with respect to
which the Indemnified Party is seeking indemnification (a
"Claim").
(b) The Indemnifying Party shall have the right to undertake the
defense of such Claim (by counsel or other representatives of
its own choosing and reasonably acceptable to the Indemnified
Party) at the Indemnifying Party's sole risk and cost.
Notwithstanding the fact that the Indemnifying Party undertakes
the defense of a Claim, if there is a reasonable probability
that the Claim may materially and adversely affect the
Indemnified Party, the Indemnified Party (by counsel or through
other representatives of its own choosing) shall have the right,
at its expense, to participate in the defense, compromise or
settlement of the Claim.
17
(c) If the Indemnifying Party undertakes the defense of a Claim, (i)
the Indemnifying Party shall keep the Indemnified Party informed
of the status of the defense and furnish the Indemnified Party
with copies of all documents, instruments and information
reasonably requested by the Indemnified Party in connection with
the Claim; (ii) the Indemnified Party (by counsel or other
representatives of its own choosing and at its own expense) shall
have the right to consult with the Indemnifying Party (and its
counsel and representatives) concerning the Claim, and the
Indemnifying Party and the Indemnified Party (and their
respective counsel and representatives) shall cooperate with
respect to the Claim; and (iii) the Indemnifying Party shall not,
without the written consent of the Indemnified Party, settle or
compromise a Claim or consent to the entry of a judgment without
obtaining from the claimant or plaintiff an unconditional release
of all liability of the Indemnified Party in respect of such
Claim in a form satisfactory to the Indemnified Party and under
circumstances which do not require the Indemnified Party to pay
any money or consent to the taking or withholding of any action
affecting it or any of its properties, assets or businesses.
(d) If the Indemnifying Party does not elect to undertake the defense
of a Claim or fails to defend the Claim within a reasonable time
after notice of the Claim, the Indemnified Party shall have the
right to undertake the defense, compromise or settlement of the
Claim (by counsel or other representatives of the Indemnified
Party's own choosing) on behalf of, for the account of and at the
risk and cost of the Indemnifying Party. In such event, the
Indemnifying Party shall pay (in addition to any other sums
required to be paid under the terms of this Agreement) the costs
and expenses incurred by the Indemnified Party in connection with
the defense, settlement or compromise of the Claim as and when
those costs are incurred.
16. TERMINATION
16.1. Grounds for Termination. This Agreement and the consummation of the
transactions contemplated by this Agreement may be terminated prior
to the Closing:
(a) By the agreement in writing of Seller and Purchaser at any time,
(b) By either Purchaser or Seller if the Closing does not occur
prior to [DECEMBER 15, 1997], and the failure of the Closing to
occur is not due to the fault of, or breach of this Agreement
by, either party,
(c) By Purchaser, pursuant to Section 5.1(c) hereof,
--------------
(d) By Purchaser, by written notice to Seller, if Seller has made a
material misrepresentation in, or if Seller is guilty of a
material breach of the representations and warranties of seller
contained in, this Agreement, or if there has been a failure by
Seller to comply with any of its material obligations under this
Agreement (including without limitation the failure by Seller to
timely satisfy the conditions to Closing set forth in Section
-------
10.1), and such material
----
18
misrepresentation or breach of warranty or failure has not been
cured after 30 days' notice,
(e) By Seller, by written notice to Purchaser, if Purchaser has made
a material misrepresentation in, or if Purchaser is guilty of a
material breach of the representations and warranties of
Purchaser contained in, this Agreement, or if there has been a
failure by Purchaser to comply with any of its material
obligations under this Agreement (including without limitation
the failure by Purchaser to timely satisfy the conditions to
Closing set forth in Section 10.2), and such material
------- ----
misrepresentation or breach of warranty material failure has not
been cured after 30 days' notice, or
(f) By either Purchaser or Seller if the Board shall have disapproved
the transactions contemplated by this Agreement and such
disapproval shall have become final and not subject to further
proceedings or appeal, whether by lapse of time or otherwise.
Termination by Purchaser or Seller pursuant to paragraphs (c) or (d) above shall
not relieve the non-terminating party of any liability for misrepresentation or
breach.
17. MISCELLANEOUS
17.1. Title and Other Descriptions. Prior to the Closing, the description of
the Assets may be changed by mutual agreement of Purchaser and Seller
to add or delete items of tangible property or Contracts. From time to
time after the Closing, at Purchaser's request and without further
consideration, Seller will execute and deliver other instruments of
conveyance and transfer and take other actions as Purchaser reasonably
requires to convey, transfer to and vest in Purchaser whatever title
Seller may have in and to the Assets, and to put Purchaser in
possession of the Assets. In the case of Contracts and rights, if any,
that cannot be transferred effectively without the consent of third
parties, Seller will request these consents promptly and will make all
reasonable efforts to obtain the consents. From time to time after the
Closing, at Seller's request and without further consideration,
Purchaser will execute and deliver other instruments of conveyance,
transfer and assumption and take other actions as Seller reasonably
requires to assume the liabilities and obligations of Seller to be
assumed by Purchaser pursuant to this Agreement.
17.2. Waiver. Purchaser may in writing extend the time for or waive
performance of any of the obligations, representations or warranties
of Seller under this Agreement. Seller may in writing take similar
action with respect to the obligations, representations or warranties
of Purchaser under this Agreement.
17.3. Expenses. Purchaser shall be responsible for and shall pay all
expenses, including attorney's fees, incurred by Purchaser in
connection with this Agreement and the consummation of the
transactions contemplated by this Agreement, and Seller shall be
responsible for and shall pay all expenses, including attorney's fees,
incurred by Seller in connection with this Agreement and the
consummation of the transactions contemplated by this Agreement,
except that sales, use, gross receipts, excise or similar taxes or
governmental charges arising or levied with respect to the sale and
transfer of the Assets,
19
whether assessed against the Assets, Seller or Purchaser, shall be
shared equally between Seller and Purchaser.
17.4. Transitional Matters. Prior to the Closing, Purchaser and Seller may
agree on different or additional procedures to implement their
respective rights and obligations, including procedures which are
required to minimize or avoid any disruption of the settlement of
interline accounts by draft in the normal course of business.
17.5. Information Releases. No press release, information release or other
public or private announcement of the existence of this Agreement or
of the pendency of the transactions contemplated by this Agreement
shall be made by any party without the prior approval of the other
party, except as may be required by law including without limitation,
reporting and disclosure requirements of the Securities and Exchange
Commission or the rules of the NASDAQ.
17.6. Entire Agreement. This Agreement, including the Appendices and
Exhibits attached to this Agreement, constitutes the entire agreement
and understanding between Seller and Purchaser with respect to the
sale and purchase of the Assets and the other transactions
contemplated by this Agreement. All prior representations,
understandings and agreements between the parties with respect to the
purchase and sale of the Assets and the other transactions
contemplated by this Agreement are superseded by the terms of this
Agreement.
17.7. Choice of Law. The provisions of this Agreement shall be construed and
interpreted in accordance with the laws of the Commonwealth of
Pennsylvania, including for the purposes of choice of law, as though
all acts and omissions related to this Agreement occurred in
Pennsylvania.
17.8. Severability. The provisions of this Agreement shall, where possible,
be interpreted in a manner necessary to sustain their legality and
enforceability; the unenforceability of any provision of this
Agreement in a specific situation shall not affect the enforceability
of that provision in other situations or of other provisions of this
Agreement.
17.9. Counterparts. This Agreement may be executed in two or more original
counterparts, each of which shall for all purposes be considered an
original of this Agreement.
17.10. Headings. Section and subsection headings contained in this Agreement
are inserted for convenience of reference only, shall not be deemed to
be a part of this Agreement for any purpose, and shall not in any way
define or affect the meaning, construction or scope of any of the
provisions of this Agreement.
17.11. Successors and Assigns. This Agreement shall be binding upon, and
inure to the benefit of the respective successors and assigns of the
parties. Purchaser may assign its rights under this Agreement, in
whole or in part, to Emons or to another direct or indirect wholly-
owned subsidiary of Emons.
17.12. Notices. All notices given pursuant to this Agreement shall be
delivered by hand, sent by United States registered or certified mail,
postage prepaid, delivered by recognized express mail or overnight
courier service, or delivered by electronic facsimile
20
with a confirmation copy delivered by any of the preceding methods,
addressed as follows (or to another address or person as a party may
specify on notice to the other):
(a) If to Seller (which shall constitute notice to all Sellers):
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with copies to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(b) If to Purchaser:
Penn Eastern Rail Lines, Inc.
c/o Emons Transportation Group, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chairman and CEO
with copies to:
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
IN WITNESS WHEREOF, the parties hereto have executed this Purchase
Agreement as of the date first written above.
/s/▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ NORTHERN RAILWAY, INC.
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Title: President
----------------------------------------
21
▇▇▇▇▇▇▇ VALLEY RAILWAY, INC.
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Title: President
-------------------------------------
East Penn Railways, Inc.
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Title: President
-------------------------------------
BRISTOL INDUSTRIAL TERMINAL RAILWAY, INC.
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Title: President
------------------------------------
PENN EASTERN RAIL LINES, INC.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Title: VP - Finance, Controller & Secretary
------------------------------------
22
