ASSET PURCHASE AGREEMENT
THIS
ASSET PURCHASE AGREEMENT ("Agreement") is effective as of the date last
appearing on the signature page to this Agreement evidencing the approval hereof
by Purchaser and Seller (the "Effective Date"), by and between ACE TRAILER
&
STORAGE, INC., a Missouri corporation (hereinafter referred to as “Seller”),
AMERICAN TRAILER & STORAGE, INC., a Missouri corporation (hereinafter
referred to as the "Purchaser"), and XXX XXXXXXX, majority stockholder of Seller
(“Owner”).
WITNESSETH:
WHEREAS,
Seller owns certain semi-trailers and related business assets located at its
place of business and is engaged in the business of leasing such semi-trailer
assets to others for use in the transportation of goods (the "Seller's
Business") and Seller desires to sell and Purchaser desires to purchase certain
of the assets and properties, tangible and intangible, of Seller used by Seller
in connection with Seller's Business, as more specifically set forth in this
Agreement.
NOW,
THEREFORE, for and in consideration of the premises, mutual promises, covenants,
conditions, agreements, representations, and warranties contained in the
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. PURCHASE
AND SALE OF ASSETS
1.1 Purchase
and Sale of Assets. Subject
to the terms and conditions in this Agreement, on the Closing Date
(as
hereinafter defined) Seller agrees to sell to the Purchaser, and Purchaser
agrees to purchase, free and clear of any liens or encumbrances, the following
assets (collectively the "Assets”):
(a) all
of
Seller’s semi-trailers (a list describing such semi-trailers with agreed values
is attached hereto as Exhibit
A);
(b) all
goodwill associated with or arising and growing out of Seller’s Business,
including a list of all the Seller’s customers that have rented or purchased
semi-trailers and all non-disclosure, non-compete and similar agreements with
current or former employees of Seller that have not expired on their face;
the
parties hereto recognize such goodwill as a valuable property right, distinct
and apart from the other assets herein conveyed; (a list describing such
customers and their contact information is attached hereto as Exhibit
B-1;
a list
of such non-disclosure and non-compete agreements is attached hereto as
Exhibit
B-2).
1.2 Assumption
of Certain Obligations of Seller.
Subject
to the terms and conditions in this Agreement, on the Closing Date Purchaser
shall assume and agree to perform:
(a) the
rental agreements of Seller that relate to semi-trailers leased by Seller to
others (the “Rental Agreements”). A list of such Rental Agreements is attached
hereto as Exhibit
C.
(b) the
lease-purchase agreement between Seller and Topsail, LLC under which Seller
leases and has the right to purchase ten (10) semi-trailers from Topsail, LLC
(the “Lease-Purchase Agreement”). A copy of such Lease-Purchase Agreement is
attached hereto as Exhibit
D.
(c) the
rental agreement with option to purchase between Seller and Xxxxxxx Pallet
Company under which Xxxxxxx Pallet Company leases and has the right to purchase
fifteen (15) semi-trailers from Seller (the “Pallet Agreement”). A copy of the
Pallet Agreement is attached hereto as Exhibit
E.
Purchaser
shall assume no other obligations of Seller.
Seller
shall retain all other assets used in the operation of Seller’s Business,
including but not limited to accounts receivable.
1.2 Conveyance
Documents.
The
sale and delivery of the Assets shall be made by such Bills of Sale and other
instruments of assignment and transfer, including certificates of title showing
no liens thereon, as Purchaser shall reasonably request, in recordable form
where appropriate.
1.3 Purchase
Price.
The
purchase price for the Assets shall be One Million Seventy Thousand Dollars
($1,070,000.00), payable at Closing as follows: (i) by wire transfer or other
available funds of One Million Twenty Thousand Dollars ($1,020,000); and (ii)
by
depositing Fifty Thousand Dollars ($50,000) (the “Escrow Fund”) with the Escrow
Agent (as hereinafter defined) to be held and disposed of pursuant to the Escrow
Agreement (as hereinafter defined).
2. REPRESENTATIONS,
WARRANTIES AND COVENANTS OF SELLER AND OWNER
2.1 Representations
and Warranties.
Seller
and Owner represent, warrant and covenant that:
(a) Organization
and Authorization.
Seller
is a corporation duly organized, validly existing and in good standing under
the
laws of the State of Missouri. Seller has all of the requisite corporate power
and authority to own, lease, and operate its properties, to carry on its
business as now being conducted and to execute, deliver, and perform this
Agreement and all writings relating thereto. The execution, delivery and
performance of this Agreement have been duly and validly authorized by the
Board
of Directors of the Seller and by its shareholders. This Agreement constitutes
the valid and binding obligation of Seller and Owner enforceable in accordance
with its terms. Neither the execution and delivery of this Agreement nor the
consummation by Seller of the transactions contemplated hereby nor compliance
with any of the provisions hereof will: (i) conflict with or result in a breach
of the Articles of Incorporation or By-Laws of Seller; (ii) violate any statute,
law, rule or regulation or any writ, injunction, or decree of any court or
governmental authority; or (iii) violate or conflict with or constitute a
default under or give rise to right of any termination, cancellation or
acceleration under any agreement to which Seller is a party or by which it
or
its assets or properties may be bound. Except for such consents or notifications
as may be required by the State of Missouri respecting the sale of titled
semi-trailers, no consent or approval or notification to any governmental
authority is required in connection with execution and delivery by Seller of
this Agreement or the consummation of the transactions contemplated
hereby.
(b) Title
to Assets.
Seller
has good and marketable title to all the Assets, free and clear of all security
interests, liens, pledges, claims, encumbrances, options, rights of first
refusal, mortgages, security agreements or other agreements, except for the
Rental Agreements, the Lease-Purchase Agreement and the Pallet Agreement
(collectively, the "Encumbrances"). Purchaser shall take subject to such only
the Encumbrances, and all other leases, security interests, liens, pledges,
claims, options, rights of first refusal, mortgages, security agreements or
other agreements shall have been properly terminated to the satisfaction of
Purchaser by or on the date of Closing.
(c) Taxes.
At or
by Closing Seller will have paid all taxes, assessments, and penalties due
and
payable to the United States and any State (“Taxes”), and Seller shall provide
proof of the above at or prior to Closing.
(d) Financial
and Asset Information.
The
financial and asset information provided to Purchaser fairly present the
material condition and revenue results of Seller’s Assets and Seller’s Business
as of the dates thereof and such information is complete in all material
respects. Seller has no material undisclosed liabilities respecting the Assets
or Seller’s Business.
(e) Conduct
of Business. Seller
has since September 15, 2006 and will until Closing conduct business in the
ordinary course and has not since September 15, 2006 sold and will not sell
any
of its assets except in the ordinary course of business.
(f) Compliance
with Laws.
Seller
has complied with, and is not in violation of, applicable federal, state or
local statutes, laws and regulations affecting the Assets or the operation
of
Seller's Business, specifically including any federal, state or local laws
and
regulations respecting protection of the environment (“Laws”).
(g) Litigation.
Except
as set forth on Schedule
2.1(g)
attached
hereto, there are no suits, actions, or other legal or administrative
proceedings, including, but not limited to, breach of lease, warranty, product
or personal injury claims, pending or threatened against or affecting Seller,
Seller's Business or the Assets. Any litigation in which Owner is engaged has
and at closing will have no affect on Seller’s Business or the
Assets.
(h) Full
Disclosure.
None of
the representations and warranties made by Seller or on its behalf contains
or
will contain any untrue statement of material fact, or omit any material fact
the omission of which would be misleading.
3. REPRESENTATIONS,
WARRANTIES AND COVENANTS OF PURCHASER
Purchaser
represents, warrants and covenants that it is a corporation duly organized,
validly existing and in good standing under the laws of the State of Missouri.
Purchaser has all of the requisite corporate power and authority to own, lease,
and operate its properties and to carry on its business as now being conducted
and to execute, deliver, and perform this Agreement. The execution, delivery
and
performance of this Agreement have been duly and validly authorized by the
Board
of Directors of Purchaser. This Agreement constitutes the valid and binding
obligation of Purchaser enforceable in accordance with its terms. Neither the
execution and delivery of this Agreement nor the consummation by Purchaser
of
the transactions contemplated hereby nor compliance with any of the provisions
hereof will: (i) conflict with or result in a breach of the Articles of
Incorporation or By-Laws of Purchaser; (ii) violate any statute, law, rule
or
regulation or any writ, injunction, or decree of any court or governmental
authority; or (iii) violate or conflict with or constitute a default under
or
give rise to right of any termination, cancellation or acceleration under any
agreement to which Purchaser is a party or by which it or its assets or
properties may be bound. Except for notification by Purchaser’s parent
corporation to the Securities and Exchange Commission and, if required, certain
state securities commissioners, no consent or approval or notification to any
governmental authority is required in connection with execution and delivery
by
Purchaser of this Agreement or the consummation of the transactions contemplated
hereby or thereby.
4. WARRANTIES
AT CLOSING
All
covenants, representations and warranties of Seller and Owner set forth in
this
Agreement and in any written statements delivered to Purchaser by Seller under
this Agreement will also be true and correct as of the Closing Date as if made
on that date. All covenants, representations and warranties of Purchaser set
forth in this Agreement and in any written statements delivered to Seller by
Purchaser under this Agreement will also be true and correct as of the Closing
Date as if made on that date.
5. CONDITIONS
PRECEDENT TO PURCHASER'S PERFORMANCE
The
obligations of Purchaser to purchase the Assets under this Agreement are subject
to the satisfaction, at or before the closing, of all the conditions set out
below in this Article. Purchaser may waive any or all of these conditions,
in
whole or in part, without prior notice; provided however, that no such waiver
of
a condition shall constitute a waiver by Purchaser of any of its other rights
or
remedies, at law or in equity, if Seller shall be in default of any of its
representations, warranties, or covenants under this Agreement.
5.1 Performance
of Seller.
Seller
shall have performed, satisfied, and complied with all covenants, agreements,
and conditions required by this Agreement to be performed or complied with
by
Seller on or before the Closing Date.
5.2 No
Material Changes.
From
September 15, 2006 to the Closing Date, there shall not have been any material
adverse changes in the Assets or Seller's Business.
5.3 Absence
of Litigation.
No
action, suit, or proceeding before any court or any governmental body or
authority pertaining to the transaction contemplated by this Agreement or to
its
consummation shall have been instituted or threatened against Seller on or
before the Closing Date.
5.4 Corporate
Approval.
The
execution and delivery of this Agreement by the Seller and the performance
of
its covenants and obligations under this Agreement, shall have been duly
authorized by all necessary corporate action.
5.5 Conveyance
Documents.
At the
Closing, Seller shall have executed and delivered to Purchaser the necessary
instruments and documents to vest in Purchaser title to the Assets, free and
clear of all liens, encumbrances, and security interests, save and except for
the obligations respecting the Encumbrances, including, but not limited to
(i)
assignment of all Rental Agreements, the Lease-Purchase Agreement and the Pallet
Agreement (the “Assignment of Contracts and Leases”); (ii) Xxxx(s) of Sale;
(iii) certificates of title to each semi-trailer owned by Seller with such
releases as may be necessary to remove any notation of lien on any such
certificates; (iv) consent of Topsail, LLC to the Assignment of Contracts and
Leases; (v) consent of Xxxxxxx Pallet Company to the Assignment of Contracts
and
Leases; (vi) Escrow Agreement; (vii) the Elliot Assignment, as defined in
Section 7.6 below, and (viii) such other assignments, consents or other
instruments of conveyance and Purchaser may reasonably request.
5.6 Certificate
of Good Standing.
At the
Closing, the Seller shall provide to Purchaser a Certificate of Good Standing
from the Secretary of State of Missouri.
5.7 Approval
of Documents.
The
form and substance of all certificates, instruments, and other documents
delivered to Purchaser under this Agreement shall be satisfactory in all
reasonable respects to Seller, Purchaser and their counsel.
5.8 Purchaser’s
Due Diligence.
The
results of Purchaser’s investigations and review of accounting, legal,
regulatory, environmental and other due diligence investigations and review
shall be satisfactory in all reasonable respects to Purchaser. In connection
with such due diligence, Seller and Owner shall provide to Purchaser and its
representatives reasonable access to Seller’s management, books, assets, records
and properties.
6. ESCROW
6.1 Escrow
Agreement.
The
performance by Seller of its covenants, agreements, indemnities and obligations
under this Agreement shall be secured by the Escrow Fund to be held and disposed
of by the escrow agent (“Escrow Agent”) pursuant to an Escrow Agreement in the
form set forth on Exhibit
F
attached
hereto (the “Escrow Agreement”), which shall be executed and delivered by Seller
and Buyer at Closing.
6.2 Purchase
Price Adjustment.
In the
event that during the six-month period following the Closing (the “Escrow
Period”) there is a breach of any Rental Agreement by any lessee of any
semi-trailer acquired hereunder, Purchaser shall immediately notify Seller
and
will use reasonable commercial efforts at Purchaser’s cost and expense to
recover possession of any semi-trailer(s). If after such reasonable commercial
efforts, Purchaser is unable to recover possession of any semi-trailer(s)
Purchaser shall deliver notice of failure to recover possession to Seller
specifying the semi-trailer(s) not recovered and the value thereof as set forth
on Exhibit
A
(the
“Stated Value”). If Seller has not paid the Stated Value to Purchaser within
five (5) business days after receipt of such notice, Purchaser shall be entitled
to receive immediately from the Escrow Fund an amount equal to the Stated Value
for each unrecovered semi-trailer. Upon disbursement of such Escrowed Funds
to
Purchaser, Seller shall be assigned any and all of Purchaser's interest in
or to
such trailer(s) and Seller may thereafter take such actions as it deems
appropriate to acquire, use or dispose of the trailer(s) in question. Seller’s
obligation to pay the Stated Value as set forth in this Section 6 is limited
to
the amount of the Escrow Fund, and Seller shall have no liability to Purchaser
for any rentals not paid under any of the Rental Agreements, nor for any costs
incurred by Purchaser in seeking to recover the possession of any semi-trailers.
6.3 Escrow
Fund Release.
Provided that no dispute then exists under this Section 6 or under Section
9 of
this Agreement as to any claim by Purchaser to all or a portion of the Escrow
Fund, the remaining Escrow Fund balance will be released to Seller on the first
business day following the expiration of the Escrow Period and the Escrow
Agreement shall be deemed terminated. Release of the Escrow Fund and termination
of the Escrow Agreement shall have no effect upon any liability of Seller or
Owner to Purchaser under any other provision of this Agreement.
7. CLOSING
7.1 Closing.
The
sale, transfer and assignment of the Assets and performance of the other
transactions contemplated herein shall be consummated at a closing (herein
referred to as the “Closing”) to be held at the offices of McDowell, Rice, Xxxxx
& Xxxxxxxx, counsel to Purchaser, on or before October 27, 2006.
7.2 Seller’s
Obligations. At
the
Closing, Seller shall deliver to Purchaser all instruments of conveyance,
assignment and transfer, the Assets and possession thereof, and any other
documents necessary to conclude the agreements between the parties.
7.3. Purchaser’s
Obligation.
At the
Closing, Purchaser shall deliver to Seller cash or certified or bank cashier’s
check in the amount of the purchase price less the Escrow Fund, shall fund
the
Escrow Fund, and shall deliver any other documents necessary to conclude the
agreements between the parties.
7.4 Cooperation. At
any
time before or after the Closing as appropriate, Seller will execute,
acknowledge, and deliver any further assignments, conveyances, and other
assurances, documents, and instruments of transfer that may be reasonably
requested by Purchaser and will take any other action consistent with the terms
of this Agreement that may reasonably be requested by Purchaser for the purpose
of assigning, transferring, granting, conveying, and confirming to Purchaser,
or
reducing to possession, the Assets. Within a reasonable time after Closing,
the
Owner or a qualified representative of Seller acceptable to Purchaser will
personally introduce designated members of Purchasers’ sales staff to customers
of Seller selected by Purchaser.
7.5 Unrented
Semi-Trailers.
In the
event one or more of the semi-trailers constituting part of the Assets has
not
be rented and remains at Seller’s storage facility as of the Closing, Purchaser
shall arrange for removal of such semi-trailer(s) on or before the
20th
day
following Closing. Such semi-trailers shall be empty, free of debris and broom
clean. Until the later of the date of removal or the 20th
day
following Closing, Seller shall pay any storage or other fees or expenses
associated with storage of such semi-trailers and thereafter such fees or
expenses shall be the responsibility of Purchaser.
7.6 Assignment
of Cause of Action.
If
requested by Purchaser, Seller shall assign to Purchaser Seller’s cause of
action respecting breach by former employee of Seller Xxxxxx X. Xxxxxx of
non-compete agreement between Seller and Xxxxxx X. Xxxxxx, such assignment
to be
in form and substance satisfactory to Purchaser (the “Elliot
Assignment”).
8. COSTS
Each
of
the parties shall pay all of their own costs and expenses (including attorneys’
fees) incurred or to be incurred in the negotiation and preparation of this
Agreement and in closing and carrying out the transactions contemplated by
this
Agreement.
9. INDEMNIFICATION
9.1 Seller’s
and Owner’s Indemnification.
Seller
and Owner jointly and severally indemnify and agree to hold Purchaser, its
shareholders, officers, directors and representatives (collectively, the
“Purchaser Parties”) harmless from, against and in respect of, and shall
(subject to the limitations set forth in this Section 9) on demand reimburse
the
Purchaser Parties for, any payment, loss, cost or expense (including reasonable
attorneys’ fees and reasonable costs of investigation incurred in defending
against such payment, loss, cost or expense or claim therefor) made or incurred
by or asserted against Purchaser Parties at any time after the date of Closing
in respect of
(a)
any
and all liabilities or obligations of Seller, or claims against or imposed
on
Purchaser Parties, of any nature (whether accrued, absolute, contingent or
otherwise and whether a contractual, tax or other type of liability, obligation
or claim) not assumed by Purchaser pursuant to this Agreement, and specifically
including the litigation described on Schedule 2.1(g);
(b)
any
and all damage or deficiency resulting from any omission, misrepresentation,
breach of warranty, or nonfulfillment of any term, provision, covenant or
agreement on the part of Seller contained in this Agreement, or from any
misrepresentation in, or omission from, any instrument furnished to Purchaser
pursuant to this Agreement;
(c)
any
and all liabilities, obligations, claims, damage or deficiency arising out
of or
related to any matter relating to the operation of Seller’s Business prior to
the date of Closing or relating to Seller’s or Owner’s relationship with any
other stockholder, employee, former employee, contractor or other party to
any
agreement with Seller or Owner.
9.2 Purchaser’s
Indemnification.
Purchaser agrees to indemnify and hold Seller harmless against, and will
reimburse Seller on demand for, any payment, loss, cost or expense (including
reasonable attorneys’ fees and reasonable costs of investigation incurred in
defending against such payment, loss, cost or expense or claim therefor) made
or
incurred by or asserted against Seller at any time after the date of Closing
in
respect of any omission, misrepresentation, breach of warranty, or
nonfulfillment or any term, provision, covenant or agreement on the part of
Purchaser contained in this Agreement, or from any misrepresentation in, or
omission from, any instrument furnished or to be furnished to Seller pursuant
to
this Agreement.
9.3 Limitation.
Notwithstanding any provision herein to the contrary, Purchaser Parties shall
not be entitled to recover against Seller and/or Owner respecting the
obligations under Section 9.1 of this Agreement until the collective loss,
liability or damage (including reasonable attorneys’ fees and expenses) equals
or exceeds $10,750.
9.4 Conditions
of Indemnification.
With
respect to any actual or potential claim, any written demand, the commencement
of any action, or the occurrence of any other event that involves any matter
or
related series of matters (a “Claim”) against which a party hereto is
indemnified (the “Indemnified Party”) by another party (the “Indemnifying
Party”) under Section 9.1 or 9.2 hereof:
(a)
Promptly after the Indemnified Party first receives written documents pertaining
to the Claim, or if such Claim does not involve a third party Claim (a “Third
Party Claim”), promptly after the Indemnified Party first has actual knowledge
of such Claim, the Indemnified Party shall give notice to the Indemnifying
Party
of such Claim in reasonable detail and stating the amount involved, if known,
together with copies of any such written documents.
(b)
The
Indemnifying Party shall have no obligation to indemnify the Indemnified Party
with respect to any Claim if (i) the Indemnified Party fails to give the notice
with respect thereto in accordance with subsection (a) of this Section 9.4,
or
(ii) the notice with respect thereto is not given on or before the second
anniversary of the date of Closing.
(c)
If
the Claim involves a Third Party Claim, then the Indemnifying Party shall have
the right, at its sole cost, expense and ultimate liability regardless of the
outcome, and through counsel of its own choice (which counsel shall be
reasonably satisfactory to the Indemnified Party), to litigate, defend, settle
or otherwise attempt to resolve such Third Party Claim; provided, however,
that
if in the Indemnified Party’s reasonable judgment a conflict of interest may
exist between the Indemnified Party and the Indemnifying Party with respect
to
such Third Party Claim, then the Indemnified Party shall be entitled to select
counsel of its own choosing, reasonably satisfactory to the Indemnifying Party,
in which event the Indemnifying Party shall be obligated to pay the fees and
expense of such counsel. Notwithstanding the preceding sentence, the Indemnified
Party may elect, at any time and at the Indemnified Party’s sole cost, expense
and ultimate liability, regardless of the outcome, and through counsel of its
choice, to litigate, defend, settle or otherwise attempt to resolve such Third
Party Claim. If the Indemnified Party so elects (for reasons other than the
Indemnifying Party’s failure or refusal to provide a defense to such Third Party
Claim), then the Indemnifying Party shall have no obligation to indemnify the
Indemnified Party with respect to such Third Party Claim, but such disposition
will be without prejudice to any other right the Indemnified Party may have
to
indemnification under Section 9.1 or 9.2 hereof, regardless of the outcome
of
such Third Party Claim. If the Indemnifying Party fails or refuses to provide
a
defense to any Third Party Claim, then the Indemnified Party shall have the
right to undertake the defense, compromise or settlement of such Third Party
Claim, through counsel of its own choice, on behalf of and for the account
and
at the risk of the Indemnifying Party, and he Indemnifying Party shall be
obligated to pay the costs, expenses and attorneys’ fees incurred by the
Indemnified Party in connection with such Third Party Claim. In any event,
Purchaser and Seller shall fully cooperate with each other and their respective
counsel in connection with any such litigation, defense, settlement or other
attempted resolution.
9.5 Escrow
Balance Applicable to Claims.
If
Purchaser Parties make a Claim under Section 9.1 and such Claim remains
unresolved at the expiration of the Escrow Period, then any then-existing Escrow
Balance shall be distributed to Purchaser and held in trust for application
against such Claim. If the Claim is finally resolved in such a manner that
there
remains an Escrow Balance after such resolution, such Escrow Balance shall
be
transferred to Seller promptly after such final resolution. Purchaser shall
pay
no interest on any Escrow Balance distributed to it and may commingle such
funds
with other Purchaser assets.
10. COVENANT
NOT TO COMPETE
Seller
and Owner covenant and agree that, as a material consideration running to Seller
and Owner for Purchaser’s payments hereunder, for a period of five (5) years
after the date of Closing Seller and Owner shall not engage in, carry on,
directly or indirectly, either for itself or himself or as a member of a
partnership or as a stockholder, investor, agent, associate or consultant of
any
person, partnership or corporation compete in the semi-trailer leasing or
portable storage business (i.e., semi-trailer leasing, container rental, dry-van
storage and portable office rental) within the states of Kansas, Missouri,
Illinois, Nebraska and Iowa (the “States”). The parties intend that the
covenants contained in this Section 10 shall be deemed to be a series of
separate covenants, one for each of the States and, except for geographic
coverage, each such separate covenant shall be identical in terms to the
covenant contained in this Section 10. Seller and Owner further covenant and
agree that for a period of five (5) years after the date of Closing neither
Seller nor Owner shall (i) recruit, hire, assist others in recruiting or hiring,
discuss employment with, or refer to others concerning employment, any of
Seller’s former employees who are employed by Purchaser or any employees of
Purchaser, or (iii) solicit any customers of Purchaser or former customers
of
Seller. Purchaser may enforce these provisions by any remedy under law or
equity, including the seeking of temporary and permanent injunctive relief,
and
the term of the covenants contained in this Section 10 shall be tolled for
the
period commencing on the date any successful action is filed for injunctive
relief or damages arising out of a breach by Seller or Owner of this Section
10
and ending upon final adjudication (including appeals) of such
action.
11. EXCLUSIVE
DEALING / NONDISCLOSURE
Seller
agrees not to offer to sell any of Seller’s assets to any other person or entity
and not to solicit, negotiate or accept any agreement with any third party
respecting the sale of any of Seller’s assets until such time as this Agreement
has been rightfully terminated by Seller or Purchaser. Each party agrees that
it
will not, without the prior written consent of the other, disclose publicly
or
to any third party (other than attorneys, lenders and advisors) the terms and
conditions of this Agreement except to the extent required by law or regulation.
12. TERMINATION
AND ABANDONMENT
12.1 Termination
and Abandonment.
This
Agreement may be terminated and abandoned at any time prior to Closing
(a)
by
mutual written consent of Purchaser and Seller; or
(b)
by
Purchaser, if the conditions set forth in Section 5 have not been complied
with
or performed in any material respect; or
(c)
by
Seller, if the conditions set forth in Section 5 have been satisfied and
Purchaser declines or refuses to close.
12.2 Notice
of
Termination.
In the
event of termination of this Agreement by either Purchaser or Seller pursuant
to
Section 12.1, the terminating party must give prompt written notice thereof
to the non-terminating party.
12.3 Effect
of
Termination
by
Agreement. In the event of the termination or abandonment of this Agreement
by
Purchaser or Seller pursuant to the provisions of Section 12.1 (a), this
Agreement shall be void and of no effect and there shall be no further liability
on the part of Seller or Purchaser.
12.4
Default by Seller. In
the
event of termination by Purchaser pursuant to the provisions of 12.1 (b),
Purchaser may xxx Seller for specific performance and for damages that Purchaser
may incur or has incurred as a result of such default, but subject to the
limitations of Section 9 hereof.
12.5
Default by Purchaser.
In the event of termination by Seller pursuant to the provisions of 12.1 (b),
Seller may xxx Purchaser for damages that Seller may incur or has incurred
as a
result of such default, but only in an amount not to exceed the purchase
price.
13. MISCELLANEOUS
PROVISIONS
13.1 Headings.
The
subject headings of the sections and subsections of this Agreement are included
for purposes of convenience only, and shall not affect the construction or
interpretation of any of its provisions.
13.2 Modification
and Waiver.
This
Agreement constitutes the entire agreement between the parties pertaining to
the
subject matter contained herein and supersedes all prior and contemporaneous
agreements, representations, and understandings of the parties. No supplement,
modification, or amendment of this Agreement shall be binding unless executed
in
writing by all the parties. No waiver of any of the provisions of this Agreement
shall be deemed, or shall constitute, a waiver of any other provision, whether
or not similar, nor shall any waiver constitute a continuing waiver. No waiver
shall be binding unless executed in writing by the party making the
waiver.
13.3 Counterparts. This
Agreement may be executed simultaneously in one or more counterparts, each
of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
13.4 Rights
of Parties.
Nothing
in this Agreement, whether express or implied, is intended to confer any rights
or remedies under or by reason of this Agreement on any persons other than
the
parties to it and their respective successors and assigns.
13.5 Survival.
The
terms, conditions, covenants, agreements, warranties and representations
contained in this Agreement shall survive payment of the purchase price by
Purchaser, transfer of the Assets and other incidents of Closing.
13.6 Binding
Affect; Assignment.
This
Agreement shall be binding on, and shall inure to the benefit of, the parties
to
it and their respective heirs, legal representatives, successors, and assigns.
This Agreement may not be assigned by Purchaser (except to a controlled
subsidiary of or parent of Purchaser) without the written consent of Seller,
which may be withheld for any reason.
13.7 Notices.
All
notices, requests, demands, and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given on the date of service
of served personally on the party to whom notice is given, or on the third
day
after mailing if mailed to the party to whom notice is to be given, by first
class mail, registered or certified, postage prepaid, or one day after deposit
for overnight delivery with a reputable overnight delivery service, and properly
addressed as follows:
If
to
Seller or
Owner: Mr.
Xxx
Xxxxxxx
Ace
Trailer & Storage, Inc.
0000
X.
0xx
Xx.
Xxxxxx
Xxxx, XX 00000-0000
With
a
copy to: Xxx
Xxxxxx
000
Xxxx
Xxxxxx, Xxxxx 0000
Xxxxxx
Xxxx, XX 00000
If
To
Purchaser: American
Trailer & Storage, Inc.
Attn:
Xx.
Xxxx Xxxxx
0000
Xxxxxxxxxx Xxxxxxxxxx
Xxxxxx
Xxxx, XX 00000 .
With
a
copy to: Xxxxxxx
X. Xxxxxx
McDowell,
Rice, Xxxxx & Xxxxxxxx
000
X.
00xx
Xx.,
Xxx. 000
Xxxxxx
Xxxx, XX 00000
12.8 Broker.
Purchaser and Seller agree that neither employed a broker in connection with
this transaction and each will indemnify the other from any claim for any
broker's or finder's fees, costs or expenses relating to the transactions
contemplated by this Agreement.
12.9 Governing
Law.
This
Agreement shall be construed in accordance with, and governed by, the laws
of
the State of Missouri.
[SIGNATURE
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IN
WITNESS WHEREOF, the parties to this Agreement have duly executed it on the
day
and year first above written.
SELLER:
ACE
TRAILER & STORAGE, INC.
Dated: 10/26/2006
By: //s//
Name: Xxx
Xxxxxxx
Title: President
OWNER:
//s//
Xxx
Xxxxxxx
PURCHASER:
Dated:
____10/26/2006_______ AMERICAN
TRAILER & STORAGE, INC., a Missouri corporation
By: //s//
Name: Xxxxxxx
X. Xxxxx, XX
Title: President
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