Exhibit 10.14
AMENDMENT NO. 1 TO
ASSET PURCHASE AGREEMENT
Amendment No. 1 dated as of September 30, 1994 (the "Amendment"), to
Asset Purchase Agreement dated as of June 17, 1994 (the "Agreement"), by and
among SWIFT TRANSPORTATION CO., INC., a Nevada corporation ("Swift"), SWIFT
TRANSPORTATION CO., INC., an Arizona corporation and a wholly-owned subsidiary
of Swift ("Swift-Az" and, together with Swift, "Purchaser"), MARK VII, INC., a
Missouri corporation formerly known as MNX INCORPORATED ("Mark VII"), MNX
CARRIERS, INC., a Delaware corporation and a wholly-owned subsidiary of Mark VII
("Carriers"), and MISSOURI-NEBRASKA EXPRESS, INC., an Iowa corporation and a
wholly-owned subsidiary of Carriers ("Mo-Neb"). Mark VII, Carriers and Mo-Neb
are sometimes collectively referred to herein as "Seller". Unless otherwise
provided herein, terms used herein shall have the meanings ascribed to them in
the Agreement.
W I T N E S S E T H:
WHEREAS, on June 17, 1994, Purchaser and Seller entered into the
Agreement providing for the sale of certain assets of Seller to Purchaser; and
WHEREAS, Seller and Purchaser desire to amend the Agreement as
provided for herein.
NOW, THEREFORE, in consideration of the foregoing recitals, the terms
set forth herein and other good and valuable consideration the receipt of which
is hereby acknowledged, the parties hereto agree to amend the Agreement as
follows:
SECTION 1. JUNE 30, 1994 BECOMES JULY 2, 1994. The Agreement is
hereby amended to delete the reference to the date "June 30" in Sections
6.3(b)(ii), 6.7(b) and 6.7(c) of the Agreement and to insert the date "July 2"
therein.
SECTION 2. JULY 1, 1994 BECOMES JULY 3, 1994. The Agreement is
hereby amended to delete the references to the date "July 1" in Sections 6.1,
6.2(d) and 6.2(g) of the Agreement and to insert the date "July 3" therein.
SECTION 3. SECTION 2.2(A) AMENDMENT. Section 2.2(a) shall be
deleted in its entirety and the following inserted in its place:
"SECTION 2.2 PURCHASE PRICE; ASSUMED LIABILITIES.
(a) Purchase Price. The cash portion of the Purchase Price, as
calculated pursuant to this Section 2.2(a), shall be payable at Closing by
wire transfer. The cash portion of the Purchase Price shall equal
$9,097,915, which is the sum of:
(i) $38,792,568 (representing the previously agreed
equipment value of $38,781,565, less one missing tractor valued at
$56,997, plus eight trailers valued at $68,000); plus
(ii) $1,847,459, which is the value of the Inventory,
Licenses and Prepaid Assets as of July 2, 1994 (subject to post-
closing adjustment of the parts inventory based on mutual agreement of
Seller and Purchaser); minus
(iii) $31,161,420 (representing the Assumed
Liabilities as determined between the parties in accordance with
Schedule 2.2(a)(iii) hereto, which is incorporated herein by reference
and made a part hereof); minus
(iv) $380,692 (representing the obligation for drivers'
vacation pay assumed by Purchaser under Section 6.3(b))."
SECTION 4. SECTION 2.2(B) AMENDMENT. Section 2.2(b) is amended to
insert "(i)" at the beginning thereof, and to insert, as Section 2.2(b)(ii) the
following:
"In the event that Safeco Credit Company remits to Purchaser any portion of
the prepayment penalty paid by Purchaser to Safeco Credit Company in
connection with the pay-off of the Safeco Credit Company leases, then all
such amounts, up to $213,153, shall be promptly paid by Purchaser to
Seller."
SECTION 5. DEPOSIT. Section 2.2(c) of the Agreement is hereby
deleted in its entirety and the following is hereby inserted in its place:
"(a) Deposit. (i) Purchaser shall deposit $3,000,000
in cash (the "Deposit") with an escrow agent pursuant to the terms of
the Escrow Agreement, such Deposit to be credited against the amount
payable in Section 2.2(a) above. The Deposit shall be refunded to
Purchaser only in the event this Agreement is terminated pursuant to
Section 9.1. Interest earned on the Deposit shall be paid to
Purchaser on the Closing Date or any refund of the Deposit to
Purchaser in accordance with the preceding sentence.
(ii) The parties acknowledge that the purpose of the
Deposit is to secure the performance of this Agreement by Purchaser.
In the event this Agreement is terminated as a result of a breach by
Purchaser, Seller shall be entitled to the Deposit as liquidated
damages and as Seller's sole remedy for the failure of Purchaser to
close; provided, that the foregoing shall in no manner whatsoever
limit or otherwise affect Seller's rights under Section 8.2 to
indemnification by Purchaser for liabilities caused Seller by
Purchaser other than liabilities which relate directly to Purchaser's
failure to close."
SECTION 6. SECTION 6.2 AMENDMENT. (a) Section 6.2 of the
Agreement is hereby amended as follows:
(i) Section 6.2(a) of the Agreement is hereby amended
to delete the words "the earliest of" in the first sentence thereof.
(ii) Section 6.2(a) of the Agreement is hereby amended
to add the following proviso at the end of the second sentence
thereof: "; provided, further, that risk management services shall
continue to be furnished to Mo-Neb during the Management Period on
substantially the same terms and conditions as they are currently
furnished to Mo-Neb".
(iii) Section 6.2(c) of the Agreement is hereby
amended to insert "(i)" before the first sentence thereof, and to add
the following at the end of such section:
"(ii) During the Management Period: (A) Purchaser
shall be entitled to use without charge the personal property owned by
Mo-Neb and located at the Facility; provided, however, that Purchaser
shall maintain such property in the same condition in which it was
received, normal wear and tear excepted; and (B) Purchaser shall be
entitled to use personal property not owned by Mo-Neb but located at
the Facility, including, without limitation, computers, telephones and
other office equipment, and Purchaser shall pay all lease payments due
during the Management Period with respect to such personal property.
At the end of the Management Period, regardless of whether the Closing
has theretofore occurred, unless Purchaser has (1) elected to purchase
from Mo-Neb the personal property owned by Mo-Neb and located at the
Facility on terms satisfactory to Mo-Neb and (2) assumed all
obligations under any lease or otherwise, and indemnified Seller
therefor, with respect to personal property not owned by Mo-Neb but
located at the Facility, Mo-Neb may remove any or all of such personal
property from portions of the Facility occupied by Purchaser and may
dispose of such property in its discretion."
(b) The first sentence of Section 26 of Exhibit B is hereby amended
to delete the word "not" between the words "shall" and "store".
SECTION 7. SECTION 6.2(D) SCHEDULE. Attached hereto as Schedule
6.2(d) is the calculation of the amounts due from Seller to Purchaser as of
Closing pursuant to Section 6.2(d) of the Agreement, as agreed to by Seller and
Purchaser. Schedule 6.2 is incorporated herein by reference and made a part
hereof for all purposes.
SECTION 8. SECTION 6.3 AMENDMENT. Section 6.3(b)(iii) of the
Agreement is hereby amended to insert ", other than those key non-driver
employees set forth on Schedule 6.3(b)(iv) hereof," after the first instance of
the word "Mo-Neb" in the first sentence thereof. Also, such section is hereby
amended by inserting the word "such" after the first instance of the word "any"
in the second sentence of such section. New Section 6.3(b)(iv) is hereby added
to the Agreement:
"(iv) Purchaser has identified those individuals
listed on Schedule 6.3(b)(iv) hereof as key non-driver employees.
Purchaser shall pay the bonus set forth next to each such individual's
name on Schedule 6.3(b)(iv) to each such individual who remains
continuously employed by Purchaser from the Closing through the second
anniversary date of the Closing. Seller shall reimburse Purchaser for
the payment of each bonus after such respective key non-driver
employee has been continuously employed by Purchaser through the
second anniversary date of the Closing and the Purchaser has notified
the Seller that such bonus has been paid. In no event shall Seller be
responsible for the reimbursement of an amount in excess of each
individual bonus set forth on Schedule 6.3(b)(iv)."
Section 6.3(c) is hereby amended to insert the phrase "employed by
Seller" in lieu of the phrase "in place of" and the phrase "for their
inconvenience during the transition of operations from Seller to Purchaser" is
hereby inserted at the end of such Section 6.3(c).
SECTION 9. SECTION 6.7 AMENDMENT. Section 6.7 of the Agreement is
hereby supplemented as follows:
(i) Section 6.7(d) is hereby added to the Agreement as
follows:
"(d) (i) Seller shall pay to Purchaser the overhaul
costs incurred by Purchaser for those tractors that are part of the
Equipment that have odometer readings in excess of 500,000 miles as of
the commencement of the Management Period, such amounts being agreed
to by Seller and Purchaser as $187,864 (subject to post-closing audit
by Seller in accordance with the methodology set forth in Exhibit
6.7(d) (I)), and (ii) Purchaser shall pay the overhaul costs on any
and all tractors that are part of the Equipment if such tractors
attain the 500,000 mile mark during the Management Period or
thereafter."
SECTION 10. PURCHASER ACKNOWLEDGEMENT. Pursuant to the Equipment
review contemplated by Section 6.7(b) and (c) of the Agreement:
(i) Purchaser and Seller acknowledge that $48,160 (subject
to post-closing audit by Seller) is due from Seller to Purchaser on
account of repairs to Equipment under the good repair and condition
warranty contained in Section 5.7(a) of the Agreement and the terms of
the leases to which the Equipment are subject relating to
roadworthiness, tire condition and body damage upon turn-in of such
Equipment so turned in; and
(ii) Purchaser and Seller acknowledge that no amounts
are due from Seller to Purchaser on account of excess mileage on
tractors as allowed by the respective leases relating thereto.
SECTION 11. SECTION 6.17 AMENDMENT. Section 6.17 of the Agreement
is supplemented to add the following sentence to the end of such section:
"Purchaser shall provide to Seller satisfactory evidence of the payment of such
federal highway use tax for each of the second, third and fourth fiscal quarters
of the fiscal year beginning July 1, 1994 promptly following the due date of
each such payment."
SECTION 12. COMPLETE AMENDMENT, ETC. This Amendment sets forth the
entire understanding of the parties hereto with respect to the specific matters
set forth herein. The Agreement and this Amendment shall not be further amended
or modified except by written instrument duly executed by each of the parties
hereto. Any and all previous understandings between or among the parties
regarding the subject hereof whether written or oral, are superseded by this
Amendment.
SECTION 13. GOVERNING LAW. This Amendment shall be governed by and
interpreted and enforced in accordance with the laws of the State of Missouri,
without giving effect to the choice of law provisions thereof.
SECTION 14. COUNTERPARTS. This Amendment may be executed in any
number of counterparts and any party hereto may execute any such counterpart,
each of which when executed and delivered shall be deemed to be an original and
all of which counterparts taken together shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment on the date first written.
SWIFT TRANSPORTATION CO., INC.,
a Nevada corporation
By: /s/ William F. Riley III
William F. Riley III
Executive Vice President
SWIFT TRANSPORTATION CO., INC.,
an Arizona corporation
By: /s/ William F. Riley III
William F. Riley III
Executive Vice President
MARK VII, INC.
By: /s/ J. Michael Head
J. Michael Head
Executive Vice President
MNX CARRIERS, INC.
By: /s/ Howard Petersen
Howard Petersen, President
MISSOURI-NEBRASKA EXPRESS, INC.
By: /s/ Howard Petersen
Howard Petersen, President