Exhibit 10.25
ASSET PURCHASE AGREEMENT
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This Agreement made and entered into as of this 18/th/ day of June, 1996,
by and between U.S. Xpress Enterprises, Inc., a Nevada Corporation, having its
principal place of business in Chattanooga, Tennessee ("Buyer") and Michael Lima
Transportation Inc., a California Corporation, having its principal place of
business in City of Industry, California ("Seller").
W I T N E S S E T H:
In consideration of the promises and agreements contained herein, the
parties hereto agree as follows:
1. On the terms and conditions contained herein:
(a) Seller agrees to sell, transfer and convey to Buyer, and Buyer
agrees to accept and purchase from Seller, that certain equipment listed on
the attached Schedule 1 free and clear of all claims, mortgages, liens or
encumbrances of any kind or any conditional sales agreement or title
retention agreement.
(b) Seller agrees to assign and transfer and Buyer agrees to assume
that certain Transportation Agreement dated November 19, 1995, by and
between Seller and Federal Express Corporation including all rates and
traffic lanes specified in said Agreement with Federal Express Corporation.
Seller agrees to obtain the written consent and approval of Federal Express
Corporation for such assignment and assumption.
(C) Seller agrees to assign, transfer and convey to Buyer the exclusive
ownership of and all right, title and interest in and to the name "Michael
Lima Transportation"
for the time period from the date of this Agreement through July 1, 2000,
and Seller specifically agrees not to use in any manner the name "Michael
Lima Transportation" or any similar name during such time period.
The foregoing are hereinafter collectively referred to as (the "Purchased
Assets").
2. The total purchase price to be paid by Buyer to Seller for the
Purchased Assets shall be as follows:
(a) $2,256,615.80 at closing;
(b) $792,000, together with interest at 9% per annum from the date of
closing, on or before July 1, 1998. The right to prepayment without penalty
is reserved by Buyer.
(C) In the event that Buyer is able to renew with Federal Express
Corporation the traffic lanes and other substantive provisions specified
in the Transportation Agreement dated November 19, 1995, by and between
Seller and Federal Express Corporation which is to be assigned and
transferred by Seller to Buyer hereunder, for an additional 3 year term
after November 19, 1998, then Buyer will pay to Seller as additional
consideration the sum of $1,000,000 on January 1, 1999. Provided, however,
that in the event the traffic lanes and other substantive provisions
specified in the Transportation Agreement with Federal Express Corporation
are not renewed with Buyer by Federal Express Corporation because of the
failure of Buyer to comply with
Federal Express Corporation service requirements, Buyer shall,
nevertheless, be obligated to pay the additional consideration of
$1,000,000 on January 1, 1999.
3. Seller hereby represents and warrants to Buyer that Seller has and will
have at closing good and marketable title with respect to the Purchased Assets
free and clear of all claims, mortgages, liens or encumbrances of any kind, or
any conditional sales agreement or title retention agreement, and that the
Purchased Assets are and will be at closing in good and merchantable condition.
Additionally, with respect to the equipment specified in Section 1 (a) above,
Seller represents and warrants to Buyer that the equipment is and will be at
closing in good working order and road worthy condition. Also, with respect to
the Transportation Agreement specified in Section 1 (b) above, Seller represents
and warrants that the Transportation Agreement is and will be at closing in full
force and effect and that neither Seller nor Federal Express are or will be in
default thereunder.
4. As a condition to the closing of the transaction specified herein and
as a requirement and condition of this Agreement, Michael Lima, Loretta Mae
Lima, Gary Lima, Sophia Lima, Cherlyn Converse and Dan Converse, shall execute a
Non-Competition Agreement in the form attached hereto as Exhibit A.
5. As a condition to the closing of the transaction specified herein and
as a requirement and condition of this Agreement, Charles Lawlor, shall
execute an Employment Agreement with Buyer in the form attached hereto
as Exhibit B.
6. Seller shall indemnify, defend and hold Buyer forever harmless from and
against, and reimburse and promptly pay to Buyer the full amount of any and all
loss, damage, liability, obligation or expense (including reasonable expenses
and fees of counsel) incurred by Buyer directly or indirectly as a result of:
(I) a breach of any representation or warranty or inaccuracy of any
representation of Seller contained in this Agreement or in any document
delivered to Buyer by Seller in connection with this transaction; (ii) a failure
by Seller to perform or comply with any covenant, agreement or obligation
required by this Agreement to be performed or complied with by Seller; and (iii)
any liability that may be asserted against Buyer as a matter of law as a result
of its being a transferee of Seller pursuant to this Agreement.
7. This document and the documents referenced herein constitute the entire
agreement of the parties and supersede any and all other agreements, oral or
written, with respect to the subject matter contained herein.
8. This Agreement shall be interpreted and construed in accordance with
the substantive law of the State of Tennessee excluding its principles of
conflicts of laws. The parties hereby agree that any action or proceeding with
respect to this Agreement may be brought in the Courts of the State of Tennessee
in Hamilton County, Tennessee, and in the Courts of the United States for the
district encompassing Hamilton County, Tennessee, and Seller hereby irrevocably
accepts, generally and unconditionally, the jurisdiction of such Courts.
9. All representatives and warranties set forth herein shall survive the
execution hereof and the closing and completion of the transactions herein
described. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
10. The closing date of this Agreement shall be on a business day mutually
agreeable to the parties but no later than July 1, 1996.
11. Each of the parties hereto agrees to use its best efforts to take, or
cause to be taken, all action and to do or cause to be done, all things
necessary, proper or advisable to consummate or make effective the transactions
contemplated by this Agreement. In case at any time after the execution of this
Agreement any further action is necessary or desirable to carry out the purposes
of this Agreement, the parties shall take all such necessary action without
further consideration.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the day and year first above written.
Seller: Michael Lima Transportation, Inc.
By: /s/ Michael Lima
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Buyer: U.S. Xpress Enterprises, Inc.
By: /s/ Max L. Fuller
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President