Exhibit 10.26
ASSET PURCHASE AGREEMENT
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This Agreement made and entered into as of this 1st day of April, 1997,
by and between CSI/Crown Inc., a Georgia Corporation, a wholly owned subsidiary
of U.S. Xpress Enterprises, Inc., which has its principal place of business in
Chattanooga, Tennessee ("Buyer"), and Rosedale Transport, Inc., a Georgia
Corporation, having its principal place of business in Dalton, Georgia, and
Rosedale Transport Limited, a Canadian Corporation, having its principal place
of business in Mississauga, Ontario, Canada (hereinafter collectively
"Sellers").
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. (a) Sellers agree to sell, transfer and convey to Buyer, and Buyer
agrees to accept and purchase from Sellers, that certain equipment
consisting of tractor, trailer and lift trucks 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) Sellers agree to assign and transfer and Buyer agrees to assume
those certain Terminal Leases specified in the attached Schedule 2 on the
terms therein specified and Sellers represent and warrant to Buyer that
such leases are freely assignable by Sellers to Buyer upon such terms.
Sellers agree to obtain the written consent and approval of the lessors for
such assignment and assumption.
(c) Sellers agree to assign, transfer and convey and Buyer agrees
to assume those certain Fork Lift Leases specified in Schedule 2 and those
certain office equipment leases specified in Schedule 3, on the terms
therein specified and Sellers represent and warrant to Buyer that such
leases are freely assignable by Sellers to Buyer upon such terms. Sellers
agree to obtain the written consent and approval of the lessors for such
assignment and assumption.
(d) Sellers agree to sell, transfer and convey to Buyer and Buyer
hereby accepts all of Sellers' furniture, fixtures, equipment and other
tangible personal property located at the terminals specified in
Schedule 2.
(e) Sellers agree to assign, transfer and convey to Buyer and
Buyer agrees to assume those certain tariffs, rates and contracts of
Sellers specified in Schedule 4 attached hereto.
(f) Sellers agree to sell, transfer and convey to Buyer and Buyer
hereby accepts Sellers' list of customers and books and records specified
in Schedule 4 attached hereto.
(g) Buyer agrees to reimburse Sellers for all terminal lease and
utility deposits as specified in Schedule 5 within two weeks of closing.
The foregoing are hereinafter collectively referred to as (the
"Purchased Assets").
2. The total purchase price to be paid by Buyer to Sellers for the
Purchased Assets shall be as follows:
(a) $3,464,000.00 in immediately available United States funds
at closing.
3. Sellers hereby represent and warrant to Buyer that Sellers have
and will have at closing (unless otherwise specified herein or in an attached
schedule) 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,
Sellers represent and warrant to Buyer that the equipment is and will be at
closing in good working order and road worthy condition. Also, with respect to
all contracts, leases or other agreements to be assigned to Buyer pursuant
hereto, Sellers represent and warrant that such contracts, leases and agreements
are and will be at closing in full force and effect and that neither Sellers nor
any other party thereto are or will be in default thereunder.
4. As a material inducement to Buyer to enter into this Agreement,
Sellers hereby agree that for a period of five years from April 1, 1997, Sellers
will tender to Buyer all of Sellers' business of consolidation of floor covering
and related articles in the continental United States at the following rates:
In the counties of Whitfield, Catoosa, Murray, Walker, Gordon, Floyd
and Chattooga, in the State of Georgia the initial rate shall be seven cents
(7c) per square yard for consolidation of less than truckload or one hundred
($100.00) dollars per trailer per mill for headloads from April 1, 1997 through
July 30, 1997, after which time the rate shall be eight cents (8c) per square
yard for consolidation
of less than truckload or one hundred ($100.00) dollars per trailer per mill for
headloads.
For freight originating from all other locations in the continental
United States the rate shall be as negotiated in good faith by Sellers and
CSI/Crown Inc.
Sellers shall meet with Buyer in March of 1998 and annually thereafter
to negotiate rates for the next succeeding year.
5. Sellers agrees to assign to Buyer and Buyer agrees to assume the
balance of William Love's Employment Contract with Sellers in the amount of
$50,000 annually ending June 30, 1999.
6. As a condition to the closing of the transactions specified
herein and as a requirement and condition of this Agreement, Barry Smith, Rolly
Uloth, Arvis Harris, Henry Heptinstahl, and Sellers, shall execute a Non-
Competition Agreement in the form attached hereto as Exhibit A.
7. As a condition to the closing of the transactions specified
herein and as a requirement and condition of this Agreement, CSI/Crown, Inc. and
Rosedale Transport Limited will enter into and execute a Non-competition
Agreement in the form attached hereto as Exhibit B.
8. As a condition to the closing of the transactions specified
herein and as a requirement and condition of this Agreement, Buyer and Sellers
shall enter into and execute a Transportation Agreement in the form attached
hereto as Exhibit C.
9. Sellers 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 Sellers contained in this
Agreement or in any document delivered to Buyer by Sellers in connection with
this transaction; (ii) a failure by Sellers to perform or comply with any
covenant, agreement or obligation required by this Agreement to be performed or
complied with by Sellers; and (iii) any liability that may be asserted against
Buyer as a matter of law as a result of its being a transferee of Sellers
pursuant to this Agreement which has not been expressly assumed herein by Buyer.
The obligations of Sellers under this Paragraph 6 shall survive the closing of
the transactions specified herein.
10. 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.
11. 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 Sellers hereby irrevocably
accept, generally and unconditionally, the jurisdiction of such Courts.
12. All representations 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.
13. The closing date of this Agreement shall be on a business day
mutually agreeable to the parties but no later than April 1, 1997.
14. 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 the 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.
Sellers: Rosedale Transport, Inc. Rosedale Transport Limited
By: /s/ Arvis Harris By: /s/ Rolly Uloth
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President President
Buyer: CSI/Crown, Inc.
By: /s/ L.D. Miller, III
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Chairman
Agreement Between CSI/Crown, Inc. and Rosedale Transport, Inc.
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and Rosedale Transport Limited Re: Purchase of Equipment
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Notwithstanding the provisions of Section 2 of that Certain Purchase
Agreement by and between Rosedale Transport, Inc. and Rosedale Transport Limited
("Sellers") and CSI/Crown, Inc. ("Buyer"), Sellers and Buyer agree that of the
$3,464,000 to be paid by Buyer to Sellers, $1,164,000 of such sum shall be paid
by Buyer to Sellers at such time as titles to the equipment specified in
Schedule 1 to the Asset Purchase Agreement have been transferred and delivered
by Sellers to Buyer.
In witness whereof the parties have executed this Agreement effective as of
the 1st day of April, 1997.
CSI/Crown, Inc.
By: /s/ L.D. Miller, III
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Chairman
Rosedale Transport, Inc.
By: /s/ Arvis Harris
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President
Rosedale Transport Limited
By: /s/ Rolly Uloth
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President