EXHIBIT 10.21
TRANSLATION FROM THE GERMAN LANGUAGE
ASSET PURCHASE AGREEMENT
(THE "AGREEMENT")
JANUARY 11, 2002
between
1. BAYERISCHE TRAILERZUG GESELLSCHAFT FUR BIMODALEN GUTERVERKEHR MBH,
Poccistrasse 7, D-80336 Munich (the "Purchaser" or "BTZ" ),
and
2. WABASH NATIONAL CORPORATION,
1000 Sagamore Parkway South, Lafayette, Indiana 47905, U.S.A. (the
"SELLER" or "WABASH").
The Purchaser and the Seller, as the case may be, each are referred to herein as
a "PARTY" and collectively as the "PARTIES".
TRANSLATION FROM THE GERMAN LANGUAGE
WHEREAS
(1) The Purchaser is a company with limited liability under German law with
its registered seat in Munich, Germany, and is registered in the
Commercial Register Munich under registration number HRB 97439.
(2) The Seller is a corporation under the laws of Delaware, with its
commercial seat in Lafayette, Indiana, U.S.A.
(3) ETZ Europaische Trailerzug Beteiligungsgesellschaft mbH ("ETZ" or the
"COMPANY") is a company with limited liability under German law with its
registered seat in Munich, Germany, registered under registration number
HRB 106942 in the Commercial Register Munich. As of this date Brennero
Trasporto Rotaio S.p.A., Bimodal and Wabash have concluded a Framework
Agreement (the "FRAMEWORK AGREEMENT").
(4) In execution of the respective terms and conditions of the Framework
Agreement, the Seller wishes to sell the Purchaser, and the Purchaser
wishes to purchase from the Seller the assets listed in Annex ./1 to the
Framework Agreement.
NOW, THEREFORE, in consideration of the mutual promises made herein and mutual
benefits to be derived from this Agreement, the Parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Except if expressly stated otherwise in this Agreement, the defined terms in
this Agreement shall have the same meaning as in the Framework Agreement.
The defined terms in this Agreement shall have the meaning as set out below:
AGREEMENT This asset purchase agreement.
FRAMEWORK AGREEMENT The framework agreement between the Parties as of
this date.
PURCHASE PRICE The aggregate purchase price for the Acquired Assets
pursuant to Article IV of this Agreement.
PURCHASER BTZ Bayerische Trailerzug Gesellschaft fur bimodalen
Guterverkehr mbH.
PARTIES Wabash and BTZ.
2
TRANSLATION FROM THE GERMAN LANGUAGE
ARTICLE II
PURCHASE
(1) The assets to be sold are existing trailers and bogies as listed in Annex
./1 to the Framework Agreement (the "ACQUIRED ASSETS") owned by the Seller
and currently operated by BTZ.
(2) The Seller hereby sells to the Purchaser, and the Purchaser purchases from
the Seller the Acquired Assets at the Purchase Price and under the
conditions provided in this Agreement.
(3) The Purchaser hereby undertakes to pay the Purchase Price set forth in
Article IV to the Seller pursuant to the terms and conditions provided in
this Agreement.
ARTICLE III
TRANSFER OF ACQUIRED ASSETS
(1) This Agreement shall be enter into force upon effectiveness of the
Framework Agreement. The Purchaser and the Seller agree that ownership in
the Acquired Assets shall pass from the Seller to the Purchaser upon
effectiveness of this Agreement and upon fulfilment of the financing
obligation pursuant to Article IV of the Framework Agreement.
(2) As of the date as indicated in Paragraph (1) of this Article III above,
the Seller shall transfer to the Purchaser the Acquired Assets including
the letters pursuant to Annex ./1 of the Framework Agreement. In the event
of the Seller not being in direct possession (unmittelbarer Besitz) of
the Acquired Assets, the Seller hereby assigns its claim for redelivery
(Herausgabeanspruch) against the respective possessor (Besitzer) to the
Purchaser. The Seller will use its best knowledge to make efforts to
support the bank financing provided for under the Framework Agreement by
entering into a so-called remarketing agreement in conformity with banking
and referring to the Acquired Assets, such remarketing agreement
corresponding to existing remarketing agreements entered into with KfW and
Deutsche Bank.
ARTICLE IV
PURCHASE PRICE
(1) The Purchase Price for the Acquired Assets sold pursuant to Article II
above shall be in the total amount of (euro) 1,-- (Euro one) plus, if
applicable, VAT (the "PURCHASE PRICE").
(2) The Purchase Price shall be due as of the date of this Agreement and shall
be paid by the Purchaser to the Seller in cash.
3
TRANSLATION FROM THE GERMAN LANGUAGE
ARTICLE V
LIMITATION OF WARRANTY/EXCLUSION OF FURTHER CLAIMS
Unless otherwise expressly provided in this Agreement or the Framework Agreement
the following shall apply:
(1) The Acquired Assets are sold "as is- where is" out of the property of the
Seller, unencumbered by third party rights. All necessary and/or required
technical examinations, in particular the main technical check ups and
examinations of the breaks (Haupt- und Bremsuntersuchung) have been
conducted in due manner and time. Considering the inspection performed by
the Purchaser and the continued use of the Acquired Assets by it, any
contractual liability or liability based on statue of the Seller in terms
of material defects (Sachmangel) is expressly excluded. The Seller shall,
however, be liable for defect of title (Rechtsmangelhaftung) according to
the relevant provisions of statutory law. Rescission from (Rucktritt) and
unwinding of (Wandlung) the Agreement is excluded, unless otherwise
provided in the Agreement.
(2) Notwithstanding Paragraph (1) of this Article V above, the provisions of
the Framework Agreement shall apply to the type and volume of liability
arising under this Agreement.
ARTICLE VI
CONFIDENTIALITY
(1) The Parties agree that the existence and the substance of this Agreement
including all Annexes hereto shall remain confidential and, subject to the
requirements of mandatory law, shall not be announced or otherwise
disclosed without the prior written consent of the other Party.
(2) All communications, in particular addressed to the media, to customers, to
suppliers or to distributors, shall be agreed upon in advance by the
Parties.
(3) This obligation of confidentiality shall not apply to information that is
generally available to the public, or is required to be disclosed by law,
court order or request by any governmental or regulatory authority.
ARTICLE VII
COSTS, STAMP DUTIES AND TAXES
(1) All costs resulting from negotiation and drafting of this Agreement,
including but not limited to fees charged by advisers in legal,
accountancy and financial matters, shall be borne by such Party where they
occurred and shall not be reimbursable by the other Party.
(2) The Purchaser and the Seller shall respectively bear 50% of any transfer
and sales taxes and fees, including but not limited to, notarial fees in
connection with this Agreement. The Purchaser undertakes to file the
transaction documents with the relevant authorities, to the extent
necessary, for the assessment of transfer taxes, stamp duties and other
public dues.
4
TRANSLATION FROM THE GERMAN LANGUAGE
ARTICLE VIII
GENERAL PROVISIONS
(1) This Agreement and the Framework Agreement including its Annexes contain
the entire agreement between the Parties relating to the transaction
contemplated by this Agreement. They supersede respectively replace any
previous agreements between the Parties relating to this transaction. Each
of the Parties confirms that by agreeing to enter into this Agreement it
does not rely on any representation, warranty or other assurance except as
expressly set out in this Agreement.
(2) The Article and Section headings contained in this Agreement are solely
for the purpose of reference, are not part of the agreement of the Parties
and shall not in any way affect the meaning or construction of this
Agreement.
(3) This Agreement shall not be amended or completed orally and shall not be
amended or discharged in whole or in part, otherwise than by an instrument
in writing signed by the Parties or their successors or assignees.
(4) Except as otherwise provided in this Agreement, any failure of any of the
Parties to comply with any obligation, covenant, agreement or condition of
this Agreement may be waived by the Party or Parties entitled to the
benefits of such obligation, covenant, agreement or condition only by an
instrument in writing signed by the Party granting such waiver. Such
waiver or failure to insist upon strict compliance with any such
obligation, covenant, agreement or condition shall not operate as a waiver
of any other obligation, covenant, agreement or condition and shall not be
deemed to represent any subsequent or other failure. Whenever this
Agreement requires or permits consent by or on behalf of any Party to this
Agreement, such consent shall be given in writing in a manner consistent
with the requirements for a waiver of compliance as set forth above.
(5) Should any provision of this Agreement become wholly or partly invalid or
unenforceable, this will not affect the validity or enforceability of the
remaining provisions hereof. In this event, the Parties shall start
negotiations without undue delay with a view to amend this Agreement so
that the invalid or unenforceable provision shall be substituted by a
valid or enforceable provision the essence and purpose of which comes as
close as possible to the invalid or unenforceable provision.
(6) The failure of any Party to enforce or exercise, at any time or for any
period of time, any term of, or any right or remedy arising pursuant to,
or under this Agreement, does not constitute and shall not be construed
as, a waiver of such term or right or remedy and shall in no way affect
the Parties' right to enforce or exercise such term or right or remedy at
a later time, provided that such right is not time barred or precluded.
Any waiver to this effect must be expressly in writing.
(7) Neither this Agreement nor any of the rights, benefits or obligations
hereunder shall be susceptible of assignment by any of the Parties hereto
without the prior written consent of the other Parties.
(8) This Agreement is executed in two counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the
same instrument. This Agreement has been produced in the German language;
any translations of this
5
TRANSLATION FROM THE GERMAN LANGUAGE
Agreement are for working purposes only and shall have no influence on the
construction of the Agreement.
(9) All notices under this Agreement shall be in writing and shall be sent to
the following addresses per registered or certified mail or by confirmed
facsimile transmission:
For the Seller:
WABASH National Corporation, Tel.:+765 771 5300
1000 Sagamore Parkway South, email: rich.dessimoz@wabashnational.com
Lafayette, Indiana 47905, U.S.A.
Attn.: Mr Rich Dessimoz, CEO
For the Purchaser:
Bayerische Trailerzug Gesellschaft
fur bimodalen Guterverkehr mbH,
Poccistrasse 7, D-80336 Munich
Attn.: Management Board
(10) All such notices shall be deemed received upon (i) actual receipt thereof
by the addressee, (ii) actual delivery thereof to the appropriate address
or (iii) in the case of a facsimile transmission, upon transmission
thereof by the sender and by return facsimile by the addressee confirming
that the number of pages constituting the notice have been received
without error. In the case of notices sent by facsimile transmission, the
sender shall contemporaneously send a copy of the notice by registered
mail to the addressee at the address provided for above. However, such
mailing shall in no way alter the time at which the facsimile notice is
deemed received.
ARTICLE IX
APPLICABLE LAW
(1) This Agreement shall be governed by and construed in accordance with the
laws of Germany, without giving effect to the principles of conflicts of
law thereof. The applicability of the provisions of the United Nations
Convention on Contracts for the International Sale of Goods expressly
excluded.
(2) The courts of Munich shall have exclusive jurisdiction to decide on all
litigations arising under and in connection with this Agreement including
all its Annexes.
[reminder of the following page intentionally left blank]
6
TRANSLATION FROM THE GERMAN LANGUAGE
Munich, 11 January, 2002
FOR THE SELLER
_____________________________ _______________________________
FOR THE PURCHASER
_____________________________ _______________________________
Agreeing to the contents of this Agreement:
____________________________________
Bimodal Verwaltungs Gesellschaft mbH
7