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Exhibit 10.4
AMENDMENT NO. 1
TO
ASSET PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 (the "AMENDMENT") to the ASSET PURCHASE AGREEMENT
is made and entered into as of this 2nd day of January, 1998 by and between Jack
Gray Transport, Inc., an Indiana corporation ("JGT"), Gary I. Goldberg
("GOLDBERG") and Aasche Transportation Services, Inc., a Delaware corporation
("AASCHE").
RECITALS
A. JGT and Goldberg entered into that certain Asset Purchase Agreement
dated as of September 24, 1997 (the "AGREEMENT").
B. Goldberg assigned certain of his rights and interests in the
Agreement to Aasche pursuant to a certain Assignment of Asset Purchase Agreement
dated as of September 29, 1997 which Assignment was consented to by JGT by a
consent dated as of October 15, 1997.
C. In view of the complicated nature of the financing, additional time
is required to prepare and negotiate the lending documents.
D. The parties hereto desire to extend the time for Closing the
transaction in the manner set forth in this Amendment.
TERMS
NOW, THEREFORE, in consideration of the foregoing Recitals and the
mutual promises contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which hereby are acknowledged, JGT, Goldberg and
Aasche agree as follows:
1. All defined terms shall have the meaning ascribed to them in the
Agreement.
2. Aasche agrees to pay JGT $200,000 as consideration for the
agreements contained in this Amendment, which amount shall be treated as
additional Purchase Price. In the event such payment is not received by JGT by
4:00 p.m., Chicago time, on January 9, 1998, this Amendment shall be null and
void. Said amount shall be paid by check.
3. In Section 7.2, clause (A) shall be stricken in its entirety.
4. In Section 8.1, reference to the date "January 2, 1998" shall be
changed to "January 30, 1998." The last sentence in Section 8.1 shall be
stricken in its entirety.
5. In Section 11.1(c), reference to the date "January 2, 1998" shall be
changed to "January 30, 1998." Section 11.1(d) shall be stricken in its
entirety.
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Exhibit 10.4
6. Nothwithstanding anything to the contrary contained in the Agreement
or in this Amendment, JGT, Aasche and Goldberg acknowledge and agree that during
the period between January 2, 1998 and the Closing Date: (i) JGT shall not be
required to pay any salary or other compensation to Goldberg who shall continue
as Executive Vice President of JGT; (ii) JGT shall, and shall cause John S. Gray
as President of JGT, to manage and conduct the Business in substantially the
same manner as has been conducted prior to the date of the Agreement; (iii) JGT
shall not purchase or lease any tractor, trailer or other equipment between the
date of this Amendment and the Closing Date unless such purchase or lease has
been approved by the President of JGT; and (iv) JGT shall not enter into any
contract (written or oral) for the provision of trucking services, unless such
contract has been approved by the President of JGT.
7. Except as expressly provided herein, nothing in this Amendment shall
be deemed to waive or modify any of the provisions of the Agreement. In the
event of any conflict between the Agreement, this Amendment or any other
amendment or addendum thereof, the document later in time shall prevail.
8. The Amendment may be executed simulaneously in one or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
JACK GRAY TRANSPORT, INC.
By: /s/ John S. Gray
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John S. Gray, President
AASCHE TRANSPORTATION SERVICES, INC.
By: /s/ Leon M. Monachos
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Leon M. Monachos, Chief
Financial Officer
/s/ Gary I. Goldberg
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Gary I. Goldberg