BILL OF SALE
This Bill of Sale ("Bill of Sale") is executed and delivered as of March
13, 1999 ("Effective Date"), by ACTION DELIVERY SERVICES, INC., a Texas
corporation ("ADS"), and ACTION WAREHOUSE SERVICES, INC., a Texas corporation
("AWS") (ADS and AWS are hereinafter individually and collectively called
"Seller") to KNIGHT ACQUISITION CORPORATION, an Arizona corporation ("Buyer").
RECITALS
A. Seller, Buyer, Bobby R. Ellis and Frances Ellis, husband and wife
("Ellis"), and Knight Transportation, Inc., an Arizona corporation ("Knight"),
are parties to that certain Asset Purchase Agreement dated March 13, 1999
("Purchase Agreement"). In accordance with the Purchase Agreement, Seller has
sold and assigned to Buyer, and Buyer has purchased and acquired from Seller,
the Business and Assets, as more particularly described therein.
B. The terms and provisions of the Purchase Agreement require, among other
things, that Seller execute this Bill of Sale, transferring and assigning to
Buyer all of Seller's rights in certain Assets (as such term is defined in the
Purchase Agreement) of Seller relating to the Business.
C. Capitalized terms which are used in this Assignment but which are not
defined specifically in this Assignment will be ascribed the meanings contained
in the Purchase Agreement.
AGREEMENT
In consideration of the purchase of the Business by Buyer and for other
good and valuable consideration, the receipt and sufficiency of which are
acknowledged, Seller makes the following conveyances to Buyer:
1. TRANSFER OF PERSONAL PROPERTY. Seller hereby grants, sells, transfers,
assigns, and conveys to Buyer, its successors and assigns, all the personal
property owned by Seller and situated upon and/or used in connection with the
ownership, operation or occupancy of the Business, which includes (without
limitation) the items listed on the attached Schedule "1" (the "Personal
Property").
2. PROPERTY NOT TRANSFERRED. Notwithstanding anything to the contrary
contained in this Bill of Sale, the term Personal Property shall not include any
hazardous or toxic wastes or substances which may be located upon, on or in the
real property occupied by the
Business as of the date of this Bill of Sale and any property explicitly
excluded under the Purchase Agreement. All such hazardous or toxic wastes or
substances are and shall remain the property of Seller and Seller shall be
responsible for the immediate removal and proper (lawful) disposal of all such
hazardous or toxic wastes or substances.
3. WARRANTY OF GOOD AND OPERATING CONDITION. Seller warrants to Buyer that
all of the Personal Property is in good condition, ordinary wear and tear
excepted, and, if applicable, is in good operating condition.
4. WARRANTY OF TITLE. Seller hereby represents and warrants to Buyer that:
(i) Seller is the sole owner of all of the Personal Property and has good and
marketable title to all of the Personal Property; (ii) Seller has all requisite
power and authority to sell, transfer and convey the Personal Property to Buyer
and Seller has obtained all consent(s) and approval(s) required to transfer the
Personal Property to Buyer; and (iii) the Personal Property is free and clear
from all pledges, liens, claims and encumbrances of any type or nature. Seller
agrees, at its sole cost and expense, to defend title to the Personal Property
against all claims or demands of any type or nature.
5. TRANSFER OF WARRANTIES, CLAIMS AND CAUSES OF ACTION.
(a) Seller hereby transfers and assigns to Buyer any and all warranty
and other rights, claims, and causes of action of Seller relating to the
Personal Property which may be enforceable against manufacturers, distributors,
suppliers, vendors, or services of the Personal Property (collectively, the
"Warranties").
(b) Seller represents and warrants to Buyer that Seller has delivered
to Buyer the originals, or, if the originals are not available, copies of all
written document(s) Seller (or Seller's agents or representatives) has/have
within its/their possession or control relating to the Warranties or the
Personal Property, including, without limitation, all manuals, warranty
documents, instructions and other matters.
(c) With respect to any of the Warranties which cannot be effectively
transferred to Buyer without the consent of third parties, Seller will endeavor
to obtain such consents promptly and, if unobtainable or if such Warranties are
enforceable only by Seller, to use Seller's best efforts to assure to Buyer the
benefits of the Warranties.
6. WARRANTY OF AUTHORITY. The person(s) executing this instrument on behalf
of Seller represent(s) and warrant(s) that (s)he is duly authorized and
empowered to do so and that all necessary signatures and approvals of persons
with an ownership interest in Seller have been obtained so as to make this
instrument legally enforceable and effective in accordance with its terms.
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7. BUYER'S RIGHTS. Buyer's Rights under this Bill of Sale are in addition
to and not in limitation of Buyer's rights under the Purchase Agreement.
8. ADDITIONAL ACTS. Seller agrees, at its sole cost and expense, to
perform, execute and/or deliver or to cause to be performed, executed and/or
delivered such additional documents and/or assurances as Buyer may reasonably
request to insure, secure or perfect Buyer's interest in any item transferred to
Buyer by this Bill of Sale or otherwise fully and effectively carry out the
intent and purpose of this Bill of Sale.
IN WITNESS WHEREOF, this instrument is executed and delivered as of the
13th day of March, 1999.
SELLER:
ACTION DELIVERY SERVICES, INC., a
Texas corporation
By: /s/ Bobby R. Ellis
--------------------------------
Bobby R. Ellis, President
ACTION WAREHOUSE SERVICE, INC., a
Texas Corporation
By: /s/ Bobby R. Ellis
--------------------------------
Bobby R. Ellis, President
BUYER:
KNIGHT ACQUISITION CORPORATION,
an Arizona corporation
By: /s/ Kevin P. Knight
--------------------------------
Kevin P. Knight, Chief Executive Officer
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SCHEDULE "1"
TO
BILL OF SALE
The Personal Property shall include all Assets, as such term is defined
in the Purchase Agreement, including, without limitation, all right, title and
interest in and to all assets of every nature and description of Seller, all
properties and rights of Seller used directly or indirectly in the conduct of,
or generated by or constituting, the Business, except as otherwise expressly set
forth in Section 2.3 of the Purchase Agreement, including, but not limited to,
the following assets:
(1) all equipment (including, without limitation, tractors, trailers
and computer equipment), inventory, investments, work in progress, machinery,
tools, goods, supplies, vehicles, furniture, fixtures and other tangible
personal property;
(2) the names "Action Delivery Service, Inc." and "Action Warehouse
Services, Inc." and related telephone numbers, including, but not limited to,
(800) 527-0032, together with Seller's right to use the names and goodwill, if
any, associated with the names;
(3) all information, files, records, correspondence, data, plans,
contracts and recorded knowledge, including customer and supplier lists relating
to the Assets and the Business;
(4) all investments in equity securities and bonds of independent
third parties;
(5) all cash on hand as of the Closing Date, except any cash
representing proceeds from overdrafts or proceeds to which any factor may be
entitled;
(6) all goodwill, if any, associated with the Assets and the Business;
(7) all prepaid expenses, unbilled costs and fees, and all warranty
reserves;
(8) all licenses, permits, approvals or authorizations;
(9) 4127.8190 shares of K-Mart Coroporation common stock; and
(10) the personal property described on the list attached hereto.
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