ASSIGNMENT AND ASSUMPTION OF LEASES, CONTRACTS, AND RIGHTS
This Assignment and Assumption of Leases, Contracts, and Rights
("Assignment") is executed and delivered as of March 13, 1999 ("Effective
Date"), by ACTION DELIVERY SERVICES, INC., a Texas corporation ("ADS"), and
ACTION WAREHOUSE SERVICE, 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 Francis Ellis, husband and wife and
Knight Transportation, Inc., an Arizona corporation, 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 Assignment, transferring and assigning to Buyer
all of Seller's rights in certain Leases, Contracts, and other property rights
and interests 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.
TRANSFER AND ASSIGNMENT
In consideration of Buyers promises and covenants under the Purchase
Agreement and the purchase of the Business, and for other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, Seller
makes the following assignments to Buyer:
1. Assignment of Contracts.
(a) Seller transfers and assigns to Buyer, and its successors and
assigns, all of the right, title, interest, powers, and privileges of
Seller under only the "Assigned Contracts" listed on Schedule "1" to this
Assignment. No other Contracts (as that term is used in the Purchase
Agreement) will be transferred or assigned to Buyer.
(b) Seller represents and warrants to Buyer that: (i) all right,
title, interest, powers, and privileges being assigned to and assumed by
Buyer and all rights and options of third parties relating to the Assigned
Contracts are accurately set forth in their entirety in the Assigned
Contracts attached as Schedule "1"; (ii) no contracts or agreements
relating to management, maintenance, ownership, or operation of the
Business, other than those listed on Schedule "1", have been entered by
Seller which will remain in effect or become effective after the Effective
Date of this Assignment; (iii) Seller has obtained all consents and
approvals necessary to assign and transfer the Assigned Contracts to Buyer;
and (iv) there is no existing or uncured default or breach under any of the
Assigned Contracts.
2. Assumption by Buyer. Buyer accepts the foregoing assignment and transfer
of the Assigned Contracts, and assumes the obligations of Seller thereunder in
accordance with their terms, but only to the extent such obligations are to be
performed after the Effective Date of this Assignment (regardless of when demand
for payment or performance is made).
3. Assignment of Miscellaneous Items. Seller transfers, assigns, and
conveys to Buyer, its successors and assigns, all licenses (to the extent
transferable), franchises, certificates, authorizations, approvals, certificates
of occupancy, building permits and other applicable permits and licenses issued
by any governmental authority relating to the ownership or operation of the
Business and the Assets, all goodwill, and other intangible personal property of
Seller relating to the Business, and all personal property owned by Seller with
respect to the Business that have not otherwise been conveyed by a concurrently
executed Bill of Sale from Seller to Buyer.
4. Assignment of Warranties, Claims and Causes of Action.
(a) Seller transfers and assigns to Buyer, and its successors and
assigns, all of Seller's right, title, and interest in all representations
or warranties (express or implied) and all other rights, causes of action,
or all claims of any kind (collectively, the "Rights") arising out of the
Assigned Contracts and all other matters herein assigned.
(b) Seller has delivered to Buyer the originals or, if the originals
are not available, copies of any written documents which Seller (or
Seller's agents or representatives) has/have within its/their possession or
control relating to the Rights.
(c) With respect to the Rights which cannot be effectively transferred
to Buyer without the consent of third parties, Seller and Buyer, after the
Effective Date, will endeavor to obtain such consents promptly, and, if
unattainable or if the Rights are enforce able only by Seller, Seller,
after the Effective Date, shall use its best efforts to provide Buyer the
benefits of the Rights.
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5. Miscellaneous.
(a) Seller agrees, at its sole cost and expense, to perform,
execute, and/or deliver (or to cause to be performed, executed, and/or
delivered) any additional documents and/or assurances as Buyer may
reasonably request to insure, secure, or perfect Buyer's interest in
any of the items assigned to Buyer by this Assignment or to otherwise
fully and effectively carry out the intent and purpose of this
Assignment or the Purchase Agreement.
(b) Seller warrants and represents to Buyer that the rights and
interests of Seller assigned under this Assignment are not subject to
any prior assignment, lien, pledge, or encumbrance.
(c) Seller and Buyer warrant and represent to each other that
they have the requisite power and authority to enter this Assignment
and have performed all acts and secured all approvals necessary to
make this Assignment effective and legally binding on such party in
accordance with its terms. Each person executing this instrument on
behalf of either party, as agent or otherwise, personally warrants
that he or she is duly authorized and empowered to do so and that all
signatures and approvals of persons with an ownership interest in such
party have been obtained so as to make this Assignment legally
enforceable and effective against such party.
(d) This Assignment is binding upon the successors and assigns of
Seller and will inure to the benefit of the successors and assigns of
Buyer, and all Rights and representations of Seller contained in this
Assignment shall survive the Effective Date of this Assignment, and
the delivery of this Assignment.
(e) This Assignment shall be governed by and interpreted under
the substantive laws of the State of Arizona, without regard to
conflicts of law principles.
6. Indemnity. Seller, on demand, agrees to indemnify, defend and hold
harmless Buyer for, from, and against any and all loss, cost, damage, claim,
liability, or expense (including court costs and attorney fees in a reasonable
amount) arising out of the acts or omissions of Seller or its agents prior to
the Effective Date with respect to the Assigned Contracts, and other property
being assigned by this Assignment. The indemnity described in this Assignment is
in addition to any obligations of the Seller to Buyer under the terms of the
Purchase Agreement. Buyer agrees to indemnify, defend and hold harmless Seller
for, from, and against any and all loss, cost, damage, claim, liability, or
expense (including court costs and attorney fees in a reasonable amount) arising
out of the acts or omissions of Buyer or its agents after the Effective Date
with respect to the Assigned Contracts, and other property being assigned by
this Assignment.
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This Assignment has been executed and delivered as of the Effective Date.
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
ASSIGNMENT AND ASSUMPTION OF LEASES, CONTRACTS, AND RIGHTS
All of the Seller's accounts receivable (a list of which is attached
hereto), notes receivable, inventory, equipment, machinery, leasehold
improvements, fixtures, tools, supplies, furniture, chattel paper and all other
intangible assets (collectively, the "Assets"), as well as all customer and
other business product, marketing , financial and technical lists, records and
information, trade secrets, patents, service marks, trade names, and tread marks
and all proprietary and other rights and general intangibles, including but not
limited to, the following:
(1) all rights to any Intellectual Property used or contemplated to be
used in the Business, including, without limitation, all rights to the
names, and all goodwill associated therewith, including all rights
under and to the names and any trade marks and service marks
associated with the Business or under which the Business has been
conducted;
(2) all rights and entitlements under any written or oral contract,
agreement, plans or specifications, instrument, registration, license,
franchise, certificate of occupancy, or other document, commitment,
arrangement, undertaking, practice, or authorization and any
intangible property rights associated with or constituting a part of
the Business (specifically excluding, however, any Employee Benefit
Plan);
(3) all customer contracts, including, without limitation, all rights and
entitlements under or with respect to the following contracts attached
hereto.
(4) the right to collect and retain all amounts under the Assigned
Contracts;
(5) all rights or choses-in-action arising out of occurrences before or
after the Closing, including, without limitation, all rights under
express or implied warranties in favor of Seller, if any, relating to
the Assets and the Business; and
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(6) The Assigned Contracts copies of which are attached hereto
Excluded Assets:
The foregoing notwithstanding, the purchased assets do not include the
Seller's corporate records including, but not limited to, stock books, stock
records, minutes of any directors or shareholders meetings, files maintained
with respect to directors or shareholders, investment banking files, Securities
and Exchange Commission files, information related to the offer of any
securities of the Seller, and property belonging to any customer of the Seller
or any Employee Benefit Plans or the assets of any Employee Benefit Plan.
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