UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): November 9, 2001
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MATLACK SYSTEMS, INC.
(Debtor-In-Possession as of March 29, 2001)
(Exact name of registrant as specified in its charter)
Delaware 1-10105 51-0310173
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(State or Other Jurisdiction of (Commission (I.R.S. Employer
Incorporation or Organization) File Number) Identification Number)
One Rollins Plaza, Wilmington, Delaware 19803
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (302) 426-2700
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N/A
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(Former Name or Former Address, if Changed Since Last Report)
Item 5. Other Events.
On November 9, 2001, Matlack Systems, Inc., a Delaware corporation (the
"Company"), through its wholly owned direct and indirect subsidiaries Matlack
(DE), Inc., Matlack, Inc., Transporters Adjusters, Inc., Matlack Leasing
Corporation, Bayonne Terminals, Inc., Distribution Center of Bayonne, Inc., Bulk
Terminals, Inc., Matlack International, Inc. and Matlack Properties, Inc.,
(collectively, "Matlack") completed the sale of certain assets, including
rolling stock and personal property, to Southern Tank Leasing, Inc., an Alabama
close corporation ("Southern Tank"). The Company and all of its direct and
indirect wholly owned subsidiaries are the subjects of a voluntary petition
seeking protection under Chapter 11 of the United States Bankruptcy Code in the
United States Bankruptcy Court for the District of Delaware (the "Bankruptcy
Court"), which are consolidated for the purpose of joint administration as Case
No. 01-1114 (MFW) (the "Bankruptcy Proceedings").
The assets sold to Southern Tank consisted of approximately 1,179 truck
tractor and truck trailer units and related personal property (the "Assets").
The Assets were sold pursuant to an Asset Purchase Agreement dated November 9,
2001 between Matlack and Southern Tank (the "Agreement"). A copy of the
Agreement is attached to this Current Report on Form 8-K as Exhibit 2(c), and
the Bill of Sale with respect to the assets is attached hereto as Exhibit 2(d).
The sale of the Assets was approved by the Bankruptcy Court, as required by the
U.S. Bankruptcy Code, pursuant to an order approving the sale of the Assets to
Southern Tank free and clear of any liens, claims and encumbrances, and
determining that the sale was exempt from any stamp, transfer, recording or
similar tax.
The gross amount of consideration received by the Company was $6,200,000,
less certain adjustments with respect to the Assets. The majority of the net
proceeds has been paid by the Company to First Union National Bank and to
Ark-CLO 20000-1 Ltd., the Company's principal creditors, to satisfy their
respective liens on the Assets. The remainder of the net proceeds has been paid
to the Company. After funding the costs associated with the ongoing liquidation
of its business, including the payment of employee salaries and related
expenses, the Company expects to distribute these proceeds to its creditors upon
the liquidation of the Company. The Company does not anticipate that the
aggregate net proceeds from the sales of these assets will be sufficient to
permit any distribution to stockholders, nor does the Company anticipate that
the aggregate net proceeds from the sales of its total assets, whether
previously announced or subsequently to be concluded, will be sufficient to
permit any distribution to stockholders.
Item 7. Financial Statements, Pro Forma Financial Information, and Exhibits.
(c) Exhibits:
2(c) Asset Purchase Agreement dated as of November 9, 2001 between
Southern Tank Leasing, Inc. and Matlack (DE), Inc., Matlack,
Inc., Transporters Adjusters, Inc., Matlack Leasing Corporation,
Bayonne Terminals, Inc., Distribution Center of Bayonne, Inc.,
Bulk Terminals, Inc., Matlack International, Inc. and Matlack
Properties, Inc.
2(d) Bill of Sale dated November 9, 2001 from Matlack (DE), Inc.,
Matlack, Inc., Transporters Adjusters, Inc., Matlack Leasing
Corporation, Bayonne Terminals, Inc., Distribution Center of
Bayonne, Inc., Bulk Terminals, Inc., Matlack International, Inc.
and Matlack Properties, Inc. to Southern Tank Leasing, Inc.*
* The Registrant agrees by this filing to supplementally
furnish a copy of the Exhibits and Schedules to these
agreements to the Commission upon request.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
MATLACK SYSTEMS, INC.
Dated: December 11, 2001 By:
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Patrick J. Bagley
Vice President-Finance & Treasurer
EXHIBIT INDEX
Exhibit No. Description
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2(c) Asset Purchase Agreement dated as of November 9, 2001 between Southern
Tank Leasing, Inc. and Matlack (DE), Inc., Matlack, Inc., Transporters
Adjusters, Inc., Matlack Leasing Corporation, Bayonne Terminals, Inc.,
Distribution Center of Bayonne, Inc., Bulk Terminals, Inc., Matlack
International, Inc. and Matlack Properties, Inc.*
2(d) Bill of Sale dated November 9, 2001 from Matlack (DE), Inc., Matlack,
Inc., Transporters Adjusters, Inc., Matlack Leasing Corporation,
Bayonne Terminals, Inc., Distribution Center of Bayonne, Inc., Bulk
Terminals, Inc., Matlack International, Inc. and Matlack Properties,
Inc. to Southern Tank Leasing, Inc.*
* The Registrant agrees by this filing to supplementally furnish a
copy of the Exhibits and Schedules to these agreements to the
Commission upon request.
Exhibit 2(c)
ASSET PURCHASE AGREEMENT
BETWEEN
SOUTHERN TANK LEASING, INC.
THE "PURCHASER"
and
MATLACK (DE), INC.;
MATLACK, INC.;
TRANSPORTERS ADJUSTERS, INC.;
MATLACK LEASING CORPORATION;
BAYONNE TERMINALS, INC.;
DISTRIBUTION CENTER OF BAYONNE, INC.;
BULK TERMINALS, INC.;
MATLACK INTERNATIONAL, INC.;
and
MATLACK PROPERTIES, INC.
COLLECTIVELY, THE "SELLER"
TABLE OF CONTENTS
1. DEFINITIONS AND RULES OF CONSTRUCTION.................................1
1.1. DEFINITIONS...........................................................1
1.2. RULES OF CONSTRUCTION.................................................2
2. PURCHASE AND SALE.....................................................3
2.1. PURCHASE AND SALE OF ASSETS...........................................3
2.2. PAYMENT OF PURCHASE PRICE.............................................4
2.3. TRANSFER TAX ESCROW...................................................4
2.4. OBLIGATIONS IN RESPECT OF REQUIRED CONSENTS...........................4
3. REPRESENTATIONS AND WARRANTIES OF SELLER..............................5
3.1. AUTHORITY.............................................................5
3.2. TRANSFER OF PROPERTY..................................................5
3.3. FILING OF CHAPTER 11 PLAN.............................................5
3.4. EXCLUSIVITY OF REPRESENTATIONS........................................5
3.5. DISCLAIMER............................................................5
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER...........................6
4.1. ORGANIZATION..........................................................6
4.2. AUTHORITY.............................................................6
4.3. CONSENTS..............................................................6
4.4. BROKERS...............................................................6
5. CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER......................7
5.1. COMPLIANCE WITH COVENANTS.............................................7
5.2. APPROVALS.............................................................7
5.3. LITIGATION............................................................7
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER.........................7
6.1. REPRESENTATIONS AND WARRANTIES TRUE AS OF CLOSING DATE................7
6.2. BANKRUPTCY CONDITION..................................................7
6.3. PAYMENT...............................................................8
6.4. LITIGATION............................................................8
6.5. ADDITIONAL MATTERS....................................................8
7. CLOSING...............................................................8
7.1. CLOSING...............................................................8
7.2. DELIVERIES BY THE SELLER..............................................8
7.3. CONDITIONS CONSTITUTING DELIVERY BY SELLER............................9
7.4. DELIVERIES BY THE PURCHASER...........................................9
7.5. WAIVERS BY PURCHASER..................................................9
8. POST-CLOSING OBLIGATIONS.............................................10
8.1. CERTAIN CONSENTS.....................................................10
8.2. CLEANING OF CERTAIN ROLLING STOCK BY SELLER..........................11
8.3 ACCEPTANCE OF UNITS AND PAYMENT OF RENT EXPENSES BY PURCHASER........11
8.4. ASSIGNMENT OF CONTRACTS BY SELLER....................................12
8.5. CONSENTS AND APPROVALS...............................................12
8.1. FURTHER ASSURANCES...................................................13
9. MISCELLANEOUS........................................................13
9.1. EXPENSES.............................................................13
9.2. LIQUIDATED DAMAGES...................................................13
9.3. AMENDMENT............................................................13
9.4. NOTICES..............................................................13
9.5. WAIVERS..............................................................14
9.6. COUNTERPARTS AND EXECUTION...........................................14
9.7. HEADINGS.............................................................14
9.8. APPLICABLE LAW AND JURISDICTION......................................14
9.9. BINDING NATURE; ASSIGNMENT...........................................15
9.10. NO THIRD PARTY BENEFICIARIES.........................................15
9.11. TAX MATTERS..........................................................15
9.12. TERMINATION OF REPRESENTATIONS, WARRANTIES AND COVENANTS.............15
9.13. CONSTRUCTION.........................................................15
9.14. PUBLIC ANNOUNCEMENTS.................................................16
9.15. ENTIRE UNDERSTANDING.................................................16
Schedules
Schedule A - Rolling Stock
Schedule B - Personalty
Schedule C - Titled Rolling Units
Schedule D - Untitled Units
Schedule E - Certificated Trailers
Schedule F - Uncertificated Trailers
Schedule G - First Union National Bank Liened Units
Schedule H - Ark-CLO 2000-1, Ltd. Liened Units
Schedule I - Tires
Schedule J - Non-Spec Trailers
Schedule K - Units to be Cleaned
Schedule L - Impaired Units
Schedule M - Post-Closing Acceptance Schedule
Exhibits
Exhibit 1 - Bill of Sale
Exhibit 2 - First Union Release Letter
Exhibit 3 - Ark-CLO Release Letter
Exhibit 4 - Sale Order
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is dated as of November 9,
2001, by and among SOUTHERN TANK LEASING, INC. (the "Purchaser"), and MATLACK
(DE), INC., MATLACK, INC., TRANSPORTERS ADJUSTERS, INC., MATLACK LEASING
CORPORATION, BAYONNE TERMINALS, INC., DISTRIBUTION CENTER OF BAYONNE, INC., BULK
TERMINALS, INC., MATLACK INTERNATIONAL, INC., AND MATLACK PROPERTIES, INC. (each
a "Debtor Entity" and collectively, the "Debtor Entities" or "Seller"), a debtor
and debtor in possession under Chapter 11 Case No. 01-01114 (MWF) pending in the
Bankruptcy Court for the District of Delaware. In consideration of the mutual
covenants, agreements and warranties herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS AND RULES OF CONSTRUCTION.
1.1. DEFINITIONS. Unless otherwise defined herein, terms used herein shall
have the meanings set forth below:
"Bankruptcy Code" means title 11 of the United States Code.
"Bankruptcy Court" means the United States Bankruptcy Court for the
District of Delaware, having jurisdiction over the Seller and its assets.
"Chapter 11 Case" means the pending case commenced by the Seller on March
29, 2001 under chapter 11 of the Bankruptcy Code in the Bankruptcy Court under
docket no. 01-01114 (MWF).
"Chapter 11 Plan" means the joint plan of liquidation of the bankruptcy
estate of the Debtor Entities pursuant to Chapter 11 of the Bankruptcy Code.
"Closing" means the consummation of the transactions contemplated herein in
accordance with Article 9 hereof.
"Contract" means any agreement, contract, commitment, or other binding
arrangement or understanding primarily related to any Acquired Assets, whether
written or oral, to which the Seller is a party.
"Exhibits" means the exhibits to this Agreement.
"Order" means any decree, order, injunction, rule, judgment, consent of or
by any court or governmental authority.
"Person" means any corporation, partnership, joint venture, limited
liability company, organization, entity, authority or natural person.
"Regulation" means any law, statute, regulation, ruling, rule or order of,
administered or enforced by or on behalf of, any court or governmental
authority.
"Sale" means the consummation of the transactions contemplated under this
Agreement as approved by the Sale Order.
"Sale Order" means the order of the Bankruptcy Court, entered on November
6, 2001, which Order is in form and substance reasonably satisfactory to the
Purchaser and the Seller.
"Seller's Requests for Replacement" means Seller's request(s) to the
appropriate government agency(ies) for replacement certificates of title or
other evidence of ownership with respect to any Unit.
"Schedules" means the schedules to this Agreement.
"Taxes" means all taxes, charges, fees, duties, levies or other
assessments, including, without limitation, income, gross receipts, net
proceeds, ad valorem, real and personal property (tangible and intangible),
sales, use, franchise, excise, value added, payroll, unemployment, stamp,
leasing, lease, user, transfer, occupational, employees' income withholding and
Social Security taxes imposed on the Sale by the United States or any other
country or by any state, municipality, subdivision or instrumentality of the
United States or of any other country or by any other tax authority, including
all applicable penalties and interest.
"Third Party" means any Person other than the Seller, the Purchaser or any
of their respective Affiliates.
"Unit" means any of the tractors, trailers or equipment listed on Schedule
A and Schedule B hereto.
1.2 RULES OF CONSTRUCTION.
(a) Unless otherwise specified therein, all terms defined in this
Agreement have the meanings as so defined herein when used in any
other certificate, report or document made or delivered pursuant
hereto.
(b) Each term defined in the singular form in Section 1.1 or
elsewhere in this Agreement shall mean the plural thereof when
the plural form of such term is used in this Agreement or any
other certificate, report or document made or delivered pursuant
hereto, and each term defined in the plural form in Section 1.1
shall mean the singular thereof when the singular form of such
term is used herein or therein.
(c) The words "hereof," "herein," "hereunder" and similar terms when
used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement, and
article, section, subsection, schedule and exhibit references
herein are references to articles, sections, subsections,
schedules and exhibits to this Agreement unless otherwise
specified.
(d) The word "including" (and with correlative meaning "include")
means including without limiting the generality of any
description preceding such term, the phrase "may not" is
prohibitive and not permissive, and the word "or" is not
exclusive.
(e) As used herein, the term "Seller" shall mean each of the Debtor
Entities only with respect to itself and to the fullest extent
that any or all of the Debtor Entities (as the case may be) can
perform the obligations or make the representations contained
herein. Except as expressly stated otherwise herein, any
reference to "Seller" herein shall not, and shall not be deemed
to:
(i) create any joint or several liability between and among the
Debtor Entities;
(ii) create any indemnity or surety between and among the Debtor
Entities with respect to any matters hereunder; nor
(iii)require any of the Debtor Entities to perform any obligation
of the any other, or to cause one of the Debtor Entities to
perform such other party's respective obligations hereunder.
(f) As used herein, the term "Acquired Assets" when used in reference
to or in connection with any representation or action by the
Seller, shall mean only those Acquired Assets which are owned by,
or subject to the direct interest of the respective Seller. No
references herein to Acquired Assets and to Seller shall be
deemed to refer to assets of each of the Debtor Entities which
are not owned or held by each of the Debtor Entities in their
respective individual capacity.
2. PURCHASE AND SALE.
2.1 PURCHASE AND SALE OF ASSETS. Subject to the terms and conditions set
forth in this Agreement, and subject and pursuant to the Sale Order,
at the Closing the Seller shall sell, assign, transfer and deliver to
the Purchaser, and the Purchaser shall purchase, acquire and take
assignment and delivery of, for the consideration specified in Section
2.2 hereof, all of the Seller's respective right, title and interest
in and to the following assets (wherever located) (all of the assets
to be sold, assigned, transferred and delivered to the Purchaser
hereunder herein called the "Acquired Assets"):
(a) One Thousand One Hundred Seventy-Nine (1,179) Units as set forth
on Schedule A (collectively, the "Rolling Stock") and all other
personalty and assets set forth on Schedule B (collectively, the
"Personalty") wherever located; and
(b) all rights under or pursuant to all warranties, representations
and guarantees made by suppliers, manufacturers and contractors
directly in connection with the operation of or affecting the
Rolling Stock or the Personalty, to the extent that such items
are transferable by the Seller.
2.2 PAYMENT OF PURCHASE PRICE. The aggregate purchase price for the
Acquired Assets shall be equal to the sum of the following items (the
"Purchase Price"), payable as set forth below, subject to adjustment
as provided in Section 2.5 hereof:
(a) the earnest money deposit in an amount equal to Six Hundred
Twelve Thousand Five Hundred Dollars ($612,500.00) in cash (the
"Deposit"), which Deposit has been previously paid by Purchaser
to the account of Seller held by Seller's Counsel; plus
(b) an amount equal to Five Million Five Hundred Eighty Seven
Thousand Five Hundred Dollars ($5,587,500.00) upon Closing;
All amounts to be paid by Purchaser under or pursuant to this Agreement shall be
paid to the Seller in cash in immediately available funds at Closing or at such
other times as expressly required hereunder.
2.3 TRANSFER TAX ESCROW. The Seller hereby directs that the sum of Twenty
Nine Thousand Six Hundred Dollars ($29,600.00) (the "Transfer Tax
Escrow") shall be retained in Klett Rooney Lieber & Schorling's Escrow
Account to be applied to the possible payment of any transfer tax
obligations in accordance with applicable orders of the Bankruptcy
Court in the event that Seller converts the Chapter 11 case to a case
under Chapter 7 of the Bankruptcy Code, in which situation, the
appropriate sums will be disbursed to the appropriate taxing
authorities. Upon confirmation of the Chapter 11 Plan, the Transfer
Tax Escrow shall be disbursed to the Seller. Purchaser acknowledges
that any and all transfer taxes due in connection with the Sale are
the obligation of Purchaser. Purchaser shall reimburse to Seller any
amounts required to be paid from the Transfer Tax Escrow promptly upon
Seller's request therefore. Purchaser shall indemnify and hold
harmless the Seller for the payment of any amounts inevitably due to
taxing authorities for transfer taxes which exceed the Transfer Tax
Escrow.
2.4 OBLIGATIONS IN RESPECT OF REQUIRED CONSENTS.
(a) The Seller shall not be required to incur any liability for any
expenses, costs or obligations on account of consents required
from any Third Party in connection with this Agreement or the
transactions contemplated hereby, other than the Seller's
professional fees incurred in connection with the negotiation and
preparation of this Agreement. The Purchaser shall cooperate with
the Seller's efforts to obtain any such required consents.
(b) The Seller shall not be required to incur any liability for any
expense, cost or obligation in order to satisfy any governmental
requirement.
3. REPRESENTATIONS AND WARRANTIES OF SELLER. Each of the Debtor Entities
represents and warrants, only with respect to itself, to the Purchaser as of the
date of this Agreement and the Closing Date (except where such representation or
warranty is made as of a specific date), as follows:
3.1 AUTHORITY. Each of the Debtor Entities has all necessary corporate
power and authority to own its respective Units and to carry on its
respective business and to enter into and perform its respective
obligations under this Agreement and the transactions contemplated
hereby.
3.2 TRANSFER OF PROPERTY. At and as of the Closing Date, the Seller will
have the right to sell, convey, transfer, assign and deliver to the
Purchaser the Acquired Assets on the terms set forth in the Sale
Order.
3.3 FILING OF CHAPTER 11 PLAN. Seller is presently preparing and shall
file a Chapter 11 Plan.
3.4 EXCLUSIVITY OF REPRESENTATIONS. The representations and warranties
made by the Seller in this Agreement are in lieu of and are exclusive
of all other representations and warranties, including, without
limitation, any implied warranties. The Seller hereby disclaims any
such other or implied representations or warranties notwithstanding
the delivery or disclosure to the Purchaser or its officers,
directors, employees, agents, or representatives of any documentation
or other information (including any financial projections or other
supplemental data). The Seller hereby disclaims any warranty (express
or implied) of merchantability or fitness for any particular purpose
as to any Acquired Asset.
3.5 DISCLAIMER. EXCEPT FOR THE SELLER'S REPRESENTATIONS AND WARRANTIES
CONTAINED IN THS ARTICLE 3 HEREOF; (a) THE SELLER HAS NOT MADE, AND
THE PURCHASER HAS NOT RELIED, AND WILL NOT RELY, ON ANY
REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH
RESPECT TO ANY MATTER RELATING TO THE ACQUIRED ASSETS; (b) THE
PURCHASER SHALL ACCEPT THE ACQUIRED ASSETS "AS IS," "WHERE IS" AND
"WITH ALL FAULTS," AND THE PURCHASER SHALL RELY UPON ITS OWN
EXAMINATION THEREOF. THE PURCHASER EXPRESSLY ACKNOWLEDGES THAT THE
SELLER HAS NOT MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, AT LAW OR IN EQUITY, AS TO THE ACCURACY OR COMPLETENESS OF
ANY INFORMATION REGARDING THE ACQUIRED ASSETS OR THE OBLIGATIONS
ASSUMED BY PURCHASER HEREUNDER, EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT OR THE SCHEDULES, AND THE PURCHASER FURTHER AGREES THAT
NEITHER THE SELLER NOR ANY OTHER PERSON SHALL HAVE OR BE SUBJECT TO
ANY LIABILITY TO THE PURCHASER OR ANY OTHER PERSON RESULTING FROM THE
PURCHASER'S USE OF ANY SUCH ACQUIRED ASSETS OR INFORMATION. THE SELLER
HAS NOT MADE, AND DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY
REPRESENTATION, WARRANTY OR INDEMNITY WITH RESPECT TO ENVIRONMENTAL
HAZARDS, LIABILITY, COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS
WITH RESPECT TO ENVIRONMENTAL MATTERS OR ANY ACQUIRED ASSET, THE
QUALITY OF ANY ACQUIRED ASSET, THE MERCHANTABILITY OF ANY ACQUIRED
ASSET, OR THE FITNESS OF ANY ACQUIRED ASSET FOR ANY PARTICULAR
PURPOSE. PURCHASER EXPRESSLY ACKNOWLEDGES, AND ACCEPTS THE ACQUIRED
ASSETS SUBJECT TO, THE FOREGOING DISCLAIMERS.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER. The Purchaser represents to
Seller as follows.
4.1 ORGANIZATION. The Purchaser is a corporation validly existing and in
good standing under the laws of the State of Alabama and has the full
power and authority to execute, deliver and perform this Agreement and
to consummate all of the transactions contemplated hereby.
4.2 AUTHORITY. The execution, delivery and performance by the Purchaser of
this Agreement and the consummation of the transactions contemplated
hereby and thereby have been duly authorized by all necessary action
on the part of the Purchaser and do not and will not violate any
provisions of its organizational documents, any applicable Regulation
or any Contract or Order binding upon it. This Agreement constitutes a
valid and binding agreement of the Purchaser, enforceable against the
Purchaser in accordance with its terms.
4.3 CONSENTS. No notice to, filing with, authorization of, exemption by,
or consent of any authority is required in order for the Purchaser to
consummate the transactions contemplated hereby.
4.4 BROKERS. Other than the Break-Up Fee payable by Purchaser to Michael
Fox International in accordance with the Sale Order (the "Break-Up
Fee"), the Purchaser has incurred no liability to any broker, finder
or agent with respect to the payment of any commission regarding the
consummation of the transactions contemplated hereby. The Purchaser
agrees that if any claims for commissions, fees or other compensation,
including, without limitation, brokerage fees, finder's fees, or
commissions are ever asserted against the Purchaser or the Seller in
connection with this transaction, all such claims shall be handled and
paid by the party whose actions form the basis of such claim and such
party shall indemnify (with counsel reasonably satisfactory to the
party(ies) entitled to indemnification) and hold the other harmless
from and against any and all such claims or demands asserted by any
person, firm or corporation in connection with the transaction
contemplated hereby. Purchaser agrees to promptly indemnify Seller for
any liability, cost, expense, claim, or damage (including attorney
fees and expenses) incurred by Seller arising from Purchaser's failure
to pay the Break-Up Fee or any portion thereof.
5. CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER. The obligations of the
Purchaser under this Agreement are, at the option of the Purchaser, subject to
satisfaction of the following conditions precedent on or before the Closing
Date.
5.1 COMPLIANCE WITH COVENANTS. The Seller shall have performed and
complied, in all material respects, with the obligations and covenants
required by this Agreement to be performed or complied with by the
Seller on or prior to the Closing Date.
5.2 APPROVALS. Except as otherwise expressly provided herein, all
authorizations, consents, filing and approvals necessary to permit the
Seller to perform the transactions contemplated hereby shall have been
duly obtained, made or given, shall be in form and substance
reasonably satisfactory to the Purchaser, shall not be subject to the
satisfaction of any condition that has not been satisfied or waived
and shall be in full force and effect. All terminations or expirations
of waiting periods imposed by any governmental authority necessary for
the transactions contemplated under this Agreement, if any, shall have
occurred.
5.3 LITIGATION. No Order shall have been issued restricting, prohibiting
or staying the consummation of the transactions contemplated by this
Agreement.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER. The obligations of the Seller
under this Agreement are, at the option of the Seller, subject to the
satisfaction of the following conditions precedent on or before the Closing
Date.
6.1 REPRESENTATIONS AND WARRANTIES TRUE AS OF CLOSING DATE. The
representations and warranties of the Purchaser contained herein shall
be true and correct in all material respects (except for such changes
as are contemplated by the terms of this Agreement) on and as of the
Closing Date (except for representations and warranties made as of a
specified date, which shall be true and correct as of that date in all
material respects) with the same force and effect as though made by
the Purchaser on and as of the Closing Date. The Purchaser shall have
performed and complied, in all material respects, with the obligations
and covenants required by this Agreement to be performed or complied
with by the Purchaser on or prior to the Closing Date.
6.2 BANKRUPTCY CONDITION. Any motion for rehearing or reconsideration of
the Sale Order shall have been denied or withdrawn, and the time
allowed for appeals of the Sale Order shall have expired without any
appeal having been taken or, if the Sale Order shall have been
appealed, no stay shall be in effect. Notwithstanding the provisions
of this Section 6.2, nothing in this Agreement shall preclude the
Seller or the Purchaser from consummating the transactions
contemplated herein if the Seller, in its sole discretion, waives the
requirement that the Sale Order or any other Order shall have become
final orders. No notice of such waiver of this or any other condition
to Closing need be given except to the Purchaser, it being the
intention of the parties hereto that the Seller shall be entitled to,
and is not waiving, the protection of section 363(m) of the Bankruptcy
Code, the mootness doctrine and any similar statute or body of law if
the Closing occurs in the absence of final orders.
6.3 PAYMENT. The Purchaser shall have paid the Purchase Price in
accordance with Section 2.2 hereof.
6.4 LITIGATION. No Order shall have been issued restricting, prohibiting
or staying the consummation of the transactions contemplated by this
Agreement.
6.5 ADDITIONAL MATTERS. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement or by the other agreements
referred to herein shall be reasonably satisfactory in form and
substance to the Seller and its counsel. The Seller shall have
received such additional documents, instruments or items of
information reasonably requested by it in respect of any aspect or
consequence of the transactions contemplated hereby.
7. CLOSING.
7.1 CLOSING. Provided that the Sale Order shall have been entered and no
stay with respect thereto shall be in effect, the Closing shall take
place on November 9, 2001 at the Seller's offices at 1 Rollins Plaza,
2200 Concord Pike, Wilmington, DE 19803 at 9:30 a.m. EST (the "Closing
Date").
7.2 DELIVERIES BY THE SELLER. At the Closing, the Seller will deliver the
following to the Purchaser:
(a) a Bill of Sale substantially in the form attached hereto as
Exhibit 1 duly executed by the Seller with respect to the
Acquired Assets to be transferred by Seller; and
(b) certificates of title with respect to the Rolling Stock for which
certificates of title are available, which are listed on Schedule
C hereto (the "Titled Units") duly endorsed for transfer to the
Purchaser (provided, however, that if any such certificates of
title are not readily obtainable by the Seller as of the Closing
Date, the Seller shall be permitted to deliver, within fifteen
(15) business days after Closing, such certificates of title or
copies of Seller's Requests for Replacement; and
(c) documentation evidencing ownership, or copies of Seller's
Requests for Replacement, with respect to the Rolling Stock for
which certificates of title are not available, which are listed
on Schedule D hereto (the "Untitled Units"); and
(d) certificates of compliance with respect to the Units listed on
Schedule E hereto, (the "Certificated Trailers") provided that
Purchaser acknowledges that as to the tanks set forth on Schedule
F hereto (the "Uncertificated Trailers") the tank manufacturer is
no longer in business and it is therefore impossible for Seller
to deliver the certificates of compliance; and
(e) a release letter executed by an authorized signatory of First
Union National Bank ("First Union"), which is attached hereto as
Exhibit 2 (the "First Union Release Letter"), under which First
Union releases its liens on the assets listed on Schedule G
hereto (the "First Union Liened Units"); and
(f) a release letter executed by an authorized signatory of Ark-CLO
2000-1 Ltd. ("Ark-CLO"), which is attached hereto as Exhibit 3
(the "Ark-CLO Release Letter"), under which Ark-CLO releases its
liens on the assets listed on Schedule H hereto (the "Ark-CLO
Liened Units"); and
(g) a copy of the executed Sale Order, which is hereby incorporated
herein by reference and is attached as Exhibit 4 hereto.
7.3 CONDITIONS CONSTITUTING DELIVERY BY SELLER. The Acquired Assets shall
be deemed to be delivered according to the following conditions:
(a) The Rolling Stock shall be deemed to be delivered upon delivery
by Seller of certificates of title or other documents evidencing
ownership as discussed in Section 7.2(b), (c) and (d) above.
(b) Purchaser hereby expressly agrees that with respect to the tires
located at the terminals specified on Schedule I hereto (the
"Tires"), identification by Seller of the locations of the Tires
constitutes delivery of the Tires.
7.4 DELIVERIES BY THE PURCHASER. At the Closing, the Purchaser will
deliver the following:
(a) the Purchase Price payable at Closing pursuant to and in
accordance with Section 2.2 hereof and the Sale Order; and
(b) all other documents and agreements required pursuant to this
Agreement or reasonably necessary to permit Purchaser and Seller
to effect the transactions contemplated hereunder, including
execution and delivery of any certificates of title or other
certifications, agreements or documents necessary to accept
transfer of any of the Acquired Assets and to the extent
reasonably requested by Seller, evidence of payment of any taxes
imposed upon Purchaser with respect to the transactions hereunder
or the acceptance of any of the Acquired Assets.
7.5 WAIVERS BY PURCHASER. Purchaser agrees to waive any and all rights
conferred to it under this Agreement with respect to the following
Units and under the following conditions:
(a) Purchaser acknowledges that any and all of the Rolling Stock and
Personalty located at the Spartanburg terminal (the "Spartanburg
Assets") may have been damaged and Purchaser hereby agrees to
accept all of the Acquired Assets including without limitation
the Spartanburg Assets as-is, where-is and with all faults and
agrees to waive any right to reject the Spartanburg Assets on any
basis; and
(b) In the event that Seller fails to clean or cause to be cleaned
the any of the Part B Units (as defined in Section 8.2 below)
within the Cleaning Period (as defined in Section 8.2 below),
Purchaser shall within ten (10) days after expiration of the
Cleaning Period (the "Election Period") deliver written notice to
Seller stating that Purchaser is electing to waive, without
recourse to the Seller, the Seller's performance of its
obligations under Section 8.2 hereof with respect to the Part B
Units and that Purchaser is electing to accept delivery of all,
or certain of, the Part B Units "AS IS, WHERE IS" in accordance
with the terms of this Agreement. If Purchaser shall fail to
deliver the notice required pursuant to this Section 7.5(b) on or
before the expiration of the Election Period with respect to all
or any of the Part B Units, then Purchaser shall be deemed to
have elected not to accept the Part B Units (or the Part B Units
which are not included in any notice actually delivered in
accordance with Section 7.5(b)). As to any Part B Units which
Purchaser does not elect to accept as described in this Section
7.5(b), the Purchaser agrees to waive its right to take
possession of such Part B Units and hereby releases Seller from
all obligations to Purchaser with respect to such Part B Units,
such that upon expiration of the Cleaning Period, Seller shall
have the right to sell or otherwise dispose of such Part B Units
to a Third Party.
(c) Purchaser acknowledges that the Units appearing on Schedule J
(the "Non-Spec Trailers") are not eligible for Certificates of
Compliance, and Purchaser agrees to accept delivery of such
Non-Spec Trailers and waives the right to reject any Non-Spec
Trailers on the basis that Certificates of Compliance are not
available for the Non-Spec Trailers. Seller's failure to deliver
Certificates of Compliance with respect to any Non-Spec Trailer
shall not constitute a default on the part of Seller under this
Agreement or the Sale Order.
8. POST-CLOSING OBLIGATIONS.
8.1 CERTAIN CONSENTS. If a consent of a third party which is required in
order to assign any Acquired Asset or any Contract (or in each case,
any claim, right or benefit arising thereunder or resulting therefrom)
is not obtained prior to the Closing Date, or if an attempted
assignment would be ineffective or would adversely affect the ability
of the Seller to convey its interest in question to the Purchaser, the
Seller will cooperate with the Purchaser and use commercially
reasonable efforts, at the Purchaser's expense, in any lawful
arrangement to provide that the Purchaser shall receive the Seller's
interest in the benefits of such Acquired Asset. If any consent or
waiver is not obtained before the Closing Date and the Closing is
nevertheless consummated, the Seller agrees to continue to use
commercially reasonable efforts to obtain all such consents as have
not been obtained prior to such date. The Purchase Price shall not be
subject to adjustment, and the Closing of the transactions
contemplated by this Agreement shall not be delayed, by reason of any
inability to obtain consent for assignment of any Acquired Asset. The
Purchaser acknowledges that certain consents to the transactions
contemplated by this Agreement may be required from parties to
agreements, contracts, leases or Permits (written or otherwise)
comprising the Acquired Assets to which the Seller is a party, and
such consents may not be obtained. The Purchaser agrees that Seller
shall not have any liability whatsoever to Purchaser arising out of or
relating to the failure to obtain any consents that may have been or
may be required in connection with the transactions contemplated by
this Agreement or because of the default, acceleration or termination
of any such agreement, contract, lease or Permit comprising the
Acquired Assets as a result thereof. The Purchaser further agrees that
no representation, warranty or covenant of the Seller contained herein
shall be breached or deemed breached and no condition of the Purchaser
shall be deemed not to be satisfied as a result of the failure to
obtain any consent or as a result of any such default, acceleration or
termination or any lawsuit, action, claim, proceeding or investigation
commenced or threatened by or on behalf of any persons arising out of
or relating to the failure to obtain any consent or any such default,
acceleration or termination.
CLEANING OF CERTAIN ROLLING STOCK BY SELLER. Within sixty (60)
days after Closing (the "Cleaning Period"), Seller shall (i)
internally clean or cause to be internally cleaned all of the Units
listed in Part A of Schedule K hereto (the "Part A Units"); and (ii)
use its commercially reasonable efforts to internally clean or cause
to be internally cleaned all of the Units listed in Part B of Schedule
K, (the "Part B Units", and together with the Part A Units
collectively referred to as the "Units to be Cleaned"). Seller will
utilize or cause to be utilized standard industry procedures referred
to as "cleaning for a future load" with respect to the cleaning of the
Units to be Cleaned, and the Units to be Cleaned shall be deemed to be
clean for purposes of Seller's obligation under this Section upon
completion of such standard industry procedures. Seller is under no
obligation under this Section to clean or cause to be cleaned the
Units listed on Schedule L hereto (the "Impaired Units") and Purchaser
agrees to accept the Impaired Units as-is and with all faults.
Purchaser agrees that all Units not appearing on Schedule K or
Schedule L are clean per Purchaser's inspection.
ACCEPTANCE OF UNITS AND PAYMENT OF RENT EXPENSES BY PURCHASER.
Purchaser agrees to remove all Units from the premises at which such
Units are located at the time of Closing in accordance with the times
specified by Seller on the Post Closing Acceptance and Rental Schedule
attached as Schedule M hereto (the "Post-Closing Acceptance
Schedule"). In the event that Purchaser fails to do so, Purchaser
agrees to indemnify and reimburse Seller for all expenses (the
"Post-Closing Rental Expenses") incurred by Seller as a result of
Purchaser's failure to remove any Units or any resulting extended
storage period. Purchaser agrees to remit reimbursement for the
Post-Closing Rental Expenses to Seller within five (5) days of receipt
of an invoice for the Post-Closing Rental Expenses from Seller. Seller
acknowledges that Purchaser is free to negotiate independent Unit
storage or rental arrangements with each property owner of the
premises at which Units are located (a "Lessor") in lieu of
reimbursing Seller for any Post-Closing Rental Expenses, provided that
reimbursement for the Post-Closing Rental Expenses shall be deemed to
be due and payable unless and until Seller receives a notice signed by
the appropriate Lessor(s) that independent arrangements have been made
and which releases Seller from any rental obligations that Seller
otherwise would have incurred as a result of Purchaser's failure to
remove the relevant Units from the premises of the Lessor(s
8.4 ASSIGNMENT OF CONTRACTS BY SELLER. Purchaser acknowledges that certain
of the Units may be subject to Contracts, under which Seller's rights
may or may not be assignable to Purchaser. To the extent that Seller's
rights under such Contracts are assignable, Seller agrees to use
commercially reasonable efforts to take all steps necessary to effect
such assignments of its rights within thirty (30) days after Closing.
In consideration for Seller's assignment of its rights under such
Contracts, Purchaser hereby relinquishes any right to seek indemnity
from Seller for any liabilities Purchaser may incur arising from such
Contracts, for any events that occur after or that occurred prior to
Closing, including any past actions of Seller which may give rise to
future liability for Purchaser as assignee of Seller's rights and
obligations under the Contracts. Purchaser acknowledges that the only
obligation Seller agrees to incur is to enforce on Purchaser's behalf
any Contract under which Seller's rights could not be assigned to
Purchaser.
8.5 CONSENTS AND APPROVALS. Subject to the provisions of Article 3 and
Section 8.1 hereof, the Seller and Purchaser shall cooperate with each
other:
(a) to obtain all necessary consents and approvals, as reasonably
requested by the Purchaser, to consummate the purchase and sale
of the Acquired Assets, together with any other necessary
consents and approvals to consummate the transactions
contemplated hereby, including, without limitation, obtaining the
Sale Order; and
(b) to make, as reasonably requested by the Purchaser, all filings,
applications, statements and reports to all authorities that are
required to be made prior to or after the Closing Date by or on
behalf of the Seller or any of its Affiliates pursuant to any
applicable Regulation in connection with this Agreement and the
transactions contemplated hereby.
provided, that the Seller shall not be required to make any
filing in connection with the transfer of the Acquired Assets or
take any other action required by this sentence unless the
Purchaser pays any and all fees and other charges imposed by any
applicable authority in connection with such filing, transfer or
other requested action. In the event that certain Acquired Assets
are not transferable on or before the Closing, but such Acquired
Assets are transferable after the Closing, the Seller shall
continue to use such commercially reasonable efforts in
cooperation with the Purchaser after the Closing as may be
required to obtain all required consents and approvals to
transfer such Acquired Assets after Closing and shall do all
things reasonably necessary to give the Purchaser the benefits
that would be obtained with respect to such Acquired Assets;
provided, however, the Seller shall in no event be required to
take any action required by this sentence unless the Purchaser
pays any and all fees and other charges imposed by any applicable
authority in connection with such filing, transfer or other
requested action.
8.6 FURTHER ASSURANCES. The Seller shall execute such documents and take
such further actions as may be reasonably required to carry out the
provisions of this Agreement and the transactions contemplated hereby;
provided, however, that the Seller shall not be obligated to incur or
be liable for any expense, cost or obligation in connection therewith.
The Seller shall use commercially reasonable efforts to fulfill or
obtain the fulfillment of the conditions set forth in Articles 7, 8
and 10 hereof. The Purchaser shall execute such documents and take
such further actions as may be reasonably required to carry out the
provisions of this agreement and the transactions contemplated hereby;
provided, however, that the Purchaser shall not be obligated to incur
or be liable for any expense, cost or obligation in connection
therewith. The Purchaser shall use commercially reasonable efforts to
fulfill or obtain the fulfillment of the conditions set forth in
Article 7, 8 and 10 hereof.
9. MISCELLANEOUS.
9.1 EXPENSES. Each party hereto shall bear its own costs and expenses,
including attorneys' fees, with respect to the transactions
contemplated hereby. Notwithstanding the foregoing, in the event of
any action or proceeding to interpret or enforce this Agreement, the
prevailing party in such action or proceeding (i.e., the party who, in
light of the issues contested or determined in the action or
proceeding, was more successful) shall be entitled to have and recover
from the non-prevailing party such costs and expenses (including,
without limitation, all court costs and reasonable attorneys' fees) as
the prevailing party may incur in the pursuit or defense thereof.
9.2 LIQUIDATED DAMAGES. In the event the Closing is not consummated as a
result of a breach by the Purchaser, the Seller's remedy shall
include, but not be limited to, the retention of the full amount of
the Deposit as liquidated damages. In addition, in the event that the
Purchaser breaches the Confidentiality Agreement, in addition to
retaining the full amount of the Deposit, the Seller shall be entitled
to exercise all other rights existing in its favor.
9.3 AMENDMENT. This Agreement may not be amended, modified or supplemented
except by a written instrument signed by all of the parties to this
Agreement.
9.4 NOTICES. Any notice, request, instruction or other document to be
given hereunder by a party hereto shall be in writing and shall be
deemed to have been given, (a) when received if given in person, (b)
on the date of transmission if sent by telex, telecopy or other wire
transmission (with answer back confirmation of such transmission), (c)
upon delivery, if delivered by a nationally known commercial courier
service providing next day delivery service (such as Federal Express),
or (d) upon delivery, or refusal of delivery, if deposited in the U.S.
mail, certified or registered mail, return receipt requested, postage
prepaid. A copy of each notice delivered by the Seller or the
Purchaser under this Agreement shall be delivered to the Seller or
Purchaser at the addresses listed below, or to such other individual
or address as a party hereto may designate for itself by notice given
as herein provided:
IF TO SELLER: WITH A COPY TO:
Matlack Systems, Inc. Klett Rooney Lieber & Schorling, a
One Rollings Plaza professional corporation
2200 Concord Pike Two Logan Square, 12th Floor
Wilmington, DE 19803 Philadelphia, PA 19103-2756
Attn: Mr. Pat Bagley Attn: William H. Schorling, Esq.
Telephone: 302-426-2930 Telephone: 215-567-7500
Facsimile: 302-426-3298 Facsimile: 215-567-2737
IF TO PURCHASER: WITH A COPY TO:
Southern Tank Leasing Heiman, Aber, Goldlust & Baker
P.O. Box 1237, Hwy. 43 South First Federal Plaza
Demopolis, AL 36732 702 King Street, Suite 600
Attn: Boyd L. Ducket Wilmington, DE 19801
Telephone: 334-289-8885 Attn: Henry A. Heiman
Facsimile: 334-289-8801 Telephone: 302-658-1800
Facsimile: 302-658-1473
9.5 WAIVERS. The failure of a party hereto at any time or times to require
performance of any provision hereof shall in no manner affect its
right at a later time to enforce the same. No waiver by a party of any
condition or of any breach of any term, covenant, representation or
warranty contained in this Agreement shall be effective unless in
writing, and no waiver in any one or more instances shall be deemed to
be a further or continuing waiver of any such condition or breach in
other instances or a waiver of any other condition or breach of any
other term, covenant, representation or warranty.
9.6 COUNTERPARTS AND EXECUTION. This Agreement may be executed
simultaneously in counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. Any counterpart may be executed by facsimile signature and
such facsimile signature shall be deemed an original.
9.7 HEADINGS. The headings preceding the text of the Articles and Sections
of this Agreement and the Schedules hereto are for convenience only
and shall not be deemed part of this Agreement.
9.8 APPLICABLE LAW AND JURISDICTION. THIS AGREEMENT (AND ALL DOCUMENTS,
INSTRUMENTS, AND AGREEMENTS EXECUTED AND DELIVERED PURSUANT TO THE
TERMS AND PROVISIONS HEREOF (COLLECTIVELY, THE "ANCILLARY DOCUMENTS"))
SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
BANKRUPTCY CODE AND TO THE EXTENT NOT INCONSISTENT WITH THE BANKRUPTCY
CODE, THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED WHOLLY WITHIN SUCH JURISDICTION. THE PURCHASER AND
THE SELLER FURTHER AGREE THAT THE BANKRUPTCY COURT SHALL HAVE
EXCLUSIVE JURISDICTION OVER ALL DISPUTES AND OTHER MATTERS RELATING TO
(A) THE INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT OR ANY
ANCILLARY DOCUMENT; AND/OR (B) THE ACQUIRED ASSETS AND/OR ASSUMED
LIABILITIES AND THE PURCHASER EXPRESSLY CONSENTS TO AND AGREES NOT TO
CONTEST SUCH EXCLUSIVE JURISDICTION; PROVIDED, HOWEVER, THAT IF THE
BANKRUPTCY COURT REFUSES TO ACCEPT JURISDICTION OVER ANY SUCH DISPUTE,
THEN ANY STATE OR FEDERAL COURT LOCATED IN DELAWARE SHALL HAVE
JURISDICTION OVER SUCH DISPUTE AND THE PURCHASER AND THE SELLER HEREBY
CONSENT TO THE JURISDICTION OF SUCH COURT IN ANY SUCH CASE.
9.9 BINDING NATURE; ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by
any of the parties hereto without prior written consent of the other
parties (which shall not be unreasonably withheld or delayed); except
(a) that the Purchaser may assign any of its rights (but not its
obligations) hereunder to any Affiliate, wholly-owned subsidiary or
its lenders, (b) the Purchaser may grant a security interest in its
rights and interests hereunder to its lenders, (c) the rights and
interests hereunder may be assigned to a trustee appointed under
chapter 11 or chapter 7 of the Bankruptcy Code, (d) this Agreement may
be assigned to any entity appointed as successor to the Seller
pursuant to a confirmed chapter 11 plan and (e) as otherwise provided
in this Agreement. Nothing contained herein, express or implied, is
intended to confer on any Person other than the parties hereto or
their successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
9.10 NO THIRD PARTY BENEFICIARIES. This Agreement is solely for the benefit
of the parties hereto and no provision of this Agreement shall be
deemed to confer upon third parties any rights, remedies, claims, or
causes of action.
9.11 TAX MATTERS. In the event that section 1146(c) of the Bankruptcy Code
does not apply to the transactions contemplated hereby, the Purchaser
shall be responsible for the timely payment of all sales, use,
transfer (including, without limitation, documentary transfer, stamp
and like taxes) and similar taxes payable in connection with the
consummation of the transactions contemplated by this Agreement and
the sale and transfer of the Acquired Assets to the Purchaser or its
designee.
9.12 TERMINATION OF REPRESENTATIONS, WARRANTIES AND COVENANTS. All
representations and warranties made by the Seller in this Agreement
shall terminate on the Closing Date upon the purchase of the Acquired
Assets by the Purchaser and the Seller shall have no liability after
the Closing Date for any breach of any representation or warranty.
Except as expressly set forth in Section 9 hereof, all covenants of
the Seller shall lapse at, and be of no further force and effect
following, the Closing.
9.13 CONSTRUCTION. The language used in this Agreement will be deemed to be
the language chosen by the parties to this Agreement to express their
mutual intent, and no rule of strict construction shall be applied
against any party. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires
otherwise.
9.14 PUBLIC ANNOUNCEMENTS. Except as required by law or in connection with
the Chapter 11 Case, neither the Seller nor the Purchaser shall issue
any press release or public announcement concerning this Agreement or
the transactions contemplated hereby without obtaining the prior
written approval of the other party hereto relating to the contents
and manner of presentation and publication thereof, which approval
will not be unreasonably withheld or delayed. Prior to making any
public disclosure required by applicable law, the disclosing parties
shall give the other party a copy of the proposed disclosure and
reasonable opportunity to comment on the same.
9.15 ENTIRE UNDERSTANDING. This Agreement, the Exhibits and the Schedules
hereto set forth the entire agreement and understanding of the parties
hereto in respect to the transactions contemplated hereby and the
Agreement, the Exhibits and the Schedules hereto supersede all prior
agreements, arrangements and understandings relating to the subject
matter hereof and are not intended to confer upon any other person any
rights or remedies hereunder. There have been no representations or
statements, oral or written, that have been relied on by any party
hereto, except those expressly set forth in this Agreement, the
Exhibits and the Schedules.
______________________________
Signatures appear on next page
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered on the date first above written.
THE PURCHASER:
SOUTHERN TANK LEASING, INC.
WITNESS:
-------------------- By: /s/ Boyd Duckett
-------------------------
Name: Boyd Ducket
Title: Executive Vice President
THE SELLER:
MATLACK (DE), INC.
WITNESS:/s/ Patrick J. Bagley
---------------------- By: /s/ Michael B. Kinnard
--------------------------
Name: Michael B. Kinnard
Title: President
WITNESS:/s/ Patrick J. Bagley MATLACK, INC.
---------------------
By: /s/ Michael B. Kinnard
--------------------------
Name: Michael B. Kinnard
Title: President
WITNESS: /s/ Michael B. Kinnard TRANSPORTERS ADJUSTERS, INC.
-----------------------
By: /s/ Patrick J. Bagley
---------------------
Name: Patrick J. Bagley
Title: Secretary
WITNESS: /s/ Patrick J. Bagley MATLACK LEASING CORPORATION
----------------------
By: /s/ Michael B. Kinnard
----------------------
Name: Michael B. Kinnard
Title: President
WITNESS: /s/ Patrick J. Bagley BAYONNE TERMINALS, INC.
----------------------
By: /s/ Michael B. Kinnard
----------------------
Name: Michael B. Kinnard
Title: President
WITNESS: /s/ Patrick J. Bagley DISTRIBUTION CENTER OF BAYONNE, INC.
----------------------
By: /s/ Michael B. Kinnard
----------------------
Name: Michael B. Kinnard
Title: President
WITNESS: /s/ Patrick J. Bagley BULK TERMINALS, INC.
----------------------
By: /s/ Michael B. Kinnard
----------------------
Name: Michael B. Kinnard
Title: President
WITNESS: /s/ Patrick J. Bagley MATLACK INTERNATIONAL, INC.
----------------------
By: /s/ Michael B. Kinnard
----------------------
Name: Michael B. Kinnard
Title: President
WITNESS: /s/ Patrick J. Bagley MATLACK PROPERTIES
----------------------
By: /s/ Michael B. Kinnard
----------------------
Name: Michael B. Kinnard
Title: President
WITNESS: /s/ Patrick J. Bagley MATLACK SYSTEMS, INC.
----------------------
By: /s/ Michael B. Kinnard
----------------------
Name: Michael B. Kinnard
Title: President
Exhibit 2(d)
- --------------------------------------------------------------------------------
BILL OF SALE
- --------------------------------------------------------------------------------
THIS BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Instrument") is
made as of November 9, 2001 (the "Effective Date"), by and between MATLACK,
INC., MATLACK (DE), INC., MATLACK, INC., TRANSPORTERS ADJUSTERS, INC., MATLACK
LEASING CORPORATION, BAYONNE TERMINALS, INC., DISTRIBUTION CENTER OF BAYONNE,
INC., BULK TERMINALS, INC., MATLACK INTERNATIONAL, INC., AND MATLACK PROPERTIES,
INC. (collectively, the "Debtor Entity" or "Seller") debtors and debtors in
possession under Chapter 11 Case No. 01-01114 pending in the United States
Bankruptcy Court for the District of Delaware, and SOUTHERN TANK LEASING, INC.,
a Alabama corporation ("Transferee").
RECITALS
WHEREAS, the Debtor Entity has sought relief under Chapter 11 of Title 11 of the
United States Code (the "Code") by commencing a voluntary case (the "Bankruptcy
Case") in the United States Bankruptcy Court for the District of Delaware (the
"Bankruptcy Court"); and
WHEREAS, pursuant to that certain Asset Purchase Agreement dated as of November
9, 2001 (the "Purchase Agreement"), and the documents and agreements delivered
pursuant thereto, the Debtor Entity and Transferee have agreed that Transferee
shall purchase the rights and assets identified on Exhibit A attached hereto
(collectively, the "Purchased Assets") in the manner and subject to the terms
and conditions set forth in the Purchase Agreement and the applicable provisions
of the Code, and pursuant and subject to the "Order under 11 U.S.C.
ss.ss.105(a), 363, and 1146(c), and Fed. R. Bankr. P. 2002, 6004 and 9014, (A)
Authorizing and Approving Sale of Rolling Stock free and clear of Liens, Claims,
and Encumbrances, and (B) Determining that Such Sale is Exempt from any Stamp,
Transfer, Recording or Similar Tax" entered by the Bankruptcy Court on November
6, 2001 (a copy of which is attached hereto at Exhibit B) (the "Sale Order");
and
WHEREAS, in furtherance and confirmation of the provisions of the Purchase
Agreement and the Sale Order, the Debtor Entity has agreed to sell, convey,
assign and transfer to Transferee all of its respective rights, title and
interests to said Purchased Assets, all in the manner and subject to the terms
and conditions set forth in the Sale Order and as set forth more specifically in
this Instrument; and
WHEREAS, the parties hereto wish to confirm by this Instrument their intention
that the Purchased Assets be and have been transferred to Transferee in
accordance with the Sale Order.
NOW, THEREFORE, the parties hereto, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, agree as follows:
1. TRANSFER OF ASSETS.
(a) Transferee has paid to (as for the benefit of) Debtor Entity the
amount of SIX MILLION TWO HUNDRED THOUSAND DOLLARS ($6,200,000.00)
(the "Purchase Price") in full payment for the Purchased Assets. The
Debtor Entity acknowledges receipt of the Purchase Price and shall
make (or cause to be made) the disbursement of the Purchase Price as
required by (or on behalf of) the Debtor Entity pursuant to the Sale
Order.
(b) Except as otherwise provided hereunder, and as provided in and subject
to the Sale Order, the Debtor Entity hereby unconditionally assigns,
transfers, conveys, sets over, grants, bargains, sells and delivers to
Transferee, as of the Effective Date, and Transferee has accepted and
hereby accepts, as of the Effective Date, all right, title and
interest of the Debtor Entity in and to all of the Purchased Assets.
(c) Pursuant to the Sale Order, the Purchased Assets are hereby
transferred to Transferee free and clear of all existing mortgages,
liens, encumbrances, security interests and claims of any nature in
accordance with Section 363(f) of the Code, for Transferee to have and
to hold the Purchased Assets unto Transferee, its successors and
assigns, to and for its and their use and benefit forever.
(d) Except as otherwise specifically set forth in this Instrument or the
Sale Order, the Purchased Assets are being transferred by the Debtor
Entity on an "AS IS, WHERE IS" BASIS, in the condition and at the
respective locations of the Purchased Assets on the Effective Date,
and the Debtor Entity makes no warranties, express or implied, with
respect to the assets, including but not limited to any warranty of
merchantability or warranty of fitness for a particular purpose.
(e) Transferee acknowledges that upon Closing, Transferee has received the
entirety of the Debtor Entity's files related to the Purchased assets.
2. POWER OF ATTORNEY. For the consideration aforesaid, the Debtor Entity hereby
constitutes and appoints Transferee, its successors and assigns, the true and
lawful attorney or attorneys of the Debtor Entity with full power of
substitution, for the Debtor Entity and in its respective name and stead, or
otherwise, but on behalf and for the benefit of Transferee, its successors and
assigns, to demand and receive from time to time, any and all of the Purchased
Assets given, granted, assigned, transferred, conveyed, set over, confirmed and
delivered and to give receipts and releases for and in respect of the same and
any part thereof, and from time to time to institute and prosecute in the name
of the Debtor Entity, but for the benefit of Transferee, its successors and
assigns, any and all proceedings at law, in equity or otherwise, which
Transferee, its successors or assigns, may deem proper in order to collect,
assert or enforce any claim, right or title of any kind in and to the Purchased
Assets hereby given, granted, assigned, transferred, set over, confirmed,
delivered or conveyed, and to defend or compromise any or all actions, suits or
proceedings in respect of any said Purchased Assets and do all such acts and
things in relation thereto as Transferee, its successors and assigns, shall deem
advisable, the Debtor Entity hereby declaring that the appointment made and the
powers hereby granted are coupled with an interest and are and shall be
irrevocable by the Debtor Entity in any manner and for any reason.
3. FURTHER ASSURANCES. The Debtor Entity and its respective successors and
assigns, hereby covenants with Transferee, and its successors and assigns, that
the Debtor Entity (and its respective successors and assigns) will do, execute,
acknowledge and deliver, or will cause to be done, executed, acknowledged and
delivered all such further acts, deeds, bills of sale, transfers, assignments
and conveyances, and powers of attorney, conveying and confirming unto
Transferee (and its successors and assigns) all and singular, the Purchased
Assets hereby granted, assigned, transferred, conveyed and delivered as
Transferee (or its successors or assigns) shall reasonably require; provided,
however, that Transferee, or its successors and assigns, shall prepare all
necessary documentation.
4. ENTIRE AGREEMENT. This Instrument together with the Purchase Agreement and
the documents delivered pursuant thereto constitutes the entire agreement among
the parties with respect to the subject matter hereof and supersedes any prior
writing, agreement or understanding among the parties, or between the Debtor
Entity and any other party, with respect to the subject matter hereof.
5. AMENDMENT; WAIVER. Except as provided otherwise herein, this Instrument may
not be amended, nor may any rights hereunder be waived, except by an instrument
in writing signed by the parties hereto.
6. COUNTERPARTS. This Instrument may be executed in any number of counterparts
of the signature pages, each of which shall be considered an original, but all
of which together shall constitute one and the same instrument.
7. HEADINGS. The section and other headings contained in this Instrument are for
reference purposes only and shall not affect the meaning or interpretation of
this Instrument.
8. RECITALS. The recitals set forth at the beginning of this Instrument are
fully incorporated into the body of this Instrument.
9. SEVERABILITY. If any provision of that Instrument is declared void by any
court or regulatory agency of competent jurisdiction, the validity of any other
provision of this Instrument shall not be affected and shall remain in full
force and effect. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties shall negotiate in
good faith to modify this Instrument so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that the
agreements contemplated hereby are fulfilled to the extent possible after such a
determination.
10. SURVIVAL. All representations and warranties made by the Debtor Entity and
Transferee in this Agreement or in any exhibit, certificate, document or
instrument delivered pursuant to the provisions of this Instrument or in
connection with the transactions contemplated in this Instrument, and the
remedies of the other party with respect thereto, shall survive the execution of
this Instrument.
11. BINDING EFFECT. This Instrument shall be binding upon and inure to the
benefit of the parties hereto, and their respective successors and assigns.
12. GOVERNING LAW. This Instrument shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to its
conflicts of laws principles.
___________________________
Signatures appear on next page
IN WITNESS WHEREOF, the parties hereto have caused this Instrument to be duly
executed and delivered, intending to be legally bound hereby.
THE TRANSFEREE:
WITNESS: SOUTHERN TANK LEASING, INC.
-----------------------
By: /s/ Boyd Duckett
----------------
Name: Boyd Ducket
Title: Executive Vice President
THE DEBTOR ENTITY:
WITNESS: /s/ Patrick J. Bagley MATLACK (DE), INC.
----------------------
By: /s/ Michael B. Kinnard
----------------------
Name: Michael B. Kinnard
Title: President
WITNESS: /s/ Patrick J. Bagley MATLACK, INC.
----------------------
By: /s/ Michael B. Kinnard
----------------------
Name: Michael B. Kinnard
Title: President
WITNESS: /s/ Michael B. Kinnard TRANSPORTERS ADJUSTERS, INC.
-----------------------
By: /s/ Patrick J. Bagley
---------------------
Name: Patrick J. Bagley
Title: Secretary
WITNESS: /s/ Patrick J. Bagley MATLACK LEASING CORPORATION
----------------------
By: /s/ Michael B. Kinnard
----------------------
Name: Michael B. Kinnard
Title: President
WITNESS: /s/ Patrick J. Bagley BAYONNE TERMINALS, INC.
----------------------
By: /s/ Michael B. Kinnard
----------------------
Name: Michael B. Kinnard
Title: President
WITNESS: /s/ Patrick J. Bagley DISTRIBUTION CENTER OF BAYONNE, INC.
----------------------
By: /s/ Michael B. Kinnard
----------------------
Name: Michael B. Kinnard
Title: President
WITNESS: /s/ Patrick J. Bagley BULK TERMINALS, INC.
----------------------
By: /s/ Michael B. Kinnard
----------------------
Name: Michael B. Kinnard
Title: President
WITNESS: /s/ Patrick J. Bagley MATLACK INTERNATIONAL, INC.
----------------------
By: /s/ Michael B. Kinnard
----------------------
Name: Michael B. Kinnard
Title: President
WITNESS: /s/ Patrick J. Bagley MATLACK PROPERTIES
----------------------
By: /s/ Michael B. Kinnard
----------------------
Name: Michael B. Kinnard
Title: President
WITNESS: /s/ Patrick J. Bagley MATLACK SYSTEMS, INC.
----------------------
By: /s/ Michael B. Kinnard
----------------------
Name: Michael B. Kinnard
Title: President