EXHIBIT 2.02
EXECUTION COPY
AMENDMENT NO. 1 dated as of September 19, 2003 (this
"Amendment") to the Asset Purchase Agreement, dated as of July 22, 2003, among
WABASH NATIONAL CORPORATION, APEX TRAILER LEASING & RENTALS, L.P., WABASH
NATIONAL TRAILER CENTERS, INC., WTSI TECHNOLOGY CORP., AURORA TRAILER HOLDINGS
LLC, AURORA TRAILER LEASING & RENTAL LLC and AURORA PARTS & ACCESSORIES LLC.
Reference is made to that certain Asset Purchase Agreement,
dated as of July 22, 2003 (the "Asset Purchase Agreement"), among Wabash
National Corporation, Apex Trailer Leasing & Rentals, L.P., Wabash National
Trailer Centers, Inc., WTSI Technology Corp. (previously referred to as WTSI
Technology Corporation), Aurora Trailer Holdings LLC (formerly known as Aurora
Trailers Holdings LLC), Aurora Trailer Leasing & Rental LLC (formerly known as
Apex Trailer Leasing & Rental LLC) and Aurora Parts & Accessories LLC. All
capitalized terms used but not defined in this Amendment shall have the meanings
given to them in the Asset Purchase Agreement, as amended hereby. Unless
otherwise indicated, all references to Schedules and Sections in this Amendment
shall refer to the respective Schedules and Sections of the Asset Purchase
Agreement.
The parties have agreed to amend certain provisions of the
Asset Purchase Agreement as set forth herein pursuant to the terms and
conditions hereof.
Accordingly, in consideration of the mutual covenants and
agreements herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Amendment to Section 4.14 (Confidentiality). Section
4.14 is hereby amended by inserting the following at the end of the text
thereof:
"Notwithstanding the foregoing, any party to this Agreement
(and any employee, representative or other agent of any party
to this Agreement) may disclose to any and all Persons,
without limitation of any kind, the tax treatment and tax
structure of the transactions contemplated by this Agreement
and all materials of any kind (including opinions or other tax
analyses) that are provided to it relating to such tax
treatment and tax structure; provided, however, that such
disclosure may not be made to the extent required to be kept
confidential to comply with any applicable federal or state
securities laws; provided further that (to the extent not
inconsistent with the foregoing) such disclosure shall be made
without disclosing the names or other identifying information
of any party.".
2. Amendment to Section 6.8 (Non-Compete;
Non-Solicitation; Non-Interference). Section 6.8 is hereby amended by inserting
the following at the end of the text of Section 6.8(d):
"Notwithstanding anything herein to the contrary, neither the
continuation of the operations referred to on Schedule 2.13(e)
nor Buyers' seeking or abstaining from
seeking enjoinment of, or other legal recourse against, such
operations shall be deemed to breach this Section 6.8(d).".
3. Amendment to Schedule 1.1(b)(v) (Intellectual
Property). Schedule 1.1(b)(v) is hereby amended by replacing the text set forth
in the column titled "Registration/Application No." directly to the right of the
text "APEX TRAILER LEASING & RENTALS" in the column titled "Xxxx" in its
entirety with the following:
"United States Trademark App. Serial No. 76/100,782".
4. Amendments to Schedule 1.1(c)(viii) (Excluded
Contracts). Schedule 1.1(c)(viii) is hereby amended by:
(a) inserting the following at the end of the text
thereof:
"(vii) all contracts relating to the financing arrangements
described in the attached spreadsheet entitled "Apex Finance
Operations"."; and
(b) attaching Exhibit A attached hereto in its
entirety thereto.
5. Amendment to Schedule 2.11(a) (Facilities). Schedule
2.11(a) is hereby amended by replacing it in its entirety with Exhibit B
attached hereto.
6. Amendment to Schedule 2.11(b) (Landlord Consents).
Schedule 2.11(b) is hereby amended by replacing it in its entirety with Exhibit
C attached hereto.
7. Amendment to Schedule 2.13(f) (Validity of
Intellectual Property). Schedule 2.13(f) is hereby amended by deleting the
following from the text thereof:
""Pro-Par" registration with the Mexican Trademark Office
expires September 2, 2003.
"Xxxxxxxxxxxx.xxx" domain name registration expires September
7, 2003.".
8. Except as expressly set forth in this Amendment, the
Asset Purchase Agreement shall remain in full force and effect in accordance
with the provisions thereof as in existence on the date hereof. After the date
hereof, any reference to the Asset Purchase Agreement shall mean the Asset
Purchase Agreement as modified by the provisions of this Amendment.
9. This Amendment may be executed by the parties in
counterparts, in which event each shall be deemed an original and all of which
together shall constitute but one agreement. Notwithstanding the foregoing, the
parties may deliver executed counterparts via facsimile transmission, with
original counterparts to be delivered in due course, which shall be effective as
delivery of an original.
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Please acknowledge agreement and acceptance of this Amendment
by signing in the space indicated below.
Sincerely,
AURORA TRAILER HOLDINGS LLC
By _____________________________________________
Name: Xxxxx Xxxxx
Title: President and Chief Executive Officer
AURORA TRAILER LEASING & RENTAL LLC
By _____________________________________________
Name: Xxxxx Xxxxx
Title: President and Chief Executive Officer
AURORA PARTS & ACCESSORIES LLC
By _____________________________________________
Name: Xxxxx Xxxxx
Title: President and Chief Executive Officer
Agreed and accepted as of September __,
2003:
WABASH NATIONAL CORPORATION
By ________________________________
Name: Xxxxxxxxxxx X. Black
Title: Authorized Representative
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APEX TRAILER LEASING & RENTALS, L.P.
By ________________________________
Name: Xxxxxxxxxxx X. Black
Title: Authorized Representative
WABASH NATIONAL TRAILER CENTERS, INC.
By ________________________________
Name: Xxxxxxxxxxx X. Black
Title: Authorized Representative
WTSI TECHNOLOGY CORP.
By ________________________________
Name: Xxxxxxxxxxx X. Black
Title: Authorized Representative
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Exhibit A
[Attach spreadsheet entitled "Apex Finance Operations".]
Exhibit B
[Attach corrected spreadsheet entitled "Facilities"]
Exhibit C
[Attach corrected spreadsheet entitled "Landlord Consents"]
