SECOND AMENDMENT TO AMENDED AND RESTATED STOCK AND LIMITED PARTNERSHIP INTEREST PURCHASE AGREEMENT
SECOND
AMENDMENT TO AMENDED AND RESTATED STOCK AND
LIMITED
PARTNERSHIP INTEREST PURCHASE AGREEMENT
WHEREAS,
CHARYS HOLDING COMPANY, INC., a Delaware corporation (the “Purchaser”),
COTTON HOLDINGS 1, INC., a Delaware corporation (“Cotton
Holdings”),
COTTON COMMERCIAL USA, LP, a Texas limited partnership (“Cotton
Commercial”),
COTTON RESTORATION OF CENTRAL TEXAS, LP, a Texas limited partnership
(“Cotton
Restoration”),
XXXXX
XXXXXXXXX, XXXXX XXXXXX, XXXXXXX XXXXXXXX, XXXXX XXXXXXX and XXXXX XXXX
(collectively, the “Cotton
Holdings Sellers”),
XXXXX
XXXXXXXX (a/k/a Xxxxx Xxxxxxx Xxxxxxxx) and XXXX XXXXXXX (collectively, the
“Cotton
Commercial Sellers”),
and
XXXXXX XXXXXXXXX and XXXXXXX XXXXX (collectively, the “Cotton
Restoration Sellers”
and,
together with the Cotton Holdings Sellers and Cotton Commercial Sellers, the
“Cotton
Sellers”),
joined therein by C&B/COTTON HOLDINGS, INC., a Delaware corporation (the
“Acquisition
Subsidiary”),
and
CROCHET & BOREL SERVICES, INC., a Texas corporation (“Crochet
& Borel”),
both
of which are wholly owned subsidiaries of the Purchaser, for the purposes
therein expressed, previously entered into that certain Stock and Limited
Partnership Interest Purchase Agreement dated as of September 1, 2006, as
amended by that certain First Amendment to Purchase Agreement dated October
6,
2006, as further amended by that certain Second Amendment to Purchase Agreement
dated October 19, 2006, as further amended by that certain Third Amendment
to
Purchase Agreement dated October 31, 2006, and as further amended by that
certain Amended & Restated Stock and Limited Partnership Interest Purchase
Agreement dated December 8, 2006, and as further amended by that certain
Amendment To Amended And Restated Stock And Limited Partnership Interest
Purchase Agreement and Stock Purchase Agreement (the “December
8th Amendment”,
and as
amended, the “Original
Agreement”);
and
WHEREAS,
all capitalized terms used herein shall have the same meanings ascribed to
those
terms as defined in the Original Agreement and the Purchase Agreement, unless
the context requires otherwise; and
WHEREAS,
the parties desire to further amend the Original Agreement as provided
herein;
NOW,
THEREFORE, in consideration of the mutual representations, warranties, covenants
and agreements herein contained, and upon and subject to the terms and the
conditions hereinafter set forth, the parties do hereby agree as
follows:
1.
Amendments
to the Original Agreement.
The
following amendments to the Original Agreement are hereby made:
(a)
Section 4.07 of the Original Agreement is hereby amended in its entirety to
read
as follows:
“4.07
Financial
Statements.
Schedule
4.07
contains
(i) the audited consolidated balance sheets of Cotton Holdings 1, Inc. and
Subsidiaries (including, without limitation, Cotton Commercial, Cotton
Restoration, and Cotton Restoration, LP) as of the years ended October 31,
2004
and October 31, 2005 prepared by the Cotton Group Companies’ certified public
accountant (the “2004/2005
Audited Financial Statements”),
and
the related statements of income, retained earnings, and cash flows for the
years then ended, and the related notes thereto; and (ii) the audited
consolidated balance sheet of Cotton Holdings 1, Inc. and Subsidiaries
(including, without limitation, Cotton Commercial, Cotton Restoration, and
Cotton Restoration, LP) for the year ended October 31, 2006, and the related
statements of income, retained earnings, and cash flows (the “2006
Audited Financial Statements”,
and
collectively with the 2004/2005 Audited Financial Statements, the “Audited
Financial Statements”,
and
(iii) the unaudited consolidated balance sheet of Cotton Holdings 1, Inc. and
its subsidiaries as of January 31, 2007, and the related statements of income
and retained earnings for the 3-month period then ended as commonly prepared
(the “Interim Financial Statements”, together with the Audited Financial
Statements, the “Current
Financial Statements”).
The
Current Financial Statements present fairly the financial position of the Cotton
Group Companies as of the dates thereof, and the related results of its
operations for the years then ended. The Auditied Financial Statements have
been
prepared in accordance with generally accepted accounting principles,
consistently applied (“GAAP”),
and
the Interim Financial Statements have been prepared in accordance with GAAP
for
interim statements on a basis consistent with prior periods. All adjustments,
consisting of normal, recurring accruals necessary for a fair presentation,
have
been made in the Interim Financial Statements. The balance sheets as of October
31, 2006 (the “Audited
Balance Sheet Date”)
included in the Audited Financial Statements are referred to herein as the
“Audited
Balance Sheets”.”
(b) The
terms
“Reviewed Financial Statements” and “Reviewed Balance Sheets” are hereby
replaced in the Original Agreement (in each instance) with the terms “Audited
Financial Statements” and “Audited Balance Sheets” respectively; and The terms
“Interim Balance Sheet” and “Interim Financial Statements”, having been deleted
by the December 8th Amendment, are hereby added back to the Original Agreement
in their original location (in each instance) in the Original
Agreement.
2. Updated
Schedules To The Original Agreement.
To the
extent any information contained in any of the Schedules attached to the
Original Agreement has changed or is required to be updated under the terms
of
the Original Agreement, such Schedules have been revised and updated with
current information and the same are hereto attached in revised and updated
form, to with the parties’ agree that the Schedules attached hereto shall be
treated as if originally made and incorporated into the Original Agreement.
3. Ratification
and Republication.
Except
as amended by this Amendment and all earlier amendments, the parties do hereby
ratify and republish the Original Agreement. To the extent any terms of this
Amendment and the December 8th Amendment are in conflict, the terms of this
Amendment shall control.”
4.
Incorporation
by Reference.
The
attachments to this Amendment referred to or included herein constitute an
integral part to this Amendment and are incorporated into this Amendment by
this
reference.
5.
Benefit.
All the
terms and provisions of this Amendment shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto, and their respective heirs,
executors, administrators, personal representatives, successors and permitted
assigns.
6.
Construction.
Words
of any gender used in this Amendment shall be held and construed to include
any
other gender, and words in the singular number shall be held to include the
plural, and vice versa, unless the context requires otherwise.
7.
Multiple
Counterparts.
This
Amendment may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
8.
Entire
Agreement.
This
Amendment and the Original Agreement and the Purchase Agreement, together with
the exhibits and schedules thereto, contain the entire understanding of the
parties with respect to the subject matter hereof, and may not be changed
orally, but only by an instrument in writing signed by the party against whom
enforcement of any waiver, change, modification, extension, or discharge is
sought. Without limiting the generality of the foregoing, in the event of any
of
conflict between this Amendment and the Original Agreement and the Purchase
Agreement, this Amendment shall control.
IN
WITNESS WHEREOF, each of the parties hereto has duly executed and delivered
this
Agreement as of the ___ day of February, 2007.
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CHARYS
HOLDING COMPANY, INC.
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By
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Xxxxx
X. Xxx, Xx., Chief Executive Officer
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C&B/COTTON
HOLDINGS, INC
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By
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Xxxx
Crochet, President
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CROCHET
& BOREL SERVICES, INC
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By
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Xxxx
Crochet, President
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COTTON
HOLDINGS 1, INC
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By
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Xxxxx
Xxxx, President
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COTTON
COMMERCIAL USA, LP
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By
Cotton USA GP, LLC, its sole general partner
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By
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Xxxxx
Xxxx, President
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COTTON
RESTORATION OF CENTRAL TEXAS, LP
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By
CCI-GP, LLC, its sole general partner
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By
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Xxxxx
Xxxx, President
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SELLER:
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SELLER:
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XXXX
XXXXXXX
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XXXXX
XXXXXXXX
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SELLER:
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SELLER:
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XXXXX
XXXXXXXXX
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XXXXX
XXXXXX
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SELLER:
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SELLER:
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XXXXXXX
XXXXXXXX
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XXXXX
XXXX
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SELLER:
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SELLER:
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XXXXX
XXXXXXX
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XXXXXXX
XXXXX
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SELLER:
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XXXXXX
XXXXXXXXX
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