FIRST AMENDMENT TO UNIT PURCHASE AGREEMENT
EXHIBIT
2.3
FIRST
AMENDMENT TO UNIT PURCHASE AGREEMENT
This
FIRST AMENDMENT TO UNIT PURCHASE AGREEMENT (this “Amendment”),
dated
as of September 30, 2005, is among Pick-N-Pull Auto Dismantlers, a California
general partnership (“PNP”),
PNP
Commercial Acquisition, LLC, a Delaware limited liability company and a
wholly-owned subsidiary of Norprop, Inc., one of the general partners of PNP
(“Buyer”),
and
Tree Acquisition, L.P., a Delaware limited partnership (“Tree”).
RECITALS:
A. A
Unit
Purchase Agreement (the “Unit
Purchase Agreement”)
was
entered into on August 5, 2005 by and among PNP, Buyer and Tree which provides
for, among other things, the purchase by Buyer of One Hundred Percent (100%)
of
the Units of membership interests of Xxxxxxxxx Auto Recyclers, LLC, a Delaware
limited liability company (the “Company”).
B. The
parties hereto now desire to amend the Unit Purchase Agreement as provided
herein.
NOW,
THEREFORE,
in
consideration of the premises herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto hereby agree as follows:
ARTICLE
I
DEFINITIONS
1.1 Definitions.
Capitalized terms used in this Amendment, to the extent not otherwise defined
herein, shall have the same meanings as in the Unit Purchase Agreement, as
amended hereby.
ARTICLE
II
AMENDMENTS
2.1 The
Unit
Purchase Agreement is hereby further amended by deleting therefrom Section 2.1
(Amount
of the Purchase Price)
in its
entirety, and by substituting, in lieu thereof, the following:
“2.1
Amount
of the Purchase Price.
As
consideration for the Units (the “Purchase Price”), Buyer agrees, subject to the
terms, conditions and limitations set forth in this Agreement to pay to or
for
the account of Tree at the Closing the amount in cash set forth in
Section E of Exhibit A (as amended per the terms thereof) attached
hereto (the “Closing Cash Consideration”) and to deliver in cash an amount equal
to Two Million Five Hundred Thousand Dollars (U.S. $2,500,000), which shall
be
held, together with the Xxxxxxx Money Deposit
described
in Section 2.2 below (such funds, the “Escrow Funds”) by Commerce Bank,
N.A. (the “Escrow Agent”) pursuant to the Escrow Agreement of even date herewith
by and among Buyer, Tree and the Escrow Agent, as amended by the Amended and
Restated Escrow Agreement by and among Buyer, Tree and the Escrow Agent, in
form
and substance as set forth in Exhibit F (the “Escrow Agreement”).”
Exhibit
F
to the
Unit Purchase Agreement is appended as Schedule II to this
Amendment.
2.2 The
Unit
Purchase Agreement is hereby amended by adding thereto a new Section 2.3 which
shall read in its entirety as follows:
“2.3
Escrow
for Retained Claims.
At the
Closing, Buyer shall deliver Nine Hundred Thousand Dollars (U.S. $900,000)
(the
“Retained Claims Escrow Funds”) to the Escrow Agent pursuant to the Escrow
Agreement by and among Buyer, Tree and the Escrow Agent in the form of
Exhibit
G
attached
hereto (the “Retained Claims Escrow Agreement”).”
Exhibit G
to the
Unit Purchase Agreement is appended as Schedule III
to this
Amendment.
2.3 The
Unit
Purchase Agreement is hereby further amended by deleting therefrom Section 3.2.3
in its
entirety, and by substituting, in lieu thereof, the following:
“3.2.3 Tree
shall execute and deliver to Buyer an Assignment of the Units of membership
interests of Xxxxxxxxx Auto Recyclers, LLC, in a form agreed to by the parties
to this Agreement.”
2.4 The
Unit
Purchase Agreement is hereby further amended by deleting therefrom Section
3.2.4
in its
entirety, and by substituting, in lieu thereof, the following:
“PNP
or
Buyer shall pay by wire transfer (a) to Tree the Closing Cash Consideration;
(b)
to the Escrow Agent (i) the balance of the Escrow Funds, and (ii) the Retained
Claims Escrow Funds; and (c) to the Creditors the Debt Payoffs.”
2.5 The
Unit
Purchase Agreement is hereby further amended by deleting therefrom Section
3.2.5
in its
entirety, and by substituting, in lieu thereof, the following:
“PNP,
Buyer, Tree and the Escrow Agent shall execute and deliver cross receipts
acknowledging receipt from the other, respectively, of the Units, the Cash
Consideration, the Escrow Funds and the Retained Claims Escrow
Funds.”
2.6 The
Unit
Purchase Agreement is hereby further amended by deleting from Section 3.3.1
(Preparation
of Closing Financial Statements.)
thereof the reference therein to the dollar amount “$20,859,737”, and by
substituting, in lieu thereof, a reference to the dollar amount
“20,359,737”.
2
2.7 The
Unit
Purchase Agreement is hereby further amended by deleting from Section 3.3.4
(Post-Closing
Adjustment Payments.)
thereof each of the four (4) references therein to the dollar amount
“20,859,737”, and by substituting, in the instance of each of such four (4)
deletions, a reference to the dollar amount “20,359,737”.
2.8 The
Unit
Purchase Agreement is hereby further amended by deleting from Section
3.4
(Potential
Replenishment/Release of Escrow Funds)
thereof
each of the four references to the dollar amount of “$3,500,000,” and by
substituting, in lieu thereof, a reference to the dollar amount of
$3,000,000.”
2.9 The
Unit
Purchase Agreement is hereby further amended by adding thereto a new
Section
3.5
which
shall read in its entirety as follows:
“3.5
Retained Claims.
Any
provision of this Agreement to the contrary notwithstanding, the parties hereto
hereby expressly acknowledge and agree that, with respect to any and all claims
relating to the following matters, Tree shall, on and after the Closing Date,
have ownership of and sole responsibility for and shall indemnify, defend and
hold harmless the Buyer Indemnified Parties from, against, for and in respect
of, and Tree waives any claim for contribution or indemnity against any of
them
with respect to, any and all Damages incurred or suffered by any of them by
reason of, resulting from, based upon or arising out of: (i) that certain letter
agreement dated November 23, 2004 by and between the Company and Triangle
Capital LLC, including, without limitation, the dispute between the Company
and
Triangle Capital LLC described in paragraph four (4) of Section
4.5
of the
Disclosure Schedule; (ii) that certain letter agreement dated February 16,
2005
by and between the Company and Glenthorne Capital Inc., including, without
limitation, the dispute between the Company and Glenthorne Capital Inc.
described in paragraph three (3) of Section
4.5
of the
Disclosure Schedule; and (iii) the Company’s dispute with SBC Global Services,
Inc. (“SBC”) as described in paragraph one (1) of Section
4.5
of the
Disclosure Schedule, but not including any amounts payable by the Company to
SBC
for services provided by SBC following the Closing (the claims referred to
in
clauses (i), (ii) and (iii) above are collectively hereinafter referred to
as
the “Retained
Claims”).
Tree
hereby expressly covenants and agrees, on and after the Closing Date,
to discharge, on behalf of the Company, all obligations of the Company
relating to the Retained Claims upon the final resolution of such Retained
Claims. The parties hereto expressly acknowledge and agree that the obligations
of Tree as set forth in this Section
3.5
are
independent of and in addition to the obligations arising pursuant to Section
9.1 of the Unit Purchase Agreement and the Escrow Agreement.”
2.10 The
Unit
Purchase Agreement is hereby further amended by deleting in its entirety
Section
6.17
(Distribution
of Proceeds)
thereof.
2.11 The
Unit
Purchase Agreement is hereby further amended by deleting from Section
6.18
(Woodinville,
Washington Condemnation Proceedings)
thereof
the reference to the dollar amount of “$3,500,000,” and by substituting, in lieu
thereof, a reference to the dollar amount of $3,000,000.”
3
2.12 The
Unit
Purchase Agreement is hereby further amended by adding thereto a new
Section 6.24
which
shall read in its entirety as follows:
“6.24 Tax
Clearance Certificates.
Tree
hereby covenants and agrees to use its best efforts to obtain, following the
Closing, all Tax clearance certificates required for such jurisdictions where
the Company may be liable for Taxes as are set forth on Section 6.24
of the
Disclosure Schedule.”
2.13 The
Unit
Purchase Agreement is hereby further amended by deleting from Section 7.7
(Additional
Closing Documents)
thereof, the following clause: “(i) all Tax clearance certificates required
for any jurisdiction where the Company may be liable for Taxes”, and
substituting, in lieu thereof, the following:
“(i) all
Tax
clearance certificates required for such jurisdictions where the Company is
liable for Taxes as are set forth on Section 7.7(i)
of the
Disclosure Schedule.”
2.14 The
Unit
Purchase Agreement is hereby further amended by deleting therefrom Section
7.12
in its entirety, and by substituting, in lieu thereof, the
following:
“7.12
Escrow
Agreements.
Tree,
Buyer and the Escrow Agent shall have executed the Escrow Agreement, in form
and
substance as set forth in Exhibit
D,
as
amended by the Amended and Restated Escrow Agreement, in form and substance
as
set forth in Exhibit
F,
and the
Retained Claims Escrow Agreement, in form and substance as set forth in
Exhibit
G.”
2.15 The
Unit
Purchase Agreement is hereby further amended by deleting in its entirety
Section
7.20
(SBC
Claim)
thereof.
2.16 The
Unit
Purchase Agreement is hereby further amended by deleting from Section
9.1
(Indemnification by Tree) thereof the word “and” appearing immediately prior to
clause (vi) of such section, by deleting the period at the end of such section
and by adding to Section
9.1,
following clause (vi) thereof, the following clause:
“;
(vii)
any failure by Tree to take responsibility for and discharge or otherwise
satisfy any and all liabilities associated with the Retained Claims; and (viii)
the claim by Xxxxxxxx Holdings LLC that the Company’s actions caused mold growth
at the property located at 00000 Xxxxxx Xxxx Xxxx, Xxxxx Xxx Xxxxxxxx, Xxxxxxxx,
as described in paragraph five (5) of Section
4.5
of the
Disclosure Schedule, but only to the extent that the Damages incurred by the
Buyer Indemnified Parties in connection therewith exceed $50,000.”
2.17 The
Unit
Purchase Agreement is hereby further amended by deleting therefrom Section
8.8
in its entirety, and by substituting, in lieu thereof, the
following:
“8.8
Escrow
Agreements.
Tree,
Buyer and the Escrow Agent shall have executed the Escrow Agreement, as amended
by the Amended and Restated Escrow Agreement, and the Retained Claims Escrow
Agreement.”
4
2.18 The
Unit
Purchase Agreement is hereby further amended by adding to Section
9.6
(Limitations on Indemnity) thereof a new subsection 9.6.3 which shall read
in
its entirety as follows:
“9.6.3 Any
provision of this Agreement to the contrary notwithstanding, the provisions
of
clause (vii) of Section
9.1
hereof
shall not be subject to any of the provisions of Section
9.6
of this
Agreement.”
2.19 The
Unit
Purchase Agreement is hereby further amended by effecting the following changes
to Exhibit A
(Closing
Date Payments) thereof: (i) deleting the reference therein to the dollar
amount “$16,207,954” appearing opposite the word “Creditors” appearing in
paragraph A of such Exhibit
A
and by
substituting, in lieu thereof, a reference to the dollar amount “$16,290,412”;
(ii) deleting the reference therein to the dollar amount “7,111,168” opposite
the word “Chatham (a)” appearing in paragraph A of such Exhibit
A
and by
substituting, in lieu thereof, a reference to the dollar amount “$7,111,037”;
(iii) deleting the reference “(a)” next to the word “Chatham” appearing in
paragraph A of such Exhibit
A;
(iv)
deleting the reference therein to the dollar amount “$9,096,785” opposite the
phrase “Summit (a)” appearing in paragraph A of such Exhibit
A
and by
substituting, in lieu thereof, a reference to the dollar amount “$9,179,375”;
(v) deleting the reference “(a)” next to the word “Summit” appearing in
paragraph A of such Exhibit
A;
(vi)
deleting the reference therein to the dollar amount “$4,500,000” opposite the
word “Escrow” appearing in paragraph B of such Exhibit A
and by
substituting, in lieu thereof, a reference to the dollar amount “$4,000,000”;
(vii) deleting the reference therein to the dollar amount “$3,000,000”
opposite the phrase “Balance of Funds” appearing in paragraph B of such
Exhibit A
and by
substituting, in lieu thereof, a reference to the dollar amount “$2,500,000”;
(viii) adding a new line “1/2 Fees” after the phrase “Balance of Funds” in
paragraph B of Exhibit
A
and
including the dollar amount “$1,500” opposite that phrase; (ix) adding a
new paragraph C to Exhibit
A
referencing the “Retained Claims Escrow” and including the dollar amount
“$900,000” opposite that phrase; (x) adding a new line “1/2 Fees” after the
phrase “Retained Claims Escrow” in paragraph C to such Exhibit
A
and
including the dollar amount “$250” oppose that phrase; (xi) deleting the
reference “(b)” next to the phrase “Reps & Warrants Ins” appearing in
paragraph C of such Exhibit
A;
(xii)
deleting the reference therein to paragraph C before the phrase “Reps &
Warrants Ins” and by substituting, in lieu thereof, a reference to paragraph D;
(xiii) deleting the reference therein to paragraph D before the phrase “Closing
Cash Consideration” and by substituting, in lieu thereof, a reference to
paragraph E of such Exhibit
A;
(xiv)
adding a reference “1/2” before the phrase “Reps & Warrants Ins” in
paragraph D of such Exhibit
A;
(xv)
deleting the reference therein to the dollar amount “$350,000” opposite the
phrase “Reps & Warrants Ins” and by substituting, in lieu thereof, a
reference to the dollar amount “$270,562.50”; (xvi) deleting the reference
therein to the dollar amount “$2,442,046” opposite the phrase “Closing Cash
Consideration” appearing in paragraph E of such Exhibit A
and by
substituting, in lieu thereof, a reference to the dollar amount “$1,037,275.50”;
and (xvii) deleting the reference therein to the dollar amount
“$23,500,000” opposite the phrase “TOTAL” appearing immediately following
paragraph E of such Exhibit A
and by
substituting, in lieu thereof, a reference to the dollar amount
“$22,500,000”.
5
The
changes to Exhibit A
as
identified in this Section 2.7
of this
Amendment are reflected in a new Exhibit A
to the
Unit Purchase Agreement which is appended as Schedule I
to this
Amendment.
2.20 The
Unit
Purchase Agreement is hereby further amended by deleting from Section
10.8
(Notices.)
thereof
the reference to “Tree Acquisition Management, 000 Xxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxx, Xxxxx, 00000, Attn: Xx. Xxxxx Xxxxxx, Fax: (000) 000-0000” immediately
after the phrase “If to Tree:” and by substituting, in lieu thereof, the
following:
“Tree
Acquisition, L.P.
X.X.
Xxx
000000
Xxxxxxxxx,
XX 00000
Attention:
Xx. Xxxxx Xxxxxx
Facsimile:
(000) 000-0000”
ARTICLE
III
RATIFICATION
3.1 Ratification.
The
terms and provisions set forth in this Amendment shall modify and supersede
all
inconsistent terms and provisions set forth in the Unit Purchase Agreement
and
except as expressly modified and superseded by this Amendment, the terms and
provisions of the Unit Purchase Agreement are hereby ratified and confirmed
and
shall continue in full force and effect. The parties hereto hereby agree that
the Unit Purchase Agreement, as amended hereby, shall continue to be legal,
valid, binding and enforceable in accordance with its terms.
ARTICLE
IV
GENERAL
PROVISIONS
4.1 APPLICABLE
LAW.
THIS
AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF TEXAS APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY
THEREIN.
4.2 SUCCESSORS
AND ASSIGNS.
This
Amendment is binding upon and shall inure to the benefit of the parties hereto
and their respective successors and assigns, and none of the parties hereto
shall assign or transfer any of its rights or obligations hereunder without
the
prior written consent of the other parties hereto.
4.3 COUNTERPARTS;
ENTIRE AGREEMENT.
This
Amendment may be executed in any number of counterparts, each of which shall
be
an original, with the same effect as if the signatures hereto were upon the
same
instrument. This Amendment shall not be effective unless and until all of the
parties hereto have each executed and delivered a counterpart hereof. This
Amendment constitutes the entire agreement and understanding among the parties
hereto and supersedes any and all prior agreements and understandings, oral
or
written, relating to the subject matter hereof.
6
4.4 HEADINGS.
The
headings, captions, and arrangements used in this Amendment are for convenience
only and shall not affect the interpretation of this Amendment.
[The
remainder of this page is intentionally left blank.]
7
IN
WITNESS WHEREOF,
the
parties hereto have caused this Amendment to be duly executed by their
respective duly authorized officers as of the day and year first above
written.
|
PNP
COMMERCIAL ACQUISITION, LLC,
a
Delaware limited liability company
|
||
| |
|
|
| By: | /s/ Xxx Xxxxxx | |
|
Name:
Xxx Xxxxxx
Title:
President
|
||
|
PICK-N-PULL
AUTO DISMANTLERS,
a
California general partnership
|
||
| |
|
|
| By: | Norprop, Inc., an Oregon corporation and a general partner | |
| By: | /s/ Xxxxx X. Xxxx | |
|
Name:
Xxxxx X. Xxxx
Title:
Vice President
|
||
|
TREE
ACQUISITION, L.P.,
a
Delaware limited partnership
|
||
| |
|
|
| By: | Tree
Acquisition Management, Inc.,
a
Delaware corporation and its general
partner
|
|
| By: | /s/ Xxxxx Xxxxxx | |
|
Name:
Xxxxx Xxxxxx
Title:
Vice President
|
||
8
SCHEDULE
I
to
Amendment
EXHIBIT A
CLOSING
DATE PAYMENTS
|
A
|
Creditors
|
16,290,412
|
|
|
Chatham
|
7,111,037
|
||
|
Summit
|
9,179,375
|
||
|
B
|
Escrow
|
4,000,000
|
|
|
Xxxxxxx
Money
|
1,500,000
|
||
|
Balance
of Funds
|
2,500,000
|
||
|
½
Fees
|
1,500
|
||
|
C
D
|
Retained
Claims Escrow
½
Fees
½
Reps & Warrants Ins
|
900,000
250
270,562.50
|
|
|
E
|
Closing
Cash Consideration
|
1,037,275.50
|
|
|
TOTAL
|
22,500,000
|
