AMENDMENT
TO
ASSET PURCHASE AGREEMENT
THIS AMENDMENT TO ASSET PURCHASE AGREEMENT is made and entered into as
of the 29th day of December, 1996, by and among Transit Homes of America, Inc.,
an Idaho corporation ("Seller"); Cambridge Management Company, Inc., an Idaho
corporation ("Cambridge"); and Xxxxxx Drive Away, Inc., an Indiana corporation
("Purchaser") and is joined in by Xxxxx X. Xxxxx, as landlord under the
Related-Party Leases ("Landlord"), for the purposes hereinafter set forth.
RECITALS
A. Seller, Cambridge, and Purchaser have heretofore entered into an
Asset Purchase Agreement dated November 18, 1996 (the "Asset Purchase
Agreement").
B. In connection therewith, Xxxxxx has agreed to enter into leases (the
"Related-Party Leases") of Facilities located at 000 Xxxxx Xxxx Xxxx, Xxxxx,
Xxxxx (the "Nampa Facility"), at 00000 Xxxxxx Xxxx 0, Xxxxx Xxxxxxx 00,
Xxxxxxxxxx, Xxxxxxx (the "Middlebury Facility"), and at 0000 Xxxxxx Xxxx, X.X.,
Xxxxxxxxxxx, Xxxxxx (the "Millersburg Facility") (each a "Related-Party
Facility" and together the "Related-Party Facilities").
C. In anticipation of and in order to facilitate the Closing of the
transactions contemplated by the Asset Purchase Agreement, the parties wish to
amend the Asset Purchase Agreement in certain respects as set forth below.
NOW, THEREFORE, in consideration of the premises and the mutual
promises of the parties herein contained, and other good and valuation
consideration the receipt and sufficiency of which are hereby acknowledged, the
parties intending to be legally bound hereby agree as follows:
1. Definition. Except as otherwise provided herein,
capitalized terms used in this Amendment have the same meanings
ascribed to them in the Asset Purchase Agreement.
2. Related-Party Leases; Environmental Assessments.
2.01 Nampa. The parties acknowledge that the Nampa Facility was
inadvertently omitted from Schedule 5.12 to the Asset Purchase Agreement and
that, as a result, no environmental survey has been performed with respect to
the Nampa Facility. Accordingly, notwithstanding any contrary provision of the
Asset Purchase Agreement, Purchaser shall be entitled to obtain, at Purchaser's
expense (except to the extent of $1,350, which Landlord agrees to pay to
Purchaser to defray a portion of such expense), such environmental survey/site
assessment as Purchaser deems appropriate
with respect to the Nampa Facility. If Purchaser is not reasonably satisfied
with the results thereof due to the presence at the Nampa Facility or a nearby
property of a Recognized Environmental Condition, then Purchaser shall be
entitled to terminate the Related-Party Lease for the Nampa Facility upon thirty
(30) days' written notice to the landlord thereunder, which notice, in order to
be effective, shall be given not later than January 31, 1997.
2.02 Middlebury and Millersburg. With respect to the Middlebury
Facility and the Millersburg Facility, the Environmental Assessment Report of
XXXXX International Incorporated (the "XXXXX Report") and Purchaser's inquiries
have raised concerns about the possibility of environmental contamination of the
Middlebury Facility and the Millersburg Facility from conditions or activities
at nearby properties. In order to induce Purchaser to enter into the leases for
the Related-Party Facilities, Landlord hereby represents and Warrants to Xxxxxx
as follows:
(a) (i) To Landlord's knowledge, as of the date hereof, there
are no Hazardous Substances present at, under or on any of the Related-Party
Facilities; (ii) except as expressly authorized by an effective permit or by
applicable law, Landlord has not caused, permitted or suffered to occur, and to
Landlord's knowledge there has not been, any release, discharge, disposal or
emission, or any threat of release, discharge, disposal or emission, of any
Hazardous Substance into, onto, under, at or from any of the Related-Party
Facilities.
(b) Landlord has not conducted, engaged in, or permitted
others to conduct or engage in, any business, operation or activity on or at any
of the Related-Party Facilities involving the use, manufacture, treatment,
storage or disposal of any Hazardous Substance, other than the use, storage, and
disposal of petroleum products or solvents in the ordinary course of business
and in a manner that complies in all material respects with all Environmental
Laws.
(c) Landlord is in full compliance with all Environmental Laws
with respect to the Related-Party Facilities. Without limiting the generality of
the foregoing, Landlord is in compliance with respect to the Related-Party
Facilities with all laws, rules and regulations relating to (i) releases,
discharges, emissions or disposals to air, water, land or ground water; (ii) the
use, manufacture, importing, handling or disposal of Hazardous Substances; (iii)
the generation, treatment, storage, transportation, disposal or other management
of Hazardous Substances; (iv) the exposure of persons to Hazardous Substances;
and (v) all judicial and administrative orders, injunctions, judgments,
declarations, directive, notices, or demands with respect to the foregoing
matters.
(d) There are no underground storage tanks located at or under
any of the Related-Party Facilities or, to Landlord's knowledge, except as may
be disclosed in the XXXXX Report at or under any property adjacent to any of the
Related-party Facilities.
3. Other Leases; Environmental Assessments. With respect to the
Facility located at 0000 Xxxx Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxx (the "Phoenix
Facility") and the Facility located at Xxxxx #0, Xxxxxx, Xxxxx (the
"Belton/Xxxxxxxxxx Facility"), the XXXXX Report and Purchaser's inquiries have
raised concerns about the possibility of environmental contamination of the
Phoenix Facility and the Belton/Xxxxxxxxxx Facility which purchaser needs
additional time to investigate. Accordingly, notwithstanding any contrary
provision of the Asset Purchase Agreement, Purchaser shall have the right in its
sole and absolute discretion, exercisable by written notice to Seller given at
any time on or before January 15, 1997, to exclude the leases for either or both
such Facilities from the list of Assumed Facility Leases, effective as of the
Closing Date.
4. Nondisturbance Agreements. Landlord has advised Purchaser that (i)
Landlord's ownership of the Millersburg Facility is subject to the operation and
effect of a Real Estate Sale Contract dated August 25, 1995, with Palm Harbor
Homes, Inc. ("Palm Harbor"); (ii) the Nampa Facility is subject to the lien of a
deed of trust; and (iii) the Middlebury Facility is subject to the lien of a
deed of trust, each of which is or may be superior to the operation and effect
of the Related-Party Lease for such Facility. In order to induce Purchaser to
enter into the Related-Party Lease for each such Facility, Landlord agrees to
use its reasonable best efforts to obtain a consent and nondisturbance agreement
in form and substance reasonably satisfactory to Purchaser to be executed and
delivered to Purchaser by Palm Harbor or the holder of the deed of trust, as the
case may be, not later than March 31, 1997, providing that Purchaser's peaceful
possession of such Facility will not be disturbed in the event of a default
under such Real Estate Sale Contract or deed of trust, as the case may be,
provided that Purchaser attorns to Palm Harbor or the holder of such deed of
trust (or its successor or assignee), as the case may be. Notwithstanding any
contrary provision of the applicable Related- Party Lease, Landlord's failure to
deliver any such consent and nondisturbance agreement shall constitute a default
under such Related-Party Lease which, if not cured within thirty (30) days after
written notice thereof from Purchaser, shall entitle Purchaser to terminate such
Related-Party Lease.
5. Asset Purchase Agreement Unimpaired. Except as set forth in this
Amendment, the provision of the Asset Purchase Agreement remain in full force
and effect.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day and year first above written.
ATTEST/WITNESS: TRANSIT HOMES OF AMERICA, INC.
By: /s/ Xxxxx Xxxxx (SEAL)
---------------------------- -------------------------------------
Xxxxx Xxxxx, President
CAMBRIDGE MANAGEMENT COMPANY, INC.
By: /s/ Xxxxx Xxxxx (SEAL)
---------------------------- -------------------------------------
Xxxxx Xxxxx, President
XXXXXX DRIVE AWAY, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx (SEAL)
---------------------------- -------------------------------------
Xxxxxxxx X. Xxxxxxx
President and CEO
XXXXX XXXXX joins in the execution of this Amendment as Landlord for
the purposes herein set forth.
/s/ Xxxxx Xxxxx
-------------------------------------
Xxxxx Xxxxx
