AMENDMENT NO. 1 TO THE ASSET PURCHASE AGREEMENT
Exhibit
2.2
AMENDMENT
NO. 1 TO THE ASSET PURCHASE AGREEMENT
AMENDMENT NO. 1, dated June 11, 2009
(this “Amendment”) to
the ASSET PURCHASE AGREEMENT (the “Purchase Agreement”), dated as
of May 29, 2009, by and among Xxxxxx International, Inc, a Maryland corporation
(“Xxxxxx”), the Sellers
set forth on the signature page thereto (collectively with Xxxxxx, the “Sellers”) and Xxxxxx America
LLC, a Delaware limited liability company (“Buyer”).
RECITALS
WHEREAS, capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to such terms in the
Purchase Agreement; and
WHEREAS, the parties to the Purchase
Agreement have determined that it is advisable to amend the Purchase Agreement;
and
WHEREAS, Section 13.4 of the
Purchase Agreement provides that the Purchase Agreement may be amended by
execution of a written instrument executed by the parties thereto.
NOW, THEREFORE, in consideration of the
foregoing premises, and the agreements, covenants, representations and
warranties contained in the Purchase Agreement and herein, and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged and accepted, the parties, intending to be legally bound, hereby
agree as follows:
1.
Section 1.1.5 of the Purchase Agreement is
hereby amended by amending and restating such section in its entirety so that,
as amended and restated, it shall read as follows:
1.1.5
Certain
Insurance Policies. The insurance policies relating to the
Purchased Assets or the operation of the Business set forth in Section 1.1.5 of the Disclosure
Letter (the “Assumed
Insurance”), which Section shall be updated by Seller and Buyer no
later than two (2) business days prior to the Bid Deadline (as defined in the
Bidding Procedures Order), except any recoveries or refunds thereunder with
respect to actions or occurrences prior to the Closing Date.
2.
Section 1.1.12 of the Purchase Agreement is
hereby amended by amending and restating such section in its entirety so that,
as amended and restated, it shall read as follows:
1.1.12
Certain Benefit
Plans. The Benefit Plans and Benefit Arrangements of Sellers
set forth in Section 1.1.12 of
the Disclosure Letter, which Section shall be
updated by Seller and Buyer no later than two (2) business days prior to
the Bid Deadline (as defined in the Bidding Procedures
Order).
3.
Section 1.3.1 of the Purchase Agreement is
hereby amended by amending and restating such section in its entirety so that,
as amended and restated, it shall read as follows:
1.3.1
No later than the date hereof, Sellers shall have delivered to Buyer a
true, correct and complete list of all Executory Contracts related to the
Purchased Assets or otherwise used in connection with the Business (the “Executory Contract List”), including the
monetary amounts that must be paid and nonmonetary obligations that otherwise
must be satisfied, including pursuant to Section 365(b)(1)(A) and (B) of the
Bankruptcy Code, in order for Buyer to assume Sellers’ Executory Contracts
pursuant to this Agreement (“Undisputed Cure Costs”). The
Executory Contract List shall include Sellers’ Undisputed Cure Costs and such
other commercial information related to the Executory Contracts listed thereon
as shall be reasonably requested by Buyer. As used herein, the term “Executory Contract” shall mean
any Contract that is “executory” and any Other Leases and Real Property Leases
that are “unexpired” as such terms are used in section 365 of the Bankruptcy
Code.
4.
Section 4.3.9 of the Purchase Agreement
is hereby amended by amending and restating such section in its entirety so
that, as amended and restated, it shall read as follows:
4.3.9
by Buyer, if the Order, substantially in the form attached hereto as Exhibit “H” (the “Bidding Procedures Order”)
shall not have been entered by the Bankruptcy Court on or before June 12,
2009;
5.
Exhibit “H” of the Purchase Agreement, the
Bidding Procedures Order, is hereby amended by amending and restating such
exhibit in its entirety so that, as amended and restated, it shall read as set
forth in Annex
A attached hereto.
6.
Exhibit “I” of the Purchase Agreement, the
Bidding Procedures, is hereby amended by amending and restating such exhibit in
its entirety so that, as amended and restated, it shall read as set forth in
Annex B
attached hereto.
7.
Except as specifically amended hereby, the
terms and provisions of the Purchase Agreement shall continue and remain in full
force and effect and the valid and binding obligation of the parties thereto in
accordance with its terms. All references in the Purchase Agreement (and
in any other agreements, documents and instruments entered into in connection
therewith) to the “Purchase Agreement” shall be deemed for all purposes to refer
to the Purchase Agreement, as amended by this Amendment.
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8.
Notwithstanding anything in the Purchase
Agreement to the contrary, all references in the Purchase Agreement (and in any
other agreements, documents and instruments entered into in connection
therewith) to the “Disclosure Letter” shall for all purposes be deemed to refer
to the Disclosure Letter, as supplemented and amended by that certain
Supplemental Disclosure Letter of Sellers dated June 11, 2009 (the “Supplemental
Disclosure Letter”). Buyer waives any and all claims it may have regarding
the failure to disclose the matters supplemented or amended in the Supplemental
Disclosure Letter prior to the date hereof.
9. This
Amendment may be signed in counterparts. The parties further agree
that this Amendment may be executed by the exchange of facsimile signature pages
provided that by doing so the parties agree to undertake to provide original
signatures as soon thereafter as reasonable in the circumstances.
10. This
Amendment shall be governed by and construed in accordance with the laws of the
State of Delaware without regard to any conflicts of laws
principles.
[SIGNATURE
PAGE FOLLOWS]
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IN WITNESS WHEREOF, Buyer and
Sellers have executed this Amendment as of the day and year first above
written.
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BUYER:
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XXXXXX
AMERICA LLC
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By: /s/ D. Xxxxxxx
Xxxxxxxx
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Name: D.
Xxxxxxx Xxxxxxxx
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Title:
President
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SELLERS:
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XXXXXX
INTERNATIONAL, INC.
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By: /s/ Xxxxxx
Xxxxxxxx
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Name: Xxxxxx
Xxxxxxxx
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Title:
President
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XXXXXX
SERVICES INTERNATIONAL, INC.
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By: /s/ Xxxxxx
Xxxxxxxx
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Name: Xxxxxx
Xxxxxxxx
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Title:
President
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XXXXXX
SERVICE GROUP, INC.
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By: /s/ Xxxxxx
Xxxxxxxx
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Name: Xxxxxx
Xxxxxxxx
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Title:
President
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XXXXXX
OF NEW JERSEY REALTY CORP.
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By: /s/ Xxxxxx
Xxxxxxxx
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Name: Xxxxxx
Xxxxxxxx
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Title:
President
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XXXXXX
TELECOM, INC.
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By: /s/ Xxxxxx
Xxxxxxxx
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Name: Xxxxxx
Xxxxxxxx
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Title:
President
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XXXXXX
UTILITY SERVICE, INC.
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By: /s/ Xxxxxx
Xxxxxxxx
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Name: Xxxxxx
Xxxxxxxx
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Title:
President
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XXXXXX
SERVICES, INC.
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By: /s/ Xxxxxx
Xxxxxxxx
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Name: Xxxxxx
Xxxxxxxx
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Title:
President
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XXXXXX
RESOURCES, LLC
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By: /s/ Xxxxxx
Xxxxxxxx
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Name: Xxxxxx
Xxxxxxxx
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Title:
President
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Annex
A
[BIDDING PROCEDURES
XXXXX]
X- 0
Annex
B
[BIDDING
PROCEDURES]
B-1
