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1.
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Amendments.
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(a)
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Section
2.2(a)(ii) of the Asset Purchase Agreement is hereby deleted in its
entirety and replaced with the words "(ii)[Intentionally
Omitted]".
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(b)
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Section
3.1(a)(i)(D) of the Asset Purchase Agreement is hereby deleted in
its entirety and replaced with the words "(D) [Intentionally Omitted]
minus".
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(c)
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Section 3.1(c)
of the Asset Purchase Agreement is hereby amended so that the words "the
Cure Payments and the Section 2.2(a)(ii) Liabilities" are replaced with
the words "and the Cure Payments".
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(d)
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Section 3.1(d)
of the Asset Purchase Agreement is hereby amended so that the words "the
Cure Payments and the Section 2.2(a)(ii) Liabilities" are replaced with
the words "and the Cure Payments".
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(e)
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Section 3.1(e)
of the Asset Purchase Agreement is hereby amended so that, each time they
appear, the words "the Cure Payments and the Section 2.2(a)(ii)
Liabilities" are replaced with the words "and the Cure
Payments".
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(f)
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Section
8.2(c)(i) of the Asset Purchase Agreement is hereby amended so that
the value "$1,250,000" is replaced with the value
"$750,000".
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(g)
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Section
8.2(c)(ii) of the Asset Purchase Agreement is hereby amended so
that the value "$1,750,000" is replaced with the value
"$1,000,000".
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(h)
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Section
8.2(c)(vii)(A)(1)(b) of the Asset Purchase Agreement is hereby
amended so that the value "$1,500,000" is replaced with the value
"$1,000,000".
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(i)
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Section 13.10
of the Asset Purchase Agreement is hereby amended so that the following
sentence is inserted immediately after the conclusion of the first
sentence thereof:
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"Except
for provisions in this Agreement as to Cure Payments and as to indemnity,
reimbursement or proration obligations of Sellers to Purchaser, nothing in
this Agreement shall elevate the bankruptcy priority of the Claim of any
creditor in the Chapter 11 Cases (other than Purchaser to the extent
provided in this Agreement) so as to require payment by Sellers to any
such other creditor in the Chapter 11 Cases of more than the amount
otherwise payable to such other creditor through the Chapter 11 Cases,
absent this Agreement."
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(j)
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Section
8.2(c)(iii) of the Asset Purchase Agreement is hereby amended and
restated in its entirety to read as
follows:
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"That
Sellers are authorized without further Bankruptcy Court action to pay any
amounts that become due and payable to Purchaser pursuant to this
Agreement (including, without limitation, the Breakup Fee and Expense
Reimbursement). Any such amounts shall, pursuant to Section
364(c)(1) of the Bankruptcy Code, constitute a super-priority
administrative expense in Sellers' Chapter 11 Cases with priority over all
administrative expenses of the kind specified in section 503(b) or 507(a)
of the Bankruptcy Code. Upon the consummation of any
Acquisition Proposal (whether pursuant to a plan of reorganization or
otherwise), the Expense Reimbursement and Breakup Fee shall be payable
from the proceeds received by Sellers prior to any distribution thereof to
Sellers' secured lenders. Upon a termination of the Agreement
in a situation where the Sellers’ secured lenders (or any of them) have
directly or indirectly objected to the entry of the Sale Order, the
Expense Reimbursement shall be payable from the first proceeds to be
distributed to such objecting secured lender(s) prior to any distribution
thereof to such secured lender(s)."
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(k)
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Section 11.2(c)
of the Asset Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
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"Sellers'
obligation to pay the Breakup Fee and the Expense Reimbursement pursuant
to this Section 11.2
shall survive termination of this Agreement. Sellers are
authorized without further Bankruptcy Court action to pay any amounts that
become due and payable to Purchaser pursuant to this Agreement (including,
without limitation, the Breakup Fee and Expense
Reimbursement). Any such amounts shall, pursuant to Section
364(c)(1) of the Bankruptcy Code, constitute a super-priority
administrative expense in Sellers' Chapter 11 Cases with priority over all
administrative expenses of the kind specified in section 503(b) or 507(a)
of the Bankruptcy Code. In addition, upon the consummation of
any Acquisition Proposal (whether pursuant to a plan of reorganization or
otherwise), the Expense Reimbursement and Breakup Fee shall be payable
from the proceeds received by Sellers prior to any distribution thereof to
Sellers' secured lenders. Upon a termination of the Agreement
in a situation where the Sellers’ secured lenders (or any of them) have
directly or indirectly objected to the entry of the Sale Order, the
Expense Reimbursement shall be payable from the first proceeds to be
distributed to such objecting secured lender(s) prior to any distribution
thereof to such secured lender(s)."
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(l)
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Exhibit A to
the Asset Purchase Agreement is hereby amended and restated in its
entirety to read as Exhibit A
attached hereto as Annex 1.
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(m)
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Section 10.3 of
the Asset Purchase Agreement is hereby amended so that the words "on or
prior to April 29, 2009" are
deleted.
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(n)
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The
Distribution of
Proceeds Schedule attached hereto as Annex 2 is
hereby attached to the Asset Purchase Agreement pursuant to Section 10.3
thereof as amended hereby.
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(o)
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Article III of
the Asset Purchase Agreement is hereby amended by adding the following new
Section
3.1(h) thereto:
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2.
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No Amendment of
Distribution of Proceeds Schedule without Consent. The
parties hereto acknowledge and agree that the formulas and allocations set
forth in the Distribution of Proceeds Schedule attached to the Asset
Purchase Agreement pursuant to Section 1(n) of this
Amendment cannot be revised hereafter in a manner which would reduce the
amount payable at Closing to Ableco or BofA, without the prior consent of
Ableco and BofA, respectively, in writing or on the record in the
Bankruptcy Court.
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3.
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Schedules. The
parties hereto acknowledge and agree that certain pages of Disclosure
Schedules that were attached to the Asset Purchase Agreement as filed with
the Bankruptcy Court on April 24, 2009, contained errors and/or omissions,
which such errors and omissions are reflected on the marked pages attached
hereto as Annex
3 (the "Incorrect
Schedules"). Although Sellers' have filed corrections to
the Incorrect Schedules with the Bankruptcy Court, for the avoidance of
doubt, the parties hereto acknowledge and agree that the pages attached
hereto as Annex
4 (the "Corrected
Schedules") represent the understanding and agreement of the
parties with respect to the preamble to the Disclosure Schedules as well
as Schedule
4.9 (Litigation, Orders), Schedule 4.12
(Taxes), Schedule 4.20
(Insurance) and Schedule 4.23
(Product Liability; Product
Warranty).
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4.
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Pre-Closing Audit
Observation Rights. BofA, Ableco and/or their respective
representatives shall have the right to observe the Pre-Closing Audit
described in Section 3.1(c)
of the Asset Purchase Agreement, at their sole cost and
expense. In addition, BofA shall have the right to deliver or
cause to be delivered to Purchaser an Objection Notice pursuant to Section 3.1(d)
of the Asset Purchase Agreement solely to the extent that the amount to be
deducted from the Cash Portion pursuant to Section
3.1(a)(i)(A) of the Asset Purchase Agreement (and as reflected in
the Purchase Price Calculation) exceeds the sum of (a) $750,000, deducted
in the aggregate as to Section
3.1(a)(i)(A)(x), (y) and (z) of the
Asset Purchase Agreement, plus (b) up to
an additional $4,244,000 deducted for 3.1(a)(i)(A)(x)
of the Asset Purchase Agreement.
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5.
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Full Force and
Effect. Except as expressly amended or modified hereby,
each term, provision, Exhibit and Schedules of the Asset Purchase
Agreement is hereby ratified and confirmed and will and does remain in
full force and effect.
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6.
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Governing
Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of Delaware (regardless of the
laws that might otherwise govern under applicable Delaware principles of
conflicts of law) as to all matters, including but not limited to matters
of validity, construction, effect, performance and
remedies.
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7.
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Counterparts. This
Amendment may be executed in one or more counterparts, all of which shall
constitute one and the same instrument. Any such counterpart,
to the extent delivered by means of Electronic Delivery shall be treated
in all manner and respects as an original executed counterpart and shall
be considered to have the same binding legal effect as if it were the
original signed version thereof delivered in person. At the
request of any party hereto, each other party hereto shall re-execute the
original form of this Amendment and deliver such form to all other
parties. No party hereto shall raise the use of Electronic
Delivery to deliver a signature or the fact that any signature or
agreement or instrument was transmitted or communicated through the use of
Electronic Delivery as a defense to the formation of a contract, and each
such party forever waives any such defense, except to the extent such
defense relates to lack of
authenticity.
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8.
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Descriptive
Headings. Descriptive headings of the Sections of this
Amendment are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions of this
Amendment.
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MONACO
COACH CORPORATION
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(on
behalf of itself and Sellers)
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By:
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/s/ Kay L.
Toolson
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Name:
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Kay
L. Toolson
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Its:
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Chairman
and Chief Executive Officer
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WORKHORSE
INTERNATIONAL HOLDING
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COMPANY
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By:
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/s/ James D.
Mahlo
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Name:
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James
D. Mahlo
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Its:
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Assistant
Secretary
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