Exhibit 2.2
AMENDMENT NO. 1
TO
ASSET PURCHASE AGREEMENT
AMENDMENT NO. 1, dated as of October 24, 2000, (this "Amendment"),
to the Asset Purchase Agreement, dated as of July 27, 2000 (the "Purchase
Agreement"), between TRANSAMERICA LEASING INC., a Delaware corporation
("Seller") and INTERPOOL, INC., a Delaware corporation ("Purchaser").
Capitalized terms not otherwise defined herein have the respective meanings
set forth in the Purchase Agreement.
W I T N E S S E T H :
WHEREAS, Seller and Purchaser desire to exercise their right
pursuant to Section 12.1 of the Purchase Agreement to amend the Purchase
Agreement as set forth below;
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereby agree
as follows:
1. (a) Amendment to Section 1.1 of the Purchase Agreement. Section 1.1 of
the Purchase Agreement is hereby amended by amending and restating clause
(b) of the definition of "Permitted Encumbrances" contained therein to read
as follows:
"(b) with respect to any Trailer, Domestic Container or
Chassis owned or leased by Seller or any of its
Subsidiaries, the lease (which constitutes a Contract)
related to such Trailer, Domestic Container or Chassis."
(b) Amendment to Section 7.2 of the Purchase Agreement. Section 7.2 of the
Purchase Agreement is hereby amended and restated in its entirety to read
as follows:
"7.2 Employment. (a) Effective as of the Closing Date,
Purchaser shall make an offer of employment to each
Business Employee selected by Purchaser in its sole
discretion, provided that, notwithstanding anything
contained herein to the contrary, no later than 5 days
prior to the Closing Date, Purchaser shall provide Seller
with a final list of the Business Employees to whom
Purchaser will make offers. To the extent that, as of the
Closing Date, Purchaser does not make or honor such
offers to any of the Business Employees set forth on
Purchaser's final offer list, Purchaser shall indemnify
and hold harmless Seller and its Affiliates for all
wages, salaries and other employee benefit costs payable
in the ordinary course of business consistent with past
practice incurred by Seller or its Affiliates in respect
of such Business Employees, during the period from the
date of delivery of the final list to Seller by Purchaser
(no less that 5 days prior to the Closing Date) through
and including the Closing Date (on the same basis as such
costs will be reimbursed to Seller by Purchaser for the
period between the Cut-Off Date and the Closing Date in
accordance with Section 2.7). Subject to Purchaser's
obligations under this Agreement, Purchaser's offers of
employment shall be on terms and conditions determined by
Purchaser. Notwithstanding anything contained herein to
the contrary, Purchaser's hiring procedures will comply
with Applicable Law. Purchaser's employment of those
Business Employees who accept offers of employment shall
be deemed to commence on the Closing Date. Those Business
Employees who have been offered employment by Purchaser
and who accept such offers of employment shall be
referred to herein as the "Transferred Employees," and
the parties hereto intend that there shall be continuity
of employment following the Closing with respect to all
Transferred Employees."
(c) Amendment to Article VI. The following Section 6.24 is added to Article
VI after Section 6.23:
"6.24 Retitling of Assets. Purchaser and Seller
acknowledge and agree that, as of the date hereof, Seller
is unable to deliver to Purchaser evidence of Seller's
title to certain Assets (the "Scheduled Assets") to be
listed in a writing to be delivered by Purchaser to
Seller within 15 Business Days after the Closing Date.
Purchaser and Seller agree that as soon as reasonably
practicable after the Closing Date, and for 180 days
thereafter, they will use commercially reasonable efforts
to cause the Scheduled Assets to be retitled in
Purchaser's (or its designee's) name (including without
limitation the granting by Seller to Purchaser of such
power(s) of attorney as may be necessary for the
Scheduled Assets to be so retitled). Seller shall
reimburse Purchaser for out-of-pocket expenses reasonably
incurred by Purchaser in connection with such retitling
efforts. To the extent Seller and Purchaser are unable to
retitle any Scheduled Asset in Purchaser's (or its
designee's) name within the 180-day period set forth in
this Section 6.24, Purchaser shall at its option have the
right (subject to the penultimate sentence of this
Section 6.24), within 30 days after the expiration of
such 180-day period, to sell, transfer and convey to
Seller, and Seller shall be obligated to purchase from
Purchaser, any such Scheduled Asset for an amount equal
to (A) an amount equal to the sum of (1) the net book
value of such Scheduled Asset as set forth in the Net
Book Value of Equipment Report, (2) an amount equal to
10.647% of the amount set forth in clause (A)(1),
representing the premium over the net book value set
forth in such clause paid by Purchaser at the Closing
with respect to such Scheduled Asset, and (3) interest on
both such amounts from the Closing Date to the date of
such transfer at the rate set forth in Section 2.5, minus
(B) an amount equal to the sum of (1) all Revenues (as
defined below) from the Closing Date to the date of such
transfer and (2) interest thereon from the date such
revenues were received by Purchaser to the date of such
transfer at the rate set forth in Section 2.5. The sale,
transfer and conveyance by Purchaser of any Scheduled
Asset to Seller in accordance with this Section 6.24
shall occur pursuant to instruments of transfer in form
substantially similar to those used to effect the
transfer of the Assets at the Closing, and for any such
Scheduled Assets sold, transferred and conveyed by
Purchaser to Seller, Seller shall have no liability to
Purchaser for indemnification under Article XI hereof
(including without limitation for purposes of calculating
the $6 million amount provided for in the first sentence
of Section 11.1(c)). For the avoidance of doubt,
Purchaser's exercise of its rights under this Section
6.24 with respect to any Scheduled Asset shall not
require Purchaser to transfer any other Asset to Seller
(including any Contracts (or any rights thereunder)
related to such Scheduled Asset). Notwithstanding the
foregoing, Purchaser shall have no right to sell,
transfer and convey to Seller, and Seller shall not be
obligated to purchase from Purchaser, pursuant to this
Section 6.24, any Scheduled Asset that on the date of
such transfer is not in substantially the same operating
condition as Seller delivered it to Purchaser at the
Closing, without taking into consideration (i) normal
wear and tear and (ii) damages attributable to a customer
lessee's use of such Scheduled Asset but only if and to
the extent that such damages are equal to or exceed
$18,000 in the aggregate with respect to all Scheduled
Assets to be sold, transferred and conveyed by Purchaser
to Seller pursuant to this Section 6.24; provided that,
if the damages specified in the foregoing clause (ii) are
equal to or exceed $18,000 in the aggregate with respect
to all Scheduled Assets to be sold, transferred and
conveyed by Purchaser to Seller pursuant to this Section
6.24, Purchaser shall assert and pursue its rights
against such customer lessee with respect to such damages
with the same degree of care and diligence as Purchaser
would have used had the Scheduled Asset(s) in question
been retitled in its (or its designee's) name, and any
recovery obtained by Purchaser from such customer lessee
shall promptly be transferred to Seller. For purposes of
this Section 6.24, "Revenues" shall mean, with respect to
any Scheduled Asset, all revenues (whether or not such
revenues are carried or reflected on or specifically
referred to in Purchaser's books or financial statements)
received by Purchaser with respect to such Scheduled
Asset, minus an amount equal to (A) such revenues times
(B) the average direct operating expenses (expressed as a
percentage) incurred by Seller in 1999 with respect to
like-kind equipment."
2. Effect on Purchase Agreement. The amendments to the Purchase Agreement
contemplated by this Amendment are limited precisely as written and shall
not be deemed to be an amendment to any other terms or conditions of the
Purchase Agreement. The Purchase Agreement shall continue in full force and
effect as amended by this Amendment. From and after the date hereof, all
references to the Purchase Agreement shall be deemed to mean the Purchase
Agreement as amended by this Amendment.
3. Governing Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED UNDER THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY CONFLICTS OF LAWS
PROVISIONS THEREOF.
4. Headings. The section headings in this Amendment are intended solely for
convenience and shall be given no effect in the construction and
interpretation hereof.
5. Counterparts. This Amendment may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of
which taken together shall constitute one and the same agreement.
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered by the duly authorized officer of each party hereto as of the
date first above written.
TRANSAMERICA LEASING INC.
By: /s/ Richard H. Fearon
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Name: Richard H. Fearon
Title: Authorized Signatory
INTERPOOL, INC.
By: /s/ Mitchell Gordon
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Name: Mitchell Gordon
Title: CFO
