KENAN TRANSPORT COMPANY EXHIBIT 2.A
AMENDMENT TO
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ASSET PURCHASE AGREEMENT
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THIS AMENDMENT TO ASSET PURCHASE AGREEMENT (this "Amendment"),
dated as of December 1, 1997, is among Transport South, Inc., a Georgia
corporation ("Seller"); Racetrac Petroleum, Inc., a Georgia corporation;
and Kenan Transport Company, a North Carolina corporation ("Purchaser"),
and amends that certain Asset Purchase Agreement (the "Agreement") by and
between Seller and Purchaser dated as of October 31, 1997.
BACKGROUND
Purchaser and Seller desire to make certain changes to the
Agreement to reflect changes in the terms and conditions pursuant to which
Seller is selling certain assets to Purchaser.
AGREEMENT
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
the parties hereby agree as follows:
1. AMENDMENT OF THE AGREEMENT. The Agreement is hereby amended as
follows:
(a) Schedule 1.01A, Parts 4, 5 and 7; Schedule 1.01B; Schedule
1.01C; Schedule 1.01D; and Schedule 1.03 are hereby amended by making the
additions and deletions to such Schedules that are marked on the amended
Schedules attached as Exhibit A and incorporated herein.
(b) Section 1.01 of the Agreement is hereby amended by deleting
clause (iv) thereof, substituting an "and" for the comma at the end of
clause (iii) thereof, and renumbering clause (v) as clause (iv).
(c) Section 1.03 of the Agreement is hereby amended by (i)
reducing the purchase price in the introductory paragraph thereof from
Eleven Million Dollars ($11,000,000) to Ten Million Nine Hundred Two
Thousand Eight Hundred Seventy-Four Dollars and Thirty Cents
($10,902,874.30) and (ii) by reducing the balance due Seller at Closing in
paragraph (b) thereof from Ten Million Nine Hundred Thousand Dollars
($10,900,000) to Ten Million Eight Hundred Two Thousand Eight Hundred
Seventy-Four Dollars and Thirty Cents ($10,802,874.30).
(d) Section 2.01 of the Agreement is hereby amended by deleting
the date "November 28, 1997" and substituting the date "December 2, 1997"
therefor.
(e) Section 2.03 of the Agreement is hereby amended by deleting
clause (ii) thereof.
(f) Exhibit A to the Asset Purchase Agreement, the Assignment and
Assumption Agreement, is hereby amended by substituting the word
"Assignor" for the word "Seller" in each place where that word appears in
paragraph 2 thereof and by substituting the word "Assignee" for the word
"Purchaser" in each place where that word appears in paragraph 2 thereof.
(g) Section 8.02 (iii) is hereby amended to add the following
subclauses (d) and (e):
(d) any use by Purchaser or Purchaser's employees
of Driver Terminal Access Cards or access to
facilities obtained by use of such cards;
(e) delivery by Seller to, and receipt by
Purchaser of, Department of Transportation Drivers'
files with respect to Seller's employees hired by
Purchaser and Purchaser's use of such files.
2. CERTAIN ADDITIONAL MATTERS. Notwithstanding the terms of the
Agreement, the following matters are exceptions to the covenants and
agreements set forth in the Agreement or additional covenants and
agreements, all of which are acknowledged and agreed to by the parties
hereto.
(a) Seller is delivering Certificates of Title for all Assets for
which title is evidenced except for the following:
(i) Seller is in the process of obtaining a duplicate
Certificate of Title for trailer 4813, VIN 1PMA24221M1010858,
which will be transferred to Purchaser as soon as it is
obtained.
(ii) Seven Certificates of Title, for the following
trailers, are held by Blanchard E. Tual on behalf of Wooten
Transports, Inc. as security for certain non-compete
payments, and Seller and Purchaser agree to use their
reasonable best efforts to cause the transfer of such
Certificates of Title to Purchaser as promptly as practicable
following the Closing, subject to such lien.
4842 VIN 1H4T04323NL026002
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4843 VIN 1H4T04321NL026001
4845 VIN 1HLA3A7B5P7H56908
4846 VIN 1HLA3A7B6P7H56934
4849 VIN 1HLA3A7B7R7H57528
5868 VIN 1HLA3A7B9P7H56507
4869 VIN 1HLA3A7B3P7H56907
(b) Seller has not yet obtained consents for the assignment of
the following Assumed Contracts:
(i) Hauling Contract with GRP, Inc. dated September 19,
1996. Purchaser has agreed to waive the requirement that
consent to assignment of this Assumed Contract be obtained
prior to Closing; provided, however, that Purchaser agrees to
fulfill Seller's obligations under such Assumed Contract and
Purchaser and Seller shall use their reasonable best efforts
to obtain such consent as soon as reasonably practicable
following the Closing.
(ii) Lease Agreement with Pitney Bowes Credit Corporation
dated July 29, 1996. Purchaser has agreed to waive the
requirement that consent to assignment of this Assumed
Contract be obtained prior to Closing; provided, however,
Purchaser and Seller shall use their reasonable best efforts
to obtain such consent as soon as reasonably practicable
following the Closing.
(c) In the event the parties determine sales tax is owed with
respect to the Tractors and Tank Trailers being transferred to Purchaser,
Purchaser shall remit the amount of such tax to Seller before the date on
which such tax becomes due and payable.
(d) Seller has agreed not to terminate the Driver Terminal Access
Cards with respect to drivers hired by Purchaser until notified by
Purchaser, provided that Seller will not be required to maintain such
cards as active after 90 days from the date hereof.
(e) Seller has agreed to allow Purchaser to make copies of the
Department of Transportation Drivers' files for those Seller employees to
be hired by Purchaser.
3. NO OTHER AMENDMENTS. Except as specifically set forth above, no
other amendments are made to the Agreement and the Agreement shall remain
in full force and effect in its amended form.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed as of the date first above written.
"SELLER"
TRANSPORT SOUTH, INC.
By:
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Name:
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Title:
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"PURCHASER"
KENAN TRANSPORT COMPANY
By:
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Name:
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Title:
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RACETRAC PETROLEUM, INC.
By:
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Name:
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Title:
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