SECOND ADDENDUM
TO
PURCHASE OF ASSETS AGREEMENT
This Second Addendum to Purchase of Assets Agreement is
dated this 17th day of November, 2000, between MATLACK LEASING
CORPORATION, a Delaware Corporation ("Seller") and
MATLACK LEASING, LLC, a Pennsylvania Limited Liability Company
("Buyer").
W I T N E S S E T H:
WHEREAS, the Seller and Buyer are parties to a Purchase of
Assets Agreement ("Agreement") dated November 10, 2000, for the sale
and purchase of certain tank containers, tank trailers, and customer
leases as more fully described therein; and
WHEREAS, the Seller and Buyer entered into an Amendment to
Purchase of Assets Agreement dated November 15, 2000; and
WHEREAS, the Seller and Buyer desire to further amend the
Agreement pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the aforesaid premises
and in consideration of the promises, covenants, warranties and
representations hereinafter set forth, the parties hereto agree as
follows:
1. Any terms not otherwise defined herein shall have the meaning
assigned to it in the Agreement.
2. The Closing pursuant to the Agreement occurred on November 16,
2000. In connection with the Closing, Buyer will cause to be wired,
pursuant to the direction of Seller, the sum of $8,615,996 to First
Union National Bank ("First Union") in accordance with the terms of a
Release Letter dated November 17, 2000 ("First Union Release
Letter"), issued in connection with the Closing and the sum of
$2,255,531 to Fleet National Bank, formerly Bank of Boston, ("Fleet")
pursuant to the terms of a Release Letter dated November 17, 2000
("Fleet Release Letter").
3. Seller has been unable to deliver original titles to certain of
the titled assets being purchased by Buyer pursuant to the Agreement
(the "Specific Assets"), which titles are purportedly with First
Union (the "First Union Titles") or Fleet (the "Fleet Titles"). As a
result, (a) an amount equal to $4,400,000 (the "First Union Escrow")
is being held in escrow by First Union pursuant to the terms of an
Escrow Agreement ("First Union Escrow Agreement") in respect of the
First Union Titles; and (b) an amount equal to $2,255,531 (the "Fleet
Escrow") is being held in escrow by Fleet pursuant to the terms of an
Escrow Agreement (the "Fleet Escrow Agreement") in respect of the
Fleet Titles.
4. Seller shall deliver to Buyer original title to each piece of the
Specific Assets represented by the First Union Titles, either (a)
noted with the lien of First Union, together with all necessary
endorsements and other documents required to remove such party's lien
thereon or (b) not noted with First Union's lien but with respect to
which Summit Business Capital Corp. ("Summit") has been able to cause
its lien to be noted thereon. In the event Seller cannot deliver
title to any of the Specific Assets in the form set forth in
Subsections 4(a) or 4(b), then Buyer shall have the right to put to
Seller and Seller shall have the obligation to purchase (in event of
such put from Buyer) any such piece of the Specific Assets for the
sum of $16,117.21 each. In such case Buyer shall have the right to
notify First Union that it has exercised such put specifying the
piece of the Specific Assets for which the put has been exercised and
First Union shall make payment out of the applicable First Union
Escrow directly to Summit at the rate set forth and pursuant to the
terms of the First Union Escrow Agreement.
5. Seller shall deliver to Buyer original title to each piece of the
Specific Assets represented by the Fleet Titles, either (a) noted
with the lien of Fleet, together with all necessary endorsements and
other documents required to remove such party's lien thereon or (b)
not noted with Fleet's lien but with respect to which Summit Business
Capital Corp. ("Summit") has been able to cause its lien to be noted
thereon. In the event Seller cannot deliver title to any of the
Specific Assets in the form set forth in Subsections 5(a) or 5(b),
then Buyer shall have the right to put to Seller and Seller shall
have the obligation to purchase (in event of such put from Buyer) any
such piece of Equipment for the sum of $16,707.64 each. In such case
Buyer shall have the right to notify Fleet that it has exercised its
put specifying the piece of Equipment for which the put has been
exercised and Fleet shall make payment out of the Fleet Escrow
directly to Summit Business Capital Corp. at the rate set forth and
pursuant to the terms of the Fleet Escrow Agreement.
6. Sums may be withdrawn from the Escrows at the applicable rates set
forth in the First Union Escrow Agreement or the Fleet Escrow
Agreement, as applicable, for each original title for the Specific
Assets delivered to Summit either (a) noted with the lien of First
Union or Fleet, as applicable, together with all necessary
endorsements and other documents required to remove such party's lien
thereon or (b) not noted with First Union's or Fleet's lien but with
respect to which Summit has been able to cause its lien to be noted
thereon.
7. Seller agrees to assist the Buyer in the transfer of title in and
to the Specific Assets. Seller hereby irrevocably makes, constitutes
and appoints Buyer (and any of Buyer's designated officers,
employees, members or agents) as its true and lawful
attorney-in-fact, with full power of substitution, with power to
prepare, file and sign Seller's name or names on any title or lien
certificate to transfer title in and to any of the Specific Assets
from Seller to Buyer, and for no other purpose. Seller ratifies and
approves all acts of said attorneys and agrees that said attorneys
shall not be liable for any acts of co-mission or omission, nor for
any error of judgment or mistake of fact or law, except willful
misconduct. This power, being coupled with an interest, is
irrevocable.
8. Seller and Buyer hereby agree to direct Commerce Bank to transfer
the sum of $250,000 held in the deposit account under the Agreement
to an account to fund the escrow account for indemnification under
the Agreement pursuant to the terms of the Escrow Account for
Indemnification Agreement dated November 16, 2000.
9. All other terms and conditions of the Agreement shall remain in
full force and effect and binding upon the parties.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Addendum as of the date above-written in any number of
counterparts, each of which fully executed counterpart shall be
deemed an original for all purposes.
MATLACK LEASING, LLC
By:
Name:
Title:
MATLACK LEASING CORPORATION
By:
Name:
Title:
MATLACK, INC.
By:
Name:
Title: