Amendment No. 1 dated as of March 4, 1996 to ASSET PURCHASE
AGREEMENT, dated as of January 21, 1996 among HARLEY-DAVIDSON, INC., a
Wisconsin corporation (the "Company"), HOLIDAY RAMBLER LLC, an Indiana
limited liability company ("HR"), STATE ROAD PROPERTIES L.P., a Delaware
limited partnership ("SRP" and together with HR, the "Sellers") and MONACO
COACH CORPORATION, a Delaware corporation ("Buyer") (the "Agreement").
W I T N E S S E T H:
WHEREAS, the parties to the Agreement desire to amend the
Agreement in accordance with Section 9.9 of the Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants of the parties hereto, it is hereby agreed as follows:
1. Amendment of Section 2.2. Section 2.2 of the Agreement is
hereby amended by deleting it in its entirety and substituting in lieu
thereof the following:
2.2 Purchase Price and Payment. In
consideration for the Assets, and subject to the terms
and conditions of this Agreement, Buyer shall on the
Closing Date (i) assume the Assumed Liabilities as
provided in Section 1.5 hereof, (ii) transfer to HR
(A) $21,088,762 by wire transfer in immediately
available funds to an account designated in writing by
HR to Buyer at least 2 business days prior to the
Closing Date and (b) at Buyer's option either (x) an
additional $3.0 million by wire transfer in the same
manner as set forth above or (y) 65,217 shares of
Buyer's Series A Convertible Preferred Stock, par
value $.01 per share (the "Preferred Stock"), having
such rights, preferences, privileges and restrictions
as are set forth in the Certificate of Designation for
such stock attached hereto as Exhibit B (the
"Certificate of Designations") and (iii) transfer to
SRP $1,261,238 by wire transfer in immediately
available funds to an account designated in writing by
SRP to Buyer at least 2 business days prior to the
Closing Date. The value tendered by Buyer pursuant to
this Section 2.2, as adjusted pursuant to the
provisions of Section 2.3 below, shall be hereinafter
referred to as the "Purchase Price". The Purchase
Price and the Assumed Liabilities shall be allocated
among the Assets in a manner to be agreed upon by the
Sellers and Buyer consistent with Section 1060 of the
Code (as defined below). Buyer and the Sellers agree
to act in accordance with such allocations in all tax
returns, tax reports and tax filings filed on or after
the Closing Date, unless otherwise required by law.
2. Amendment of Section 2.3(d). Section 2.3(d) of the
Agreement is hereby amended by deleting it in its entirety and
substituting in lieu thereof the following:
(d) In the event the Net Book Value as derived
from the Adjusted Closing Statement is less than $26.6
million, Buyer shall be paid an amount equal to the
difference between (x) $26.6 million and (y) Net Book
Value as derived from the Adjusted Closing Statement.
Any payment required by this first sentence of Section
2.3(d) shall be made by Sellers to Buyer within 5
business days after the issuance of the Adjusted
Closing Statement by wire transfer in immediately
available funds to an account designated by Buyer.
3. Amendment of Section 2.3(e). Section 2.3(e) of the
Agreement is hereby amended by deleting it in its entirety and
substituting in lieu therefor the following:
(e) In the event the Net Book Value as derived
from the Adjusted Closing Statement is greater than
$26.6 million, Sellers shall be paid an amount equal
to the excess of the Net Book Value as derived from
the Adjusted Closing Statement over $26.6 million.
Any payment required to be made by Buyer to Sellers
pursuant to this Section 2.3(e) shall be made by Buyer
by wire transfer in immediately available funds to an
account designated by Sellers.
4. Amendment of Section 9.3(a)(iii). Section 9.3(a)(iii) of
the Agreement is hereby amended by deleting it in its entirety and
substituting in lieu thereof the following:
(iii) any actual Damages incurred or sustained by Buyer as
a result of any breach by the Company or the Sellers of the
representations and warranties set forth in Section 3.1,
provided that (W) the Company and HR shall be required to
indemnify Buyer pursuant to this clause (iii) for any such
breach or breaches only to the extent that the aggregate
actual Damages resulting from such breaches exceeds
$300,000, (X) neither the Company nor HR shall be required
to indemnify Buyer pursuant to this clause (iii) in an
aggregate amount in excess of (1) $5 million for the
breaches of any representations or warranties contained in
Section 3.1 (except for Section 3.1(p)) or (2) $10 million
less the amount of any expenditures made by the Company or
HR pursuant to the terms of that certain Environmental
Matters Agreement dated as of March 4, 1996 among the
parties hereto; for the breaches of any representations or
warranties contained in Section 3.1(p)), (Y) Buyer agrees
to aggregate its claims pursuant to this clause (iii) so
that the aggregate amount of the claims is $25,000 or
greater, and (Z) any claim for indemnification under this
clause (iii) must be made in writing in reasonable detail
to the Company and HR by the Buyer not later than April 30,
1997, or such longer period with respect to a breach of a
specific representation or warranty that is set forth in
Schedule 3.3; provided, further, that for the purposes of
this Section 9.3(a)(iii), the representations and
warranties of the Company and Sellers contained in Section
3.1 of this Agreement which by their terms contain any
qualification or limitation with respect to a Material
Adverse Effect, or are otherwise qualified or limited with
respect to materiality, shall be read without giving effect
to any such qualification or limitation and
5. Effectiveness. This Amendment No. 1 shall become effective
as of the date first above written upon receipt by each party hereto of
counterparts of this Amendment No. 1, duly executed by the parties hereto.
Upon the effectiveness of this Amendment No. 1, all references in the
Agreement to the "Agreement" shall be deemed references to the Agreement
and this Amendment No. 1.
6. Limited Effect. Except as expressly amended, waived,
modified or supplemented hereby, all of the covenants and provisions of
the Agreement shall continue to be in full force and effect in accordance
with their respective terms. The amendments contained herein shall be
limited precisely as drafted and narrowly construed and shall not
constitute an amendment or waiver of any other provision of the Agreement.
7. GOVERNING LAW. THIS AMENDMENT NO. 1 SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF INDIANA WITHOUT
REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
8. Counterparts. This Amendment No. 1 may be executed by the
parties hereto on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned have caused this Amendment
No. 1 to be duly executed and delivered as of the date first above
written.
HARLEY-DAVIDSON, INC.
By: __________________________
Title:
HOLIDAY RAMBLER LLC
By: __________________________
Title:
STATE ROAD PROPERTIES L.P.
By: HR LEASING CORP., its
General Partner
By: __________________________
Title:
MONACO COACH CORPORATION
By: __________________________
Title: