SECOND AMENDMENT TO
ASSET PURCHASE AGREEMENT,
REAL ESTATE PURCHASE AGREEMENT,
AND COMMERCIAL LEASE
This Second Amendment to Asset Purchase Agreement, Real Estate Purchase
Agreement, and Commercial Lease (the "Amendment") is made effective as of
October 30, 1998, by and among JHT, Inc., a Minnesota corporation and subsidiary
of Smithway Motor Xpress Corp., as assignee of Smithway Motor Xpress, Inc.
("Buyer"); Gone Fishing, Inc., a Minnesota corporation f/k/a JHT, Inc. ("Gone
Fishing"), JHT LOGISTICS, INC., a Minnesota corporation ("Logistics"), Bass
Brook Truck Service, Inc., a Minnesota corporation ("Bass Brook"), and JERDON
TERMINAL HOLDINGS, LLC ("Jerdon"), a Minnesota limited liability company
(individually a "Company" and together the "Companies"); and Jerry H. Hammann,
Donna Hammann, Vicki Dunnell, Tammi Smith, and Jerry S. Hammann, shareholders or
members of the Companies (individually a "Shareholder" and together the
"Shareholders").
RECITALS
The parties previously entered into that certain Asset Purchase Agreement and
Real Estate Purchase Agreement each dated September 23, 1998 (together, the
"Original Agreements"), that certain Commercial Lease dated October 29, 1998
(the "Commercial Lease"), and that certain First Amendment to the original
Agreements dated October 29, 1998 (the "First Amendment", together with the
Commercial Lease and the Original Agreements, the "Agreements"). Certain events
have transpired since the execution of the Agreements that the parties wish to
reflect in writing.
TERMS
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants, representations, and warranties herein contained, and upon the terms
and conditions hereinafter set forth, the parties hereto agree as follows:
A. Amendment of Agreements. The provisions of this Amendment shall supplement
and amend the Agreements as specifically stated herein. If there is a conflict
between this Amendment and the Agreements, this Amendment shall control. Except
as stated herein, the Agreements shall continue in full force and effect.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed in the Asset Purchase Agreement.
B. Purchase and Lease of Real Estate. Anything to the contrary
notwithstanding, the Commercial Lease and First Amendment are amended to provide
that rent for Buyer's use of the Real Estate shall be paid monthly in arrears,
with the first payment for the period from October 30, 1998 through November 30,
1998, being due on December 1, 1998, and continuing on the first of each month
thereafter. The Commercial Lease is amended to provide that the leased premises
is the Surface of the Real Property described on Exhibit 1 to the Real Estate
Purchase Agreement (the "Premises" or "premises"). Lessor shall retain exclusive
ownership and control of the subsurface of such Real Property. For purposes of
the Commercial Lease, "Surface" shall include that part of the structures or
improvements (including parking and driving areas) above the plane of the soil.
The term Surface shall not include, and Lessor shall retain ownership of, any
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soils, groundwater, pollution, or other contamination, or any other solid, gas,
or liquid in the subsurface. The Lessee shall have an irrevocable license to use
the adjacent subsurface of the Real Property for maintenance and repairs of the
Premises. Lessee shall also have an irrevocable license to the use of the
foundation or other support below the structures or improvements of the
Premises.
C. Removal of Underground Storage Tanks. Anything to the contrary
notwithstanding, Gone Fishing shall re-assume, as of October 30, 1998, the
existing contract with Independent Petroleum Service, Inc. with a date of
acceptance of September 15, 1998 by delivery of written notification to
Independent Petroleum Service, Inc. and shall receive the benefit of the $5,543
prepayment under such contract already made by Gone Fishing. Buyer shall pay the
Buyer Amount, as defined in the First Amendment, at the Real Estate Closing. The
Companies shall direct and control the removal and replacement of the
underground storage tanks located on the Real Property. In connection with such
removal and replacement, the Companies shall reasonably consider the advice and
wishes of Buyer and Buyer shall provide reasonable cooperation.
D. Indemnity Supplement in Addition to Indemnity Obligations Under the
Agreements. The Companies and Shareholders shall indemnify and hold harmless
Buyer from any and all claims, causes of action, suits, judgments, losses,
damages, deficiencies, obligations, costs, and expenses (including, without
limitation, interest, penalties, and reasonable fees, and costs of attorneys and
other experts) (hereinafter, collectively referred to as "Claims") caused by the
presence, release, or threatened release of any Environmental Constituent on,
to, or from the Real Property (including soils, groundwater, surface water,
buildings or other structures) before October 30, 1998 or caused by the
performance of the contract referred to in paragraph C hereof. Without limiting
the generality of the foregoing, the Companies and Shareholders shall indemnify
Buyer against any Claims caused by the conditions identified (i) in the Phase I
Environmental Site Assessment prepared by American Engineering Testing, Inc. for
the Scudder Law Firm, or (ii) by GME Consultants, Inc. in its initial site
assessment and remedial investigation. As used herein, the term "Environmental
Constituent" means any pollutant, contaminant, foreign substance, or hazardous
substance, and shall include but not be limited to, petroleum, petroleum
products, and substances identified or designated pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601, et seq.
E. Schedule Amendment. The last page of Schedule A-1 to the Asset Purchase
Agreement is amended to delete the reference to trailer #715,152, and the
$25,000 in payment thereof, that was wrecked prior to Closing. The Companies
shall deliver to Buyer $25,000 in payment thereof.
F. Counterparts. This Amendment may be executed in any number of counterparts
and any party hereto may execute any such counterpart, each of which when
executed and delivered shall be deemed to be an original and all of which
counterparts taken together shall constitute but one and the same instrument.
This Amendment shall become binding when one or more counterparts taken together
shall have been executed and delivered by the parties. It shall not be necessary
in making proof of this Amendment or any counterpart hereof to produce or
account for any of the other counterparts.
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Signature Page Entitled "Second Amendment To
Asset Purchase Agreement, Real Estate Purchase Agreement,
and Commercial Lease" Follows
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Signature Page to Second Amendment to
Asset Purchase Agreement, Real Estate Purchase Agreement,
and Commercial Lease
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IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment on
the date first written.
THE SHAREHOLDERS THE COMPANIES
GONE FISHING, INC.,
a Minnesota corporation
/s/ Jerry H. Hammann By:/s/ Donna Hammann
- ------------------------------ ------------------------
Jerry H. Hammann, Individually Donna Hammann, President
/s/Donna Hammann
- ------------------------
Donna Hammann, Individually JHT LOGISTICS, INC.,
a Minnesota corporation
/s/Vicki Dunnell By:/s/Donna Hammann
- ------------------------ ------------------------
Vicki Dunnell, Individually Donna Hammann, President
/s/Tammi Smith
- ------------------------
Tammi Smith, Individually BASS BROOK TRUCK SERVICE, INC., a Minnesota
corporation
/s/Jerry Hammann By:/s/Jerry Hammann
- ------------------------ ------------------------
Jerry S. Hammann, Individually Jerry H. Hammann, President
BUYER JERDON TERMINAL HOLDINGS, LLC, a Minnesota
limited liability company
JHT, INC.
By: /s/Jerry H. Hammann
------------------------
Jerry H. Hammann, Manager
By:/s/William G. Smith, President
- ---------------------------------
William G. Smith, President
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