Exhibit 2.2
AMENDMENT NO. 1
TO
ASSET PURCHASE AGREEMENT
AMENDMENT NO. 1, dated as of March 30, 2001 (this "Amendment"),
to the Asset Purchase Agreement, dated as of January 26, 2001 (the
"Purchase Agreement"), between INTERPOOL, INC., a Delaware corporation
("Seller") and TRANSPORT INTERNATIONAL POOL, INC., a Pennsylvania
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 11.1 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 hereby is acknowledged, the parties hereby
agree as follows:
1. Amendment to Section 2.1 of the Purchase Agreement. The introductory
clause of Section 2.1 of the Purchase Agreement hereby is amended to read
in its entirety as follows:
"Subject to the provisions of Section 2.8 hereof, at the
Closing, Seller shall (and shall cause the Designated
Subsidiaries to) sell, transfer, assign, convey and deliver to
Purchaser, and Purchaser shall purchase and acquire from Seller
and the Designated Subsidiaries, any and all of Seller's and
the Designated Subsidiaries' right, title and interest in, to
and under all of the assets of Seller and the Designated
Subsidiaries set forth below in this Section 2.1 (any and all
such assets, but excluding the Excluded Assets, the "Acquired
Assets"):"
2. Amendment to Section 2.5 of the Purchase Agreement. Subsections (a), (b)
and (c) of Section 2.5 of the Purchase Agreement hereby are amended and
restated in their entirety to read as follows:
"(a) (i) Subject to the terms and conditions of this
Agreement, in consideration of the aforesaid sale, transfer,
assignment, conveyance and delivery of the Acquired Assets to
Purchaser, Purchaser shall (i) assume the Assumed Liabilities
(including, without limitation, the assumption and novation of
the Indebtedness) and (ii) pay to Seller an aggregate amount
(the "Purchase Price") equal to (A) the sum of (1) two hundred
eighty-eight million six hundred eighty seven thousand five
hundred twelve dollars [($288,687,512)], (2) the Indebtedness
Shortfall Amount, if any, (3) the Closing Day Amount, (4) the
Net Assets Adjustment Amount and (5) the aggregate Delayed
Delivery Unit Amounts minus the sum of (i) the aggregate amount
of security deposits shown on the Closing Date Schedule of
Security Deposits, (ii) thirty nine thousand two hundred sixty
one dollars ($39,261), representing Purchaser's share of
certain costs required to obtain one of the novations
contemplated by Section 5.4 hereof, and (iii) twenty-six
thousand sixty-seven dollars ($26,067), representing an
adjustment for errors in the September 30, 2000 statement of
assets. The Purchase Price shall be subject to post-Closing
adjustment as provided in Sections 2.7(f), 2.7(h) and 2.7(j)
hereof.
(ii) At the Closing, Purchaser shall pay to Seller, by
wire transfer in immediately available funds to such account or
accounts as Seller shall designate in writing to Purchaser not
less than three business days prior to the Closing, an
aggregate amount equal to (A) the sum of (1) the aggregate
Assigned Equipment Values for the Scheduled Intermodal Assets
other than the Delayed Delivery Units, (2) 80% of the estimated
aggregate Assigned Equipment Values for the Delayed Delivery
Units, (3) the Indebtedness Shortfall Amount, if any, (4) the
Closing Day Amount, (5) the Net Assets Adjustment Amount and
(6) 80% of the estimated aggregate Delayed Delivery Units
Amount minus the sum of (i) sixty-five thousand three-hundred
twenty-eight dollars ($65,328) and (ii) the aggregate amount of
security deposits shown on the Closing Date Schedule of
Security Deposits. Purchaser may credit the amounts specified
in subsections (f) and (g) of Section 5.6 against the cash
payments required to be made by it at Closing.
(b) For purposes of this Agreement, the term "Closing Day
Amount" means: (i) if the Closing occurs before March 30, 2001,
the product obtained by multiplying (A) ninety-two thousand
dollars ($92,000) by (B) the number of calendar days from and
including the Closing Date through, to and including March 29,
2001; and (ii) if the Closing occurs after March 30, 2001, the
product obtained by multiplying (A) ninety-two thousand dollars
($92,000) by (B) negative one (-1) by (C) the number of
calendar days from and including March 31, 2001 through and
including the Closing Date.
(c) For purposes of this Agreement, the term
"Indebtedness Shortfall Amount" shall be an amount equal to the
difference determined by subtracting (i) the aggregate amount
of Indebtedness under the Scheduled Lease-In Transactions as of
the Closing from (ii) fifty-six million nine hundred twenty-two
thousand four hundred eighty-eight dollars ($56, 922,488).
Additionally, the parties hereto agree that for purposes of
determining the Indebtedness Shortfall Amount, the aggregate
amount of Indebtedness under the Scheduled Lease-In
Transactions prior to April 1, 2001 shall not be less than
fifty-six million nine hundred twenty-two thousand four hundred
eighty-eight dollars ($56,922,488)."
3. Deletion of Section 2.5(d). Subsection (d) of Section 2.5 of the
Purchase Agreement hereby is deleted and replaced with the following: "(d)
intentionally omitted".
4. Amendment to Section 2.5(e) of the Purchase Agreement. Section 2.5(e) of
the Purchase Agreement hereby is amended by amending and restating clause
(ii) contained therein to read as follows:
"(ii) the sum of the Assigned Equipment Values for all New Purchased
Equipment (provided that the purchase price of New Purchased Equipment in
excess of $500,000 shall not be considered in calculating the Net Assets
Adjustment Amount unless such equipment is subject to a lease with a
customer in the ordinary course of Seller's business (such excess of New
Purchased Equipment which is not subject to a lease is herein referred to
as the "Excess New Equipment")), all Leased-In Equipment not listed on
Exhibit C but which are subject to a Lease-In Transaction as of the Closing
Date, all Managed Equipment not listed on Exhibit C but which are subject
to a Management Agreement as of the Closing Date and the sum of the
Assigned Equipment Values as reflected on Seller Disclosure Schedule 2.5(e)
for all equipment that was not listed on Exhibit A but which has since
become a part of Seller's fleet of Domestic Containers and Intermodal
Trailers either because (x) the Equipment was initially classified as being
lost and subsequently determined not to be lost, or (y) the Equipment was
initially classified as being held for sale or sold and subsequently
determined to have been retained as part of Seller's fleet (the "Reinstated
Equipment"). A list of the Reinstated Equipment is attached hereto as Annex
A, which is deemed to be Annex A to Exhibit A to the Purchase Agreement.
Seller shall be responsible for any reimbursements due and owing to lessees
who have paid to Seller stipulated loss values or made any other payments
prior to Closing in respect of Reinstated Equipment."
5. Addition of New Section 2.5(f). The Purchase Agreement hereby is amended
by adding the following new Section 2.5(f):
"(f) Notwithstanding the inclusion in the Closing Date Schedule
of Acquired Assets of the units listed on Schedule 2.5(f)
attached hereto, such units constitute Sold Equipment and are
reflected as such in the calculation of the Net Assets
Adjustment Amount."
6. Amendment to Section 2.6 of the Purchase Agreement. (a) The date "March
31, 2001" appearing in clause (i) of the first sentence of Section 2.6 of
the Purchase Agreement hereby is replaced with "March 30, 2001".
(b) The last sentence of Section 2.6(a) hereby is deleted and
replaced with the following new sentences:
"Notwithstanding that the Closing shall occur on March 30,
2001, the sale, transfer, assignment, conveyance and delivery
of the Acquired Assets (other than in respect of the Delayed
Delivery Units), and the assumption of the Assumed Liabilities,
will be effective as of March 31, 2001, which is referred to
herein as the "Closing Date". For the avoidance of doubt, the
benefits and risks of ownership of the Acquired Assets,
including any revenues attributable thereto, shall remain with
the Seller through the end of the Closing Date, and the
responsibility for the payment, performance and discharge of
the Liabilities referred to in Sections 2.3(a), (b), (c) and
(g), shall remain with the Seller through the end of the
Closing Date."
(c) Subsection (b) of Section 2.6 hereby is amended
to read in its entirety as follows:
"(b) Subject to the provisions of Section 2.8 hereof, at
the Closing, the sale, transfer, assignment, conveyance and
delivery of the Acquired Assets and the assumption of the
Assumed Liabilities shall be effected pursuant to an assignment
and assumption agreement in customary form (the "Assignment and
Assumption Agreement") and such other documents and instruments
as are required by Article VII hereof and as may be necessary
in order to effect the sale of the Acquired Assets to Purchaser
and the assumption of the Assumed Liabilities by Purchaser.
Record title to certain of the Transamerica Assets has not been
transferred into the name of Seller or one of its subsidiaries.
Seller will at the Closing assign its rights in the power of
attorney executed by Transamerica in favor of Seller or one of
its subsidiaries for purposes of retitling or reregistering
such Transamerica Assets in Purchaser's name. To the extent
that such assignment is ineffective for such purpose, Seller or
one of its subsidiaries shall promptly take, at their sole
expense, such action as is necessary for such Transamerica
Assets to be retitled or reregistered in Purchaser's name,
including, if necessary, first retitling or reregistering such
Transamerica Assets in Seller's name or the name of one of its
subsidiaries."
7. Amendment to Section 2.7(h) of the Purchase Agreement. Section 2.7(h) of
the Purchase Agreement hereby is amended and restated in its entirety to
read as follows:
"(h) On or prior to April 12, 2001 (or such later date
that the parties mutually agree), Seller shall deliver written
notice to Purchaser advising it as to each Intermodal Trailer
sold by Seller to Purchaser pursuant to this Purchase Agreement
for which Seller did not deliver an original good title or
duplicate title ("Good Title") at the Closing or thereafter.
Purchaser shall, at its option, have the right upon written
notice to Seller delivered by April 17, 2001 (or such later
date that the parties mutually agree) to cause Seller's
ownership interest in those Intermodal Trailers lacking Good
Title to be transferred back to Seller, and to cause Seller in
turn to sell, transfer and convey to Transamerica any such
affected Intermodal Trailer for the amount set forth in Section
6.24 of the Transamerica Agreement (the "Repurchase Amount").
The Purchase Price shall be reduced by the sum of (i) all such
Repurchase Amounts with respect to all Acquired Assets other
than Delayed Delivery Units and (ii) the amount paid by
Purchaser at Closing pursuant to Section 2.8(b) hereof with
respect to Delayed Delivery Units, and within three (3)
Business Days of Seller's receipt of Purchaser's written notice
to Seller (which shall be accompanied by appropriate title
transfer documentation), Seller shall pay to Purchaser, by wire
transfer of immediately available funds to such account as
Purchaser shall designate, an aggregate amount equal to such
sum, together with interest accruing from the Closing Date to
the date immediately prior to the date of such payment, at an
annual rate equal to LIBOR plus 2%. Except for Units which
Seller sells, transfers and conveys to Transamerica within
sixty (60) days following the Closing Date, Seller shall apply
for a duplicate title at Seller's expense for each Intermodal
Trailer for which Seller has not delivered an original good
title or previously made such an application."
8. Addition of New Section 2.7(j). The Purchase Agreement hereby is amended
by adding the following new Section 2.7(j):
(j) After Closing and pursuant to the procedure set forth
in this Section 2.7(j), the Purchase Price shall be reduced by
the Maintenance Shortfall Amount, if any, as hereinafter
defined. From January 1, 2001 through the Closing Date, if the
amount of maintenance expenses incurred by Seller and its
Subsidiaries (such pro-rata portion is hereinafter referred to
as the "Actual Maintenance Expense") with respect to the
Transamerica Assets is less than the pro-rata portion of
eighteen million dollars ($18,000,000) based on a 365 day year
(the "Required Maintenance Expense"), then the Purchase Price
shall be reduced by the difference between the Required
Maintenance Expense and the Actual Maintenance Expense (such
reduction being referred to herein as the "Maintenance
Shortfall Amount").
Within 180 days after the Closing Date, Seller
shall deliver to Purchaser a detailed written notice
identifying its calculation of the Actual Maintenance Expense
and the Maintenance Shortfall Amount, if any, along with
documentation reasonably supporting the calculation thereof.
Purchaser shall have the opportunity during the 90-day period
following its receipt of Seller's calculation of the
Maintenance Shortfall Amount (the "Maintenance Shortfall Review
Period") to review the aforementioned calculations and
supporting documentation and dispute the amounts set forth
therein (the "Maintenance Dispute"). The failure of Purchaser
to notify Seller in writing within the Maintenance Shortfall
Review Period of Purchaser's objection to Seller's calculation
of the Maintenance Shortfall Amount shall be deemed Purchaser's
acknowledgment that such amount is accurate and final and
binding upon the parties. If Purchaser notifies Seller of a
Maintenance Dispute during the Maintenance Shortfall Review
Period, the parties shall, during the 15 Business Days
following delivery of the notice (the "Maintenance Negotiation
Period") that sets forth the Maintenance Dispute (the date of
delivery of such notice being referred to herein as the
"Maintenance Unresolved Dispute Notice Date"), negotiate in
good faith and use reasonable efforts to reach agreement on the
disputed items. If, during the Maintenance Negotiation Period,
the parties are unable to reach a final and binding agreement,
then they shall promptly pursue binding arbitration by either:
(i) an independent arbitrator reasonably satisfactory to
Purchaser and Seller (who shall not have any material
relationship with Purchaser or Seller or any of their
affiliates) or (ii) in the event Purchaser and Seller are
unable to select an arbitrator who is mutually satisfactory
within ten Business Days of the end of the Maintenance
Negotiation Period, then the American Arbitration Association
shall select an arbitrator. As promptly as practicable, the
arbitrator will deliver a report setting forth the final and
binding resolution of the Maintenance Dispute. Any such
arbitration shall be final, conclusive and binding upon the
parties hereto. The cost of such arbitration shall be borne
equally by Purchaser and Seller unless the arbitrator shall
decide entirely in favor of one party, in which case the cost
of such arbitration shall be borne by the non-prevailing party.
Within five Business Days of the resolution of all
disputes relating to the Maintenance Shortfall Amount, the
Purchase Price shall be reduced by the final Maintenance
Shortfall Amount, if any. Any payment of an amount to be paid
pursuant to this Section 2.7(j) shall be made within three (3)
Business Days after the date the Maintenance Shortfall Amount,
if any, becomes final and binding on the parties hereto,
together with interest accruing from the Closing Date to the
date immediately prior to the date of such payment, at an
annual rate equal to LIBOR plus 2%, by wire transfer of
immediately available funds to such account or accounts as
Purchaser shall designate. The parties shall make available to
each other and each other's representatives all information and
data reasonably required to compile and dispute the Maintenance
Shortfall Amount.
If there is a Maintenance Shortfall Amount and
Seller makes a payment to Purchaser pursuant to this Section
2.7(j), then Seller shall be entitled to a reimbursement from
Purchaser for any invoices Seller receives after the
calculation of the Maintenance Shortfall Amount and on or prior
to the one year anniversary of the Closing Date for any
maintenance expenses incurred by Seller between January 1, 2001
and the Closing Date up to the amount of the Maintenance
Shortfall Amount.
9. Addition of New Section 2.8. The Purchase Agreement hereby is amended by
adding the following new Section 2.8:
"SECTION 2.8 DELAYED DELIVERY OF TRAILERS.
(a) Notwithstanding the provisions of Sections 2.1 and
2.6(b) hereof, 1,262 Intermodal Trailers owned by Seller will
not be conveyed to Purchaser at the Closing (the "Delayed
Delivery Units"), and title to and delivery of the Delayed
Delivery Units instead will be conveyed and made to Purchaser
on a delayed basis pursuant to and at the times specified in
the provisions of this Section 2.8. Titles delivered at the
Closing to Purchaser for the Delayed Delivery Units will be
deemed to be held in escrow by Purchaser pending the transfer
of title to Purchaser pursuant to Section 2.8(f) of the
Purchase Agreement.
(b) Purchaser will inspect and, on or prior to two
Business Days before the Closing, designate in writing to
Seller the Delayed Delivery Units from the Intermodal Trailers.
The purchase price for each Delayed Delivery Unit will be the
Assigned Equipment Value for such unit as reflected on Schedule
2.5(e), plus the Delayed Delivery Unit Amount for such unit, as
specified in subsection (e) below. At the Closing, 80% of the
estimated aggregate Assigned Equipment Values and Delayed
Delivery Unit Amounts with respect to the Delayed Delivery
Units will be paid to Seller pursuant to the provisions of
Section 2.5(a)(ii) as a down payment for the purchase price of
such units.
(c) From time-to-time, Purchaser will designate in
writing to Seller vendors to complete drayage, logo removal,
logo installation and repairs to the Delayed Delivery Units
(the "Designated Services") at the direction of, and at prices
to be negotiated by, Purchaser. Seller will contract with the
vendors designated by Purchaser to perform the Designated
Services and will take the necessary actions to allow such
services to be performed by such vendors.
(d) Over the course of twelve months from and after the
Closing Date, Seller will arrange for the Designated Services
to be completed at its cost and, following the completion of
such Designated Services, cause the Delayed Delivery Units to
be delivered to Purchaser in accordance with its written
instructions. Any Delayed Delivery Units not previously
delivered to Purchaser on the one year anniversary of the
Closing Date will be delivered to Purchaser on such date.
(e) For the purposes hereof, the Delayed Delivery Unit
Amount for each Delayed Delivery Unit will be the cost to
Seller of completion of the Designated Services, plus $100. On
a monthly basis as soon as practicable after the first of the
month, commencing on the month subsequent to the month in which
Delayed Delivery Units are first delivered to Purchaser,
Purchaser shall pay Seller the balance of the purchase price
due and owing (the "Balance") in respect of each Delayed
Delivery Unit delivered to Purchaser during the preceding month
(the "Month's Units"). The Balance shall be the sum of (1) the
amount determined by subtracting the estimate of the Assigned
Equipment Value for such unit previously paid from the actual
Assigned Equipment Value of such unit, plus (2) the amount
determined by subtracting the estimated Delayed Delivery Unit
Amount for such unit previously paid from the actual Delayed
Delivery Unit Amount for such unit. If such sum is a negative
number, such amount shall be due and owing from Seller to
Purchaser. As promptly as practicable prior to such dates,
Seller will furnish Purchaser with a schedule of such amounts
that are due and owing and supporting documentation.
(f) Seller will retain title to and risk of loss and
ownership for each Delayed Delivery Unit until delivery is made
to Purchaser in accordance with the provisions of this Section
2.8. Title and risk of loss for each unit will transfer to
Purchaser upon delivery at the time specified by Purchaser.
(g) In the event any Delayed Delivery Unit is destroyed,
stolen or otherwise becomes Missing Equipment prior to delivery
to Purchaser at the designated destination, the Purchase Price
will be reduced by the Assigned Equipment Value plus the
Delayed Delivery Unit Amount, if any, in respect of such unit.
The down payment paid by Purchaser at Closing in respect of any
such units (viz., 80% of the sum of the estimated Assigned
Equipment Value and Delayed Delivery Unit Amount) will be
returned by Seller to Purchaser promptly after such unit
suffers such destruction, is stolen or otherwise becomes
Missing Equipment."
10. Amendment to Section 3.20 of the Purchase Agreement. Section 3.20 of
the Purchase Agreement hereby is amended and restated in its entirety to
read as follows:
"SECTION 3.20 INDEBTEDNESS. The aggregate amount of
Indebtedness under the Scheduled Lease-In Transactions as of
March 31, 2001 will be $56,922,488, and Purchaser waives any
breach of this representation because of such Indebtedness
being greater than such amount."
11. Amendment to Sections 5.4(a) and 5.4(b) of the Purchase Agreement.
Sections 5.4(a) and 5.4(b) of the Purchase Agreement are hereby amended by
adding the words "and thereafter for a period of up to one year"
immediately after the word "Closing" in the first two instances in which
the word "Closing" appears in each of Sections 5.4(a) and 5.4(b). Sections
5.4(a) and 5.4(b) of the Purchase Agreement are hereby further amended by
adding the words "and Seller each" immediately after the word "Purchaser"
in the first instance in which the word "Purchaser" appears in each of
Sections 5.4(a) and 5.4(b).
12. Amendment to Section 5.6 of the Purchase Agreement. Section 5.6 of the
Purchase Agreement hereby is amended to add the following new subsections
(f), (g) and (h):
"(f) Any payment received by Seller or any of its
Subsidiaries on or prior to the Closing Date to the extent
relating to the rentals of any of the Intermodal Assets for any
periods commencing after the Closing Date pursuant to Seller's
advance billing practices or otherwise shall be for the account
of Purchaser. At least two Business Days prior to the Closing
Date, Seller shall deliver to Purchaser a statement of the
payments received by Seller as described in this subsection
(f), which statement will be brought current through the
Closing Date to account for any receipt of payments prior to
the Closing. Purchaser will be entitled to credit the amounts
described in this subsection (f) against the cash payments
required to be made by it at Closing. Any amounts described in
this subsection (f) received by Seller for which Purchaser does
not apply such credit shall be promptly remitted to Purchaser.
(g) Any "Early Termination Payments" shall be for the
account of Purchaser. For purposes of this Agreement, the term
"Early Termination Payments" shall be the aggregate amount of
payments, including, without limitation, pre-payment penalties
and retroactive rental adjustments, received by Seller or any
of its Subsidiaries, if any, after the date hereof in
connection with or due and owing as a result of the early
termination of all or any part of any Lease Transaction.
Notwithstanding the foregoing sentence, if the Closing occurs
on or after May 1, 2001, then the Early Termination Payments
shall be the amount determined pursuant to the preceding
sentence, less the normal per diem rentals that Purchaser
otherwise would have been paid under the applicable Lease
Transaction without the early termination from the period
commencing on May 1, 2001 and ending on the day prior to the
Closing Date. At least two Business Days prior to the Closing
Date, Seller shall deliver to Purchaser a statement of the
Early Termination Payments, if any, received by Seller prior to
the Closing, which statement will be brought current through
the Closing Date to account for any receipt of payments prior
to the Closing. Purchaser will be entitled to credit any Early
Termination Payment against the cash payments required to be
made by it at Closing. Any Early Termination Payment received
by Seller for which Purchaser does not apply such credit shall
be promptly remitted to Purchaser.
(h) To the extent that following the Closing, Purchaser
has or possesses a title certificate or other ownership
documentation to any domestic container or trailer which was
not an Acquired Asset but which was previously owned by Seller
or any of its Subsidiaries and sold prior to the Closing,
Purchaser will return such title certificate or other ownership
documentation to Seller, promptly following the identification
of any such certificate or documentation by Seller and
notification to Purchaser."
13. Amendment to Section 5.16(a) of the Purchase Agreement. Section 5.16(a)
of the Purchase Agreement is hereby amended by adding the words "(iv) and
the operations with respect to Delayed Delivery Units to be conducted by
Seller as contemplated by Section 2.8 hereof" immediately after the words
"as contemplated by Section 5.15 hereof" in the fifteenth line of Section
5.16(a).
14. Amendment to Section 11.3 of the Purchase Agreement. Section 11.3 of
the Purchase Agreement hereby is amended to read in its entirety as
follows:
"SECTION 11.3 SUCCESSORS AND ASSIGNS; ASSIGNMENTS. All terms
and provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
transferees, successors and assigns. No party hereto may assign
any of its rights or delegate any of its obligations hereunder
without the prior written consent of the other party, except
Purchaser may assign, without the need to obtain the consent of
Seller, certain or all of its rights and obligations
(including, without limitation, its rights under Section 5.7
hereof), fully or partially, before and/or after the Closing
(provided it continues to fully and unconditionally guarantee
such obligations), to a Subsidiary or other entity controlled
by Purchaser or Purchaser's parent company, General Electric
Capital Corporation. Any such attempted assignment or
delegation that requires the consent of Seller without such
consent shall be null and void."
Amendment to Seller Disclosure Schedule; Waiver of Claims. Section
3.18 of the Seller Disclosure Schedule hereby is amended to add
thereto the following: Agreement on the Open Contract of Marine
Insurance No. 00Q21465G (LTL: Dry) dated August 1, 2000 among
Interpool, Inc., Transamerica Leasing Inc. and Tokyo Marine and
Fire Insurance Co., Ltd. (the "Tokyo Marine Policy"). Purchaser
hereby waives any indemnification rights claims, rights or causes
of action arising from any alleged breach of representation and
warranty or otherwise that Purchaser would or could have had under
the Purchase Agreement resulting from Seller's failure to disclose
to Purchaser in the Seller Disclosure Schedule as exceptions to the
representations and warranties made by Seller to Purchaser in
Article III of the Purchase Agreement or otherwise the following:
(i) the Tokyo Marine Policy, (ii) the early termination of units by
Pacer under Seller's Lease Transaction with Pacer or (iii) the
damage waiver provisions obligating the lessor to incur the costs
of certain repairs under Seller's Lease Transactions with Pacer.
15. Amendment to Seller Disclosure Schedule; Waiver of Condition. Section
7.2(d) of the Seller Disclosure Schedule hereby is amended to delete the
following:
"Norfolk Southern Corporation
-Equipment Lease Agreement dated August 20, 1984."
"Union Pacific Railroad
-Master Lease Agreement dated February 1, 1986.
-Equipment Lease Agreement dated April 15, 1993."
Moreover, Purchaser hereby waives its rights pursuant to Article VII of the
Agreement arising from the failure to obtain any of the consents, waivers,
authorizations and approvals of third Persons which are set forth in
Section 7.2(d) of the Seller Disclosure Schedule.
16. 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.
17. Miscellaneous.
(a) 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.
(b) Headings. The section headings in this Amendment are intended solely
for convenience and shall be given no effect in the construction and
interpretation hereof.
(c) 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.
IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered by a duly authorized officer of each party hereto as of the date
first above written.
INTERPOOL, INC.
By: /s/ Mitchell I. Gordon
-------------------------
Name: Mitchell I. Gordon
Title: Executive Vice President & Chief
Financial Officer
TRANSPORT INTERNATIONAL POOL, INC.
By: /s/ James L. Robo
-------------------------
Name: James L. Robo
Title: Chief Executive Officer and President