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Exhibit 2.2
AMENDMENT OF ASSET PURCHASE AGREEMENT
This Amendment of Asset Purchase Agreement is entered into this 3rd
day of December, 1998, by and between ▇▇▇▇▇ Bros. Inc., an Oregon corporation
("Seller"), and TA Operating Corporation, a Delaware corporation ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller and Buyer are parties to that certain Asset Purchase
Agreement, dated October 17, 1998 ("Purchase Agreement");
WHEREAS, Seller and Buyer desire to amend the Purchase Agreement in
accordance herewith;
NOW THEREFORE, in consideration of the premises above and the mutual
covenants and agreements set forth herein and in the Purchase Agreement, the
parties hereto agree as follows:
1. Capitalized terms used herein and not otherwise defined, shall
have the meanings ascribed thereto in the Purchase Agreement.
2. Section 1.1 shall be amended by including, in alphabetical order,
the following definitions:
"Ancillary Documents" means the Subway Purchase Agreement, the
Enterprises Asset Purchase Agreement, the BFR Asset Purchase Agreement, the
Services Agreement, the General ▇▇▇▇ of Sale and Assignment, the Assumption
Agreement, the Trademark Assignment, the Gaming Agreement and the Intellectual
Property License Agreement.
"Assumption Agreement" means that certain Assumption Agreement by
and between Seller and Buyer, executed by Buyer and delivered contemporaneously
with this Agreement.
"Gaming Agreement" means the Lease of Real Property for Gaming
Purposes at Mill City, NV and the Lease of Real Property for Gaming Purposes at
Rye Patch, NV both by and between Enterprises and Buyer, executed and delivered
contemporaneously with this Agreement.
"General ▇▇▇▇ of Sale and Assignment" means that certain General
▇▇▇▇ of Sale and Assignment executed by Seller and delivered contemporaneously
with this Agreement.
"Intellectual Property License Agreement" means that certain License
Agreement by and between Buyer and Seller, executed and delivered
contemporaneously with this Agreement.
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"Services Agreement" means that certain Services Agreement by and
between Seller and Buyer, executed and delivered contemporaneously with this
Agreement.
"Subway Purchase Agreement" means that certain Subway Purchase
Agreement by and between Seller and Buyer, executed and delivered
contemporaneously with this Agreement.
"Trademark Assignment" means that certain Assignment executed and
delivered by Seller contemporaneously with this Agreement.
"Transaction Documents" means this Agreement and each other
agreement and document executed and delivered at Closing.
3. The definition of "Receivables Amount" in Section 1.1 of the
Purchase Agreement shall be and hereby is amended by deleting the reference to
"Section 3.3" in such definition and replacing it with "Section 2.2.1."
4. Section 1.2(k) of the Purchase Agreement shall be and hereby is
deleted in its entirety and the following shall be substituted therefor:
(k) Real Property. All real estate and interests in real estate
(including, but not limited to, all buildings and
improvements) used or usable in connection with the Business,
including without limitation, the sites listed on Schedule
1.2(k), attached hereto, and all contiguous and noncontiguous
"out parcels," including, but not limited to the out parcels
located in Corning, California and Troutdale, Oregon
(collectively, the "Owned Real Property");
5. Section 1.3(e) of the Purchase Agreement shall be and hereby is
deleted in its entirety and the following shall be substituted therefor:
(e) Certain Assets at Troutdale, Oregon. The personal property
(including equipment, but excluding food inventory) located at
and used in the operation of the kitchen and lounge and video
poker facility at the Troutdale, Oregon, facility, and listed
on Schedule 1.3(e).
6. The first sentence of Section 2.2.1 of the Purchase Agreement
shall be and hereby is deleted and the following shall be substituted therefor:
2.2.1 Preparation of Preliminary Closing Balance Sheet. Within
forty-five (45) days after the Closing, Seller will prepare and
deliver to Buyer a balance sheet (the "Preliminary Closing Balance
Sheet") as of the Closing reflecting, among other things: (a) the
current liabilities of Seller, excluding the current portion of any
long-term debt, liabilities related to environmental matters,
workers' compensation or insurance claims and all employee related
matters, and reducing such liabilities by an amount equal to
identifiable and
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realizable payment term discounts; and (b) an amount equal to the
accounts receivable of the Business (including accounts receivable
which relate or pertain to ▇▇▇▇, but excluding accounts receivable
which are subject to the American Credit Industry Insurance Company
credit insurance policy and the notes and accounts receivable listed
on Schedule 2.2.1(a), attached hereto), minus the amount of the
Assumed Balance Sheet Liabilities, minus a reserve for bad debts
mutually agreed upon by Seller and Buyer as forth on Schedule
2.2.1(b), which shall include a reserve of $130,000 relating to ▇▇▇▇
receivables (the "Receivables Amount").
7. Section 3.1 of the Purchase Agreement shall be and hereby is
amended by deleting item (ii) from the last paragraph of Section 3.1 and
replacing it with the following: "(ii) $1,500,000.00 (Environmental Reports
Adjustment)."
8. Section 3.1 of the Purchase Agreement shall be and hereby is
amended by deleting item (iii) from the last paragraph of Section 3.1 and
replacing it with the following: "(iii) $70,000.00 (Loyal Fueler Adjustment)."
9. Section 6.1.5 of the Purchase Agreement shall be and hereby is
deleted in its entirety and the following shall be substituted therefor:
6.1.5 Good Standing. Buyer shall have received a certificate of
Seller's existence dated no earlier than November 19, 1998, from the
State of Oregon and, where applicable, good standing certificates
from Seller's state of incorporation and from each other state in
which Seller is qualified to do business as a foreign corporation,
and tax clearance certificate(s) from the State of Oregon, each of
which shall be of a date reasonably contemporaneous to the Closing
Date;
10. Section 8.2.5 of the Purchase Agreement shall be and hereby is
deleted in its entirety and the following shall be substituted therefor:
8.2.5 No Assignment. With the prior written consent of Seller, which
consent shall not be unreasonably withheld, Buyer may assign all or
any part of this Agreement and all or any part of its rights or
obligations hereunder to an Affiliate of Buyer, in which event,
Seller shall execute and deliver any documents reasonably requested
by the assignee(s) in connection with such assignments, but no such
assignment shall relieve Buyer of its obligations hereunder. Buyer
may, without the prior written consent of Seller, assign this
Agreement as part of the sale of all or substantially all of its
business or pursuant to a collateral assignment for the benefit of
The Chase Manhattan Bank, or any successor lender, as collateral
agent. Except as provided in the preceding sentences, and except as
provided in Section 8.2.6, no assignment by any party of this
Agreement or any right or obligation hereunder may be made without
the prior written consent of all other parties, which consent may be
withheld with or without cause, and any assignment attempted without
that consent will be void.
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11. Section 8.2.11 of the Purchase Agreement shall be and hereby is
amended by deleting $7,000,000 where it appears in subsections (a) and (b) and
replacing it with the following: "$5,500,000."
12. Sections 9.5(b) and 9.6(b) shall be and hereby are amended by
deleting $7,000,000 where is appears and replacing it with the following:
"$5,500,000."
13. Section 10.9 of the Purchase Agreement shall be and hereby is
deleted in its entirety and the following shall be substituted therefor:
If any provision of this Agreement or a Transaction Document or the
application of any such provision to any person or circumstances
shall be held invalid, illegal or unenforceable in any respect by a
court of competent jurisdiction, such invalidity, illegality or
unenforceability shall not effect any other provision hereof and
this Agreement or the Transaction Document, as applicable, shall
remain in force and be effectuated as if such illegal, invalid or
unenforceable provision is not part of such agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
of Asset Purchase Agreement as the date just written above.
▇▇▇▇▇ BROS., INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its: President
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TA OPERATING CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its: Senior Vice President
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