THIRD AMENDMENT TO MEMBERSHIP INTERESTS AND PARTNERSHIP INTERESTS PURCHASE AGREEMENT

 

This THIRD AMENDMENT TO MEMBERSHIP INTERESTS AND PARTNERSHIP INTERESTS PURCHASE AGREEMENT (this “Amendment”) is made and effective as of this 9th day of May, 2014, by and between ALAMO GROUP (USA) INC., a Delaware corporation (“Purchaser”), SPECIALIZED INDUSTRIES LP, a Delaware limited partnership (“Seller”), and ALAMO GROUP INC., a Delaware corporation (“Parent”).

 

 

A.           Purchaser, Seller and, for purposes of Section 11.17 thereof, Parent are parties to that certain Membership Interests and Partnership Interests Purchase Agreement, dated as of February 24, 2014, as amended by that certain First Amendment to Membership Interests and Partnership Interests Purchase Agreement dated as of March 3, 2014 and that certain Second Amendment to Membership Interests and Partnership Interests Purchase Agreement dated April 11, 2014 (as amended, the “Purchase Agreement”), pursuant to which Purchaser has agreed to purchase from Seller (i) all the Capital Stock of Howard P. Fairfield, LLC, a Delaware limited liability company, Fond du Lac Investments, LLC, a Wisconsin limited liability company, Super Products LLC, a Delaware limited liability company, and Wausau-Everest GP, LLC, a Delaware limited liability company, and (ii) all the limited partnership interests of Wausau-Everest L.P., a Delaware limited partnership. Capitalized terms used but not defined herein shall have the meanings given to them in the Purchase Agreement.

 

B.           Effective as of the date of this Amendment, Purchaser and Seller desire to amend the Purchase Agreement as provided for herein.

 

 

NOW, THEREFORE, in consideration of the mutual promises of the parties contained in this Amendment and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound hereby, the parties hereto agree as follows:

 

1.   Section 1.1(r).  Effective as of the date of this Amendment, clause (ii)(b) of Section 1.1(r) (Fundamental Seller Obligations) of the Purchase Agreement is hereby amended and restated in its entirety to read as follows: “(b) any Profits Interests Payments and Bonus Payments that are not fully paid at or before Closing or included in the Closing Net Assets.”

 

2.   Sections 1.3(c) and 1.3(d).  Effective as of the date of this Amendment, Section 1.3(c) and Section 1.3(d) are hereby amended and restated in their entirety as follows:

 

“(c)   Third, Purchaser shall pay, on behalf of Seller, to the holders of profits interests in Seller, the amounts set forth on Exhibit B via wire transfer of immediately available funds (the “Profits Interests Payments”).

 

(d)   Fourth, the Purchaser shall pay to Seller by wire transfer of immediately available funds to the account designated in writing by Seller to Purchaser an amount equal to the Closing Purchase Price, minus the Closing Debt Payment, Escrow Deposit and Profits Interests Payments.”

 

 

 

 

 

3.   Section 1.4.  Effective as of the date of this Amendment, Section 1.4 of the Purchase Agreement is hereby amended and restated in its entirety to read as follows:

 

“Closing.  The consummation of the transactions contemplated by this Agreement (the “Closing”) shall take place at 10:00 a.m., Central Time, at the offices of Purchaser on the date that is five (5) Business Days following the termination of the applicable waiting period under the HSR Act, or at such other time, date and place as may be mutually agreed upon by the Parties (the “Closing Date”). The Closing with respect to the transfer of the Transferred Interests shall be deemed to have occurred and to be effective as between the Parties as of 11:59 p.m. Central Time on the Closing Date (the “Effective Time”).  The Parties intend and agree that the transactions contemplated herein to be taken by the Parties at the Closing shall, for all purposes, be deemed to have occurred as of the Effective Time.”

 

4.   Section 1.5(d).  Effective as of the date of this Amendment, Section 1.5(d) of the Purchase Agreement is hereby amended and restated in its entirety to read as follows:

 

“(d)   executed payoff letter in a form reasonably acceptable to the Purchaser, executed by each Person holding Debt of the Transferred Entities to be repaid at Closing as reflected on the Closing Financial Certificate and evidence reasonably satisfactory to the Purchaser that all Encumbrances (other than Permitted Encumbrances) related to such Debt shall have been released prior or shall be released simultaneously with or promptly after the Closing; and executed releases in a form reasonably acceptable to the Purchaser, executed by each Person receiving a Bonus Payment at or before the Closing;”

 

5.   Section 1.5(q).  Effective as of the date of this Amendment, a new Section 1.5(q) is inserted immediately after Section 1.5(p) of the Purchase Agreement that reads as follows:

 

“(q)   evidence reasonably satisfactory to the Purchaser that the Bonus Payments have been paid.”

 

6.   Section 1.6(c).  Effective as of the date of this Amendment, Section 1.6(c) of the Purchase Agreement is hereby amended and restated in its entirety to read as follows:

 

“(c)   to the Persons set forth on Exhibit B, payments of the Profits Interests Payments;”

 

7. Section 1.8.  Effective as of the date of this Amendment, a new Section 1.8 is inserted immediately after Section 1.7 of the Purchase Agreement that reads as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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