Exhibit 2.2
AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT, dated as of February 12,
1997 (this "Amendment"), is by and among SPACEHAB ACQUISITION CORP., a Delaware
corporation, as buyer ("Buyer"), SPACEHAB, INCORPORATED, a Washington
corporation ("SPACEHAB"), ASTROTECH SPACE OPERATIONS, L.P., a Delaware limited
partnership ("Seller"), and NORTHROP GRUMMAN CORPORATION, a Delaware corporation
("Parent").
Reference is made to the Asset Purchase Agreement dated February 5, 1997
(the "Asset Purchase Agreement") by and among Buyer, SPACEHAB, Seller and
Parent. Capitalized terms used herein without definition shall have the
respective meanings set forth in the Asset Purchase Agreement. Each of the
undersigned hereby agrees to the following with respect to the Asset Purchase
Agreement:
1. Inasmuch as Seller is unable to deliver all third-party consents and
approvals to transfer all of the Contracts to Buyer at the Closing as required
by Section 8.6 of the Asset Purchase Agreement, Buyer hereby agrees to waive
this closing condition in light of the agreement by Seller to permit Buyer full
use of any premises demised pursuant to any lease not yet effectively assigned
with all required third party consents until the earlier of (i) the date the
lease is so assigned or (ii) the date the lease expires in accordance with its
term, and to continue as prime contractor or customer on each Contract that has
not been effectively assigned and/or novated with all required consents of
third-parties, including but not limited to the following Contracts: NASA
Kennedy Space Center (Contract No. NAS10-12270); USAF Fuel Supply Agreement
(Vandenberg); USAF Fuel Supply Agreement (FL); McDonnell Douglas Astronautics
Company; Motorola, Inc.; and United Paradyne Corporation for a period ending on
the earlier of (i) the date on which all required consents for said Contract are
received and the assignment thereof becomes fully effective or (ii) the
expiration of said Contract. Seller covenants that it shall retain Buyer to
perform all work under said Contracts and to receive all benefits of said
Contracts, including but not limited to all monies received under said Contracts
(without any deduction for any reason, including but not limited to service
charges and overhead assessments other than actual costs payable to contracting
parties, including without limitation rental payments), and to receive any
materials or supplies under Contracts where Seller is the vendee. Seller further
agrees that it shall retain its legal existence in its current form during the
period that it is acting as the contracting party with any third-party pursuant
to this provision. In addition, Seller agrees that it will not terminate any
such Contract without the advance written permission of Buyer. Both Buyer and
Seller agree that they shall use their best efforts to accomplish all such
transfers and attendant consents as soon as is reasonably possible and to
provide the assistance provided in Section 7.3 of the Asset Purchase Agreement.
Buyer further agrees that it will defend and indemnify Seller and Parent against
any claim that may arise from any third-party as a result of the work it
undertakes during this sub-contracting arrangement or any obligation as vendee
from the Closing until such Contracts are assigned with all required consents to
Buyer in accordance with the terms of Buyer's indemnification under Section 10.3
et seq. of the Asset Purchase Agreement, except that the dollar limitations set
forth in Section 10.3 shall not apply to this specific indemnity. For purposes
of clarity, this specific indemnity shall extend to the end of any applicable
statute of limitations period.
2. In light of the fact that a survey of the Titusville, FL facility has
not yet been supplied to the title insurance company that is writing the policy
on this property and given that the title insurance company is noting an
exception to their policy based on whatever additional matters might be set
forth on said survey when it is delivered other than exceptions on Schedule B of
the title insurance policy (other than survey exceptions), Seller and Parent
agree to indemnify Buyer for any matters that may appear on the survey that
impact negatively the value of the property or its use that would require Buyer
to expend funds to remove the exception in accordance with the terms of the
Seller's and Parent's indemnification under Section 10.2 et seq. of the Asset
Purchase Agreement, except that the dollar limitations set forth in Section 10.2
shall not apply to this specific indemnity.
3. In all other respects, the Asset Purchase Agreement shall remain in full
force and effect.
This Amendment: (a) shall be construed and enforced in accordance with the
laws of the State of New York without giving effect to the choice of law
principles thereof; (b) shall inure to the benefit of and be binding upon the
successors and assigns of the parties hereto, nothing in this Amendment,
expressed or implied, being intended to confer upon any other person any rights
or remedies hereunder; and (c) may be executed in two or more counterparts, each
of which shall be deemed an original but all of which together shall constitute
one and the same instrument. The Section and other headings contained in this
Amendment are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Amendment.
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment
the day and year first above written.
SPACEHAB ACQUISITION CORP.
By: /s/ David Rossi
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Name: David Rossi
Title: Vice President
SPACEHAB, INCORPORATED
By: /s/ David Rossi
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Name: David Rossi
Title: Senior Vice President
ASTROTECH SPACE OPERATIONS, L.P.
By Astrotech Space Operations,
Incorporated,
its General Partner
By: /s/ D. H. Strode
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Name: D. H. Strode
Title: Attorney-in-Fact
NORTHROP GRUMMAN CORPORATION
By: /s/ John H. Mullan
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Name: John H. Mullan
Title: Attorney-in-Fact