Exhibit 10.3
AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT is dated as of July
31, 1991, by and among CELITE HOLDINGS CORPORATION, a Delaware corporation ("New
Celite"), CELITE CORPORATION, a Delaware corporation and a wholly-owned
subsidiary of New Celite ("Buyer"), and MANVILLE SALES CORPORATION, a Delaware
corporation ("Seller").
WITNESSETH:
WHEREAS, Seller, Buyer and New Celite have heretofore entered into
that certain Asset Purchase Agreement dated as of July 1, 1991 ("Agreement"),
pursuant to which Seller agreed to sell and convey to Buyer certain properties
assets; and
WHEREAS, Seller, Buyer and New Celite desire to amend the Agreement
as provided herein;
NOW, THEREFORE, the parties hereto agree as follows:
1. Amendment of Section 4.10(a). Section 4.10(a) of the Agreement is
hereby amended to provide that, in addition to the representations and
warranties contained therein, Seller hereby represents and warrants to Buyer and
New Celite that Seller has good and marketable title to the patented mining
claims at No Agua, New Mexico described in Schedule 4.10 to the Agreement
("Patented Mining Claims"). Notwithstanding anything to the contrary contained
in the Agreement, the foregoing representation and warranty shall expire as of
the earlier of (i) the expiration of the survival period provided for in Section
9.01 to the Agreement, or (ii) the date on which the Title Insurer shall issue
to Buyer an ALTA Owner's Policy of title insurance for the Patented Mining
Claims in the amount of Four Million Seven Hundred Ninety-Five Thousand Dollars
($4,795,000), subject only to the Title Insurer's pro forma exclusions, liens
for Taxes not yet due and payable and such other exclusions from coverage as do
not materially adversely affect the use or value of the Patented Mining Claims
as currently used or reserved for use, together with a mechanics' lien
indorsement acceptable to Buyer and such other indorsements as Buyer shall have
reasonably requested ("Mining Claims Title Policy").
2. Amendment of Section 7.09. Section 7.09 of the Agreement is
hereby amended to provide that the Title Insurer's commitment to issue the
Mining Claims Title Policy at or prior to the Closing shall not be a condition
to Buyer's obligations under the Agreement.
3. Indemnification. The $650,000 threshold on Claims provided for in
Section 9.02(b)(i) of the Agreement shall not apply to a Claim incurred by a
Buyer Indemnitee under Section 9.02(a)(i) of the Agreement by reason of a breach
of the representation and warranty contained in Section 1 of this Amendment.
Notwithstanding the provisions of Section 9.02(b)(ii) of the Agreement, any
claim for indemnification with respect to any such Claim shall be made within
the period of time provided for in Section 1 of this Amendment.
4. Capitalized Terms. Unless otherwise defined herein, capitalized
terms used in this Amendment shall have the meanings attributed to them in the
Agreement.
5. Limitation on Amendment. Except as modified by this Amendment,
all of the terms and conditions contained in the Agreement shall remain in full
force and effect and hereby ratified and confirmed.
IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered by the duly authorized officers on New Celite, Buyer and Seller of the
date first above written.
CELITE HOLDINGS CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
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CELITE CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
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MANVILLE SALES CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
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