EXHIBIT 2.2
FIRST AMENDMENT TO
ASSET PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT (this "Amendment"),
made and entered into on this 29 day of April, 1999, by and among Maine
Rubber Company, an Indiana corporation, Cascade Corporation, an Oregon
corporation, Cascade (Canada) Ltd., an Ontario corporation, Cascade (Ontario)
Inc., an Ontario corporation, and ITL Industrial Tires, Inc., a Delaware
corporation,
WITNESSETH THAT:
WHEREAS, the parties hereto entered into an Asset Purchase Agreement
(the "Agreement") dated as of April 6, 1999 pursuant to which Purchaser
agreed to acquire substantially all of the assets of the Business (all
initially capitalized terms used herein shall have the meanings ascribed to
them in the Agreement); and
WHEREAS, the parties to the Agreement desire to amend the Agreement on
the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Exhibit C to the Agreement be and hereby is amended in its entirety
so that the form of Junior Subordinated Note to be delivered pursuant to
Section 2.7 (a) (ii) of the Agreement shall be as set forth in EXHIBIT A to
this Amendment.
2. Schedule 5.17 to the Agreement be and hereby is amended to include
the following language in subpart A thereof:
"Ministry of Environment Certificate of Air Approval 8-3256-90-916
Ministry of Environment Certificate of Air Approval 8-3254-90-916"
3. The Agreement be and hereby is amended to provide that in addition
to Purchaser's obligation to assume the liabilities described in Section 2.5
of the Agreement, upon the Closing, Purchaser shall also assume the
obligations of Sellers under the agreement relating to the employment of
Henno Plaggenbord, a copy of which is attached hereto as EXHIBIT B, as if the
same were specifically described as an assumed obligation in Section 2.5 of
the Agreement.
4. Notwithstanding the failure of the Sellers to fulfill certain of
the conditions precedent to Closing set forth in Article 9 of the Agreement,
as more fully described in EXHIBIT C hereto (the "Outstanding Conditions"),
Purchaser and the Sellers (and each of them) hereby agree to consummate the
Closing; PROVIDED, HOWEVER, THAT the Sellers shall fulfill each of the
Outstanding Conditions as soon after Closing Date as is practicable;
PROVIDED, FURTHER, THAT Purchaser's consummation of the Closing
notwithstanding the Seller's failure to fulfill the Outstanding
Conditions at or prior to Closing shall not be deemed a waiver of the
Outstanding Conditions; PROVIDED, FURTHER, THAT the Sellers (and each of
them) shall fully and completely indemnify and hold Purchaser harmless from
all costs and losses relating to such failure as if such failure were an
Indemnifiable Loss (as defined in the Agreement), except that indemnification
for Indemnifiable Losses arising out of the Outstanding Conditions shall not
be subject to the Deductible Amount or to the limitations set forth in
Section 12.1 (f) of the Agreement and Purchaser shall not be required to
first offset any such Indemnifiable Losses against any payments it is
obligated to make under the Note; PROVIDED, FURTHER, THAT the foregoing
indemnity provision shall not apply with respect to any matter which is
subject to indemnification pursuant to Section 2.8(b) of the Agreement.
5. All other terms, conditions and provisions of the Agreement not
herein amended shall remain in full force and effect as provided in the
Agreement.
IN WITNESS WHEREOF, Parent, on its behalf and on behalf of each of the
other Sellers pursuant to Section 3.4 of the Agreement, has caused this
Amendment to be executed on the day and year first above written.
Maine Rubber Company Cascade Corporation, for itself and
as attorney-in-fact for each of the
other Sellers
By: By:
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Xxxxxx X. Xxxxx, President
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Printed Name, Title
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