Exhibit 2.8
FIRST AMENDING AGREEMENT
First Amending Agreement (the "AGREEMENT") dated as of December 15, 2004
between Bolton Steel Tube Co. Ltd., an Ontario corporation (the "SELLER"), BST
Acquisition, Ltd., a New Brunswick corporation (the "PURCHASER") and Xxxxxxx
Xxxxx and Xxxxx Xxxxx, Executives (together, the "PRINCIPALS").
RECITALS
WHEREAS the Seller, Purchaser and Principals are parties to an Asset
Purchase Agreement dated on or about July 22, 2004 (the "PURCHASE AGREEMENT")
pursuant to which Seller has agreed to sell and Purchaser has agreed to purchase
substantially all of the assets and business of Seller located at 0000 Xxxxxx
Xx., Xxxxxxxxxxx, Xxxxxxx;
AND WHEREAS the parties hereto wish to amend the terms of the Purchase
Agreement in the manner set forth herein;
NOW THEREFORE in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by each party, the parties hereto do hereby agree as follows:
SECTION 1 DEFINED TERMS.
Capitalized terms used in this Agreement and not otherwise defined herein
shall have the meanings specified in the Purchase Agreement.
SECTION 2 EXTENSION OF OUTSIDE CLOSING DATE.
The parties agree that the references in Sections 1.1, 1.6(a), 1.6(b),
1.6(c) and 1.8 of the Purchase Agreement to "December 15, 2004" and the
reference in Section 1.6(d) of the Purchase Agreement to "December 31, 2004",
are hereby all amended to refer to "February 15, 2005".
SECTION 3 PAYMENT OF SELLERS OUT-OF-POCKET EXPENSES.
(1) Purchaser hereby further agrees to pay to Seller by certified cheque or
bank draft, at Closing, the following incremental out-of-pocket expenses
or costs of Seller, against delivery of invoices or other reasonable
evidence of Seller having incurred such costs or expenses:
Estimated Amounts
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Equipment for Xxxxxx Xx. purchased after June/04 $100,000
ABN-Amro (audit fees) 10,000
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ABN-Amro (renewal fees) 5,000
Computer costs (re: Mississauga) 5,000
December Statutory Holidays
34,000
Exhaust Units
43,000
Furniture (not included, in Excess Steel appraisal) 28,000
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$225,000
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(2) The parties agree to update, on or prior to the Closing Date, the
Schedules to the Purchase Agreement to reflect the additional Purchased
Assets referred to above.
SECTION 4 INVENTORY.
(1) For greater certainty, Seller can continue to purchase steel inventory
in the ordinary course for use in the Business from the date hereof to
the Closing Date provided, however, that Purchaser must approve, acting
reasonably and in a timely manner, any purchase order for any such
purchases (which purchase orders shall specify the supplier, the type
of steel, the purchase price and other material terms, including date
of delivery). In no event shall any such purchases of steel inventory
exceed 1500 tons for such period.
(2) Notwithstanding Section 1.7(e) of the Purchase Agreement Purchaser
hereby agrees to pay the greater of (i) fair market value and (ii) the
laid-down cost of any such inventory purchased during such period which
otherwise constitutes Purchased Inventory.
SECTION 5 CONFIRMATION.
Except as otherwise amended hereby, the Purchase Agreement shall remain
in full force and effect in accordance with its terms. From and following the
date hereof, each reference in the Purchase Agreement to "this Agreement" and
each reference to the Purchase Agreement in any and all other agreements,
documents and instruments delivered by Seller, Purchaser and Principals or any
other Person shall mean and be a reference to the Purchase Agreement as amended
by this Agreement. The parties further agree that the Specified 45th Date
referred to in Section 1.6(a) of the Purchase Agreement is September 7, 2004.
SECTION 6 GOVERNING LAW.
This Agreement shall be governed by the laws of the Province of
Ontario
and the federal laws of Canada applicable therein.
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SECTION 7 CONFLICT OR INCONSISTENCY.
In the event there is any conflict or inconsistency between the
provisions of this Agreement and any of the provisions of the Purchase
Agreement, the provisions of this Agreement shall prevail.
SECTION 8 COUNTERPARTS.
This Agreement may be executed in any number of counterparts
(including counterparts by facsimile), each of which when so executed shall be
deemed to be an original and the counterparts together shall constitute one and
the same agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the date first above written.
BST ACQUISITION, LTD.
By: /s/ Xxxxx Xxxxxxxx
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Name:
Title: Chairman
XXXXXX STEEL TUBE CO. LTD.
By: /s/ Xxxxx Xxxxxxxx
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Name:
Title: Chairman
/s/ Xxxxxxx Xxxxx
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WITNESS XXXXXXX XXXXX
/s/ Xxxxx Xxxxx
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WITNESS XXXXX XXXXX
