EXHIBIT 2.3
SECOND AMENDING AGREEMENT
Second Amending Agreement (the "AGREEMENT") dated as of February 11, 2005
between Bolton Steel Tube Go. 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 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,
as such Asset Purchase Agreement is amended by a First Amending Agreement dated
as of December 15, 2004 between the same parties (together, the "PURCHASE
AGREEMENT");
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), 1.6(d) and 1.8 of the Purchase Agreement to "February 15, 2005" are
hereby all amended to refer to "February 18, 2005".
SECTION 3 AMENDMENTS TO PURCHASE AGREEMENT.
(1) AMENDMENT TO SECTION 1.10A
Section 1.10A of the Purchase Agreement is hereby amended by deleting the
words "up to an aggregate maximum of Eight Million Five Hundred Thousand
($8,500,000) Dollars", such that the note and security of Seller referred to in
such Section shall be subordinated to the first security position of Purchaser's
senior financial institutional lender, subject to the satisfaction of the
condition of Closing in favour of the Seller that the Seller (i) must be
satisfied on or prior to Closing with the terms and conditions of the
Purchaser's loan agreement and all related security and other documentation with
such senior financial institutional lender, and (ii) must have entered into
subordination and postponement arrangements with such senior financial
institutional lender that are acceptable to the Seller.
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Purchaser hereby agrees to deliver to Seller copies of the Purchaser's
loan agreement and all related security and other documentation with the senior
financial institutional lender referred to in the above paragraph as soon as
possible but in any event no later than February 15, 2005.
(2) ADDITIONAL CONDITIONS OF CLOSING
The Purchase Agreement is hereby amended by adding the following
conditions of closing in favour of Seller to Article VII:
"7.8 Seller and Purchaser shall have executed and delivered a
purchase and services agreement whereby (x) Purchaser will sell
tubing and raw material to Seller as and when requested on a
purchase order basis, and (y) Purchaser will provide "slitting"
services to Seller, such agreement to have a term of one year from
the Closing Date and to be in the form or substantially in the form
of Exhibit "A" annexed with such amendments thereto as are
reasonably required by the Seller and reasonably acceptable to the
Purchaser.
7.9 Purchaser shall pay by certified cheque or bankers' draft all
amounts due and owing by Purchaser or Steelbank Inc. to Seller on
the Closing Date for goods and services delivered or provided by
Seller to either of such entities in the ordinary course, such
amounts being estimated to be approximately $190,000.00 in the
aggregate.
7.10 The Seller on the one hand and Messrs. Xxxxxx, Xxxxxxx and
Xxxxxxxxx on the other hand shall have executed and delivered a
priorities agreement containing terms and provisions confirming the
ranking of security and indebtedness, as well as the entitlement to
and order of payments from the Purchaser that is in form and content
acceptable to Seller, acting reasonably; provided that the Seller
agrees that in such agreement the Seller shall agree that the
security granted to it by the Purchaser pursuant to this Purchase
Agreement shall rank in equal priority, on a pari passu basis and
behind the senior financial institutional lender of the Purchaser,
to the security granted to each of Messrs. Xxxxxx, Xxxxxxx and
Xxxxxxxxx with respect to three separate promissory notes, each in
the principal amount of $135,000; and the Purchaser shall have
received copies of all documentation in connection with such
indebtedness and security as it shall reasonably request."
7.11 If Purchaser's senior financial institutional lender requires,
as a condition of extending financing to Purchaser, 1387746 Ontario
Inc. to execute any landlord waiver, Seller must be satisfied,
acting reasonably, with the form and content of any such landlord
waiver
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and such waiver must include an arrangement with such senior
financial institutional lender of the rent owing under the lease of
the 0000 Xxxxxx Xxxx Premises in a form acceptable to the Seller.
SECTION 4 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.
SECTION 5 GOVERNING LAW.
This Agreement shall be governed by the laws of the Province of Ontario
and the federal laws of Canada applicable therein.
SECTION 6 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 7 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.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the date first above written.
BST ACQUISITION, LTD.
By: /s/ XXXXXXX X. XXXXX
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Name: XXXXXXX X. XXXXX
Title:
XXXXXX STEEL TUBE CO. LTD.
By: /s/ XXXXXXX XXXXX
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Name:
Title:
/s/ [ILLEGIBLE] /s/ XXXXXXX XXXXX
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WITNESS XXXXXXX XXXXX
/s/ [ILLEGIBLE] /s/ XXXXX XXXXX
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WITNESS XXXXX XXXXX