AMENDMENT TO ASSET PURCHASE AGREEMENT

AMENDMENT TO ASSET PURCHASE AGREEMENT

THIS AGREEMENT is entered into this 7^th day of November, 2007,

 

 

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WHEREAS under the terms of an asset purchase agreement (the "Asset Purchase Agreement") between the Purchaser, the Vendor and the Guarantors dated as of September 26, 2007, the Vendor agreed to sell and the Purchaser agreed to purchase all of the Purchased Assets in consideration for the Purchase Price, under the terms and conditions therein set forth;

WHEREAS the parties had agreed at Section 3.2(a) of the Asset Purchase Agreement that HKSub would satisfy a portion of the Purchase Price payable for the WW Limited Assets at the Closing Date through: (i) the assumption of the WW Limited Liabilities, which were to include, without limitation, the Banking Facilities of WW Limited (the "WW Limited Bank Debt") and the liabilities of WW Limited under issued and unsettled cheques of WW Limited (the "WW Limited Cheque Indebtedness"); and (ii) the payment to WW Limited of $49,930,000 in cash (the "▇▇ ▇▇▇▇ Payment");

WHEREAS under the terms of the Asset Purchase Agreement, the WW Limited Assets to be purchased by HKSub were to include the Cash Balance of WW Limited (the "WW Limited Cash Balance");

WHEREAS, to simplify the payment of the Purchase Price payable to WW Limited, Optimal and the Vendor agree that the ▇▇ ▇▇▇▇ Payment payable on Closing shall be reduced by US$8,429,764 (the "Net Cash Amount"), being the difference between (A) the WW Limited Cash Balance of US$20,260,932 and (B) the sum of the WW Limited Bank Debt of US$11,579,772 and the WW Limited Cheque Indebtedness of US$251,396, resulting in a cash payment to WW Limited on Closing of US$41,500,236 (the "WW Closing Cash Payment");

WHEREAS to simplify the payment of the Purchase Price payable to WW Group on Closing, WW Group shall retain the liability for the issued and unsettled cheques of WW Group together with cash of an equal amount;

WHEREAS to simplify the payment of the Purchase Price payable to WW Marketing on Closing, WW Marketing shall retain the liability for the issued and unsettled cheques of WW Marketing together with cash of an equal amount;

 

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WHEREAS the parties wish to amend the Asset Purchase Agreement in order to give effect to the foregoing.

THEREFORE, THE PARTIES AGREE AS FOLLOWS:

1.                      On Closing, HKSub shall pay WW Limited the WW Closing Cash Payment in lieu of the ▇▇ ▇▇▇▇ Payment.

2.                     The parties hereby agree and acknowledge that HKSub shall no longer be responsible for the assumption or payment of, and the WW Limited Liabilities shall no longer include, the Banking Facilities of WW Limited or the WW Limited Cheque Indebtedness.

3.                     The parties hereby agree and acknowledge that Cansub shall no longer be responsible for the assumption or payment of, and the WW Group Liabilities shall no longer include, the Banking Facilities of WW Group or the issued and unsettled cheques of WW Group.

4.                     The parties hereby agree and acknowledge that USSub shall no longer be responsible for the assumption or payment of, and the WW Marketing Liabilities shall no longer include, the Banking Facilities of WW Marketing or the issued and unsettled cheques of WW Marketing.

5.                     The parties agree that the amount of the Cash Balance to be transferred by WW Group to Cansub on Closing shall be the difference between (A) the actual Cash Balance of WW Group and (B) the sum of the Banking Facilities of WW Group and the issued and unsettled cheques of WW Group.

6.                     The parties agree that the amount of the Cash Balance to be transferred by WW Marketing to USSub on Closing shall be the difference between (A) the actual Cash Balance of WW Marketing and (B) the sum of the Banking Facilities of WW Marketing and the issued and unsettled cheques of WW Marketing.

7.                     The Vendor agrees that, from time to time, at the request of Optimal, it shall draw on the export letters of credit held by it in respect of purchase orders received by the Vendor prior to Closing which are satisfied by Purchaser following Closing.

8.                     The Vendor agrees that any amounts collected or otherwise received by it that form part of the Purchased Assets, including amounts drawn on export letters of credit pursuant to Section 5 above, shall be remitted to Optimal (or as it may direct) within seven (7) days.

9.                     Unless the context otherwise requires, capitalized words and phrases used herein shall have the meanings ascribed to them in the Asset Purchase Agreement.

10.                   This amendment supersedes all prior written or verbal agreements or undertakings between the parties as relates to the payment of the Purchase Price by HK Sub to WW Limited. Save as hereby amended, the Asset Purchase Agreement remains in full force and effect in accordance with its terms.

 

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11.                   This Agreement is a contract made under and shall be governed by and construed in accordance with the laws of the Province of Québec and the federal laws of Canada applicable in the Province of Québec.

12.                   Optimal shall be entitled to assign all of its rights and obligations under this Agreement to HKSub, Cansub and/or USSub. In such case, such assignee shall have and may exercise all the rights, and shall assume all of the obligations, of Optimal under this Agreement, except that such assignment shall not release Optimal from liability for its obligations under this Agreement. Except for such permitted assignment, no party may assign this Agreement or any of the benefits, rights or obligations under this Agreement or enter into any participation agreement with respect to the benefits under this Agreement without the prior written consent of the other Parties.

13.                   This Agreement may be executed by the parties in counterparts and may be executed and delivered by facsimile and all such counterparts and facsimiles together constitute one and the same agreement.

14.                   The parties acknowledge that they have required that this Agreement be drafted in English. Les parties reconnaissent avoir exigé que la présente convention soit rédigée en anglais.

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The Parties have executed this Agreement as of the aforementioned date.

 

 

 

 

 

 

Amendment to Asset Purchase Agreement

 

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Amendment to Asset Purchase Agreement