Amendment No. 3 to Asset Purchase Agreement
AMENDMENT NO. 3, dated as of August 1, 2001, (this "Amendment"), to the
Asset Purchase Agreement, dated as of November 30, 2000, as amended (the
"Purchase Agreement"), by and among Union Espanola de Explosivos S.A.
("Parent"), a Spanish S.A., Union Espanola de Explosivos-MSI International,
S.A., a Spanish S.A. ("Purchaser"), Mining Services International, Inc., a
Delaware corporation and successor to UMSI Acquisition Co., a Delaware
corporation ("Purchaser's Subsidiary"), and Mining Services International
Corporation, a Utah corporation ("Seller", and together with Parent, Purchaser
and Purchaser's Subsidiary, the "Parties"). Capitalized terms not otherwise
defined herein have the respective meanings set forth in the Purchase Agreement.
W I T N E S S E T H :
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WHEREAS, the Parties desire to exercise their right pursuant to Section
10.2 of the Purchase Agreement to amend the Purchase Agreement as set forth
below; and
WHEREAS, the Parties desire to work together to re-file the proxy
statement with the SEC as soon as practicable, with a target date for filing of
August 8, 2001;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereby agree as follows:
1. Amendment to Section 3.3(a) of the Purchase Agreement. The dollar
amount "seven million seven hundred thousand and fifty dollars
($7,750,000)" appearing in subsection (a) of Section 3.3 of the
Purchase Agreement hereby is replaced with the dollar amount "six
million three hundred and fifty thousand dollars ($6,350,000)".
2. Amendment to Article VI of the Purchase Agreement. Article VI of the
Purchase Agreement hereby is amended to add the following new
Sections6.24 and 6.25:
"Section 6.24. Satisfaction of Certain Conditions. Without limiting or
amending the existing relative responsibilities of the Parties already set forth
in the Purchase Agreement, the Parties agree to cooperate with each other and to
use their commercially reasonable efforts to satisfy the conditions to Closing
set forth in Sections 7.2(c), 7.2(g), and 7.3(g) on or before August 31, 2001."
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"Section 6.25 Bridge Financing. In the event that at the Closing the
Line of Credit has not been obtained, Seller will at the request of Purchaser
provide Purchaser and Purchaser's Subsidiary with a sixty day working capital
facility in an amount of up to $4.5 million and with an interest rate equal to
the prime rate as published by Xxxxx Fargo." The working capital facility will
be secured on the same basis as the current line of credit and Seller will have
the same lien priority status as Xxxxx Fargo held under the current line of
credit."
3. Amendment to Section 8.1(c) of the Purchase Agreement. Subsection (c)
of Section 8.1 of the Purchase Agreement is hereby amended and restated
in its entirety to read as follows:
"(c) By either Purchaser, Purchaser's Subsidiary or Seller upon written
notice given to the other party in the event that the Closing shall not have
taken place on or before October 31, 2001; provided, that the failure of the
Closing to occur on or before such date is not the result of a breach of any
covenant, agreement, representation or warranty hereunder by the party seeking
such termination;"
4. Amendment to Section 8.1 of the Purchase Agreement. Section 8.1 of the
Purchase Agreement hereby is amended by adding a semi-colon (;) at the
end of subsection 8.1(f) and by adding the following new subsection
(g):
"(g) By Seller upon written notice in the event that any of the
conditions to Closing set forth in Sections 7.2(c) (including the Maine Drilling
Consent), 7.2(g) or 7.3(g) shall not have been satisfied and/or waived by
Parent, Purchaser and Purchaser's Subsidiary on or before August 31, 2001;
provided, that the failure to satisfy such conditions on or before such date is
not the result of a material breach of any covenant, agreement, representation
or warranty hereunder by the party seeking such termination; and"
5. Amendment to Section 8.1 of the Purchase Agreement. Section 8.1 of the
Purchase Agreement hereby is amended to add the following new
subsection (h):
"(h) By either Purchaser or Purchaser's Subsidiary upon written notice
in the event that any of the conditions to Closing set forth in Sections 7.2(c),
7.2(g) or 7.3(g) shall not have been satisfied and/or waived by Seller on or
before August 31, 2001; provided, that the failure to satisfy such conditions on
or before such date is not the result of a material breach of any covenant,
agreement, representation or warranty hereunder by the party seeking such
termination."
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Miscellaneous.
a. Ratification of Purchase Agreement. Except as specifically provided in
this Amendment and without waiving any rights of the Parties
thereunder, the parties specifically ratify, confirm, and adopt as
binding and enforceable, all of the terms and conditions of the
Purchase Agreement.
b. Effect on Purchase Agreement. The amendments to the Purchase Agreement
contemplated by this Amendment are limited precisely as written and
shall not be deemed to be an amendment to any other terms or conditions
of the Purchase Agreement. The Purchase Agreement shall continue in
full force and effect as amended by this Amendment. From and after the
date hereof, all references to the Purchase Agreement shall be deemed
to mean the Purchase Agreement as amended by this Amendment.
c. Governing Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED UNDER
THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO ANY CONFLICTS OF
LAWS PROVISIONS THEREOF.
d. Headings. The section headings in this Amendment are intended solely
for convenience and shall be given no effect in the construction and
interpretation hereof.
e. Counterparts. This Amendment may be executed in one or more
counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the
same agreement.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, Parent, Purchaser, Purchaser's Subsidiary and
Seller have executed this Amendment No. 3 to the Purchase Agreement or caused
this Amendment No. 3 to the Purchase Agreement to be executed by their
respective officers thereunto duly authorized as of the date first written
above.
UNION ESPANOLA DE EXPLOSIVOS S.A.
By
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Name: Xxxx X. Xxxxxxx-Xxxxx
Title: Chairman and CEO
MINING SERVICES INTERNATIONAL, INC.
By _______________________________
Name: Xxxx X. Xxxxxxx-Xxxxx
Title: President
UNION ESPANOLA DE EXPLOSIVOS-MSI
INTERNATIONAL, S.A.
By _______________________________
Name: Xxxx X. Xxxxxxx-Xxxxx
Title: Chairman
MINING SERVICES INTERNATIONAL
CORPORATION
By
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Name: Xxxx X. Day
Title: President
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