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EXHIBIT 10.41
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement"), dated as of
December 1, 1997, is entered into between CONSOLIDATED CAPITAL OF NORTH
AMERICA, INC., a Colorado corporation ("Purchaser"), and CAPITOL METALS CO.,
INC., a California corporation ("Seller").
A. Seller is in the business of supplying and processing
flat rolled steel for use in the manufacture of consumer goods (the
"Business"). The principal customers of Seller are steel suppliers and
manufacturers throughout the United States.
B. On October 7, 1997 (the "Petition Date"), Seller
filed a voluntary petition under chapter 11 of the Bankruptcy Code. Seller's
chapter 11 case (the "Chapter 11 Case") is now pending in the U.S. Bankruptcy
Court, Central District of California, as Case No. LA 97-48259-KM. Seller
remains in possession of its assets and continues to operate the Business as a
debtor-in-possession under the Bankruptcy Code.
C. On November 26, 1997, the Bankruptcy Court entered
the Order Approving Overbid Procedures and Topping Fee Arrangements Re Sale of
Substantially All of Assets of Debtor (the "Sale Procedures Order").
Substantially all of the assets of Seller are to be sold pursuant to the Sale
Procedures Order and the terms and conditions in this Agreement.
D. Purchaser desires to purchase substantially all of
the assets of Seller and to assume certain liabilities of Seller, upon the
terms and conditions set forth in this Agreement.
E. Upon the execution and delivery of this Agreement by
Purchaser in accordance with the Sale Procedures Order, this Agreement shall
constitute an irrevocable offer by Purchaser to purchase substantially all of
the assets of Seller and assume certain liabilities of Seller upon the terms
and conditions set forth herein, which offer shall be deemed accepted by Seller
upon the entry by the Bankruptcy Court of an order approving the sale to
Purchaser and the terms and conditions of this Agreement (the "Sale Approval
Order").
NOW, THEREFORE, in consideration of the recitals and of the
terms and conditions set forth below, the parties hereby agree as follows:
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1. PURCHASE AND SALE
1.1 Agreement to Purchase and Sell. Subject to all of
the terms and conditions of this Agreement, at the Closing (as defined in
Section 2.1), Seller shall sell, transfer and deliver to Purchaser, and
Purchaser shall purchase, all right, title and interest of Seller in and to all
of the Assets (as defined in Section 1.2), free and clear of all mortgages,
liens, security interests and encumbrances except Permitted Liens (as defined
in Section 3.4).
1.2 Assets to be Sold. The term "Assets" shall mean all
of the assets, properties and rights of Seller used directly or indirectly in
the conduct of, or generated by or constituting, the Business, except as
expressly set forth in Section 1.3, including, without limitation:
(a) except as provided in Section 1.3(b), all cash and
cash equivalents, in transit, in hand or in bank accounts, all checks,
drafts, certificates of deposit, treasury securities and investments
(collectively, "Cash");
(b) all notes, receivables, accounts receivable and
unbilled charges and fees;
(c) all supplies, raw materials, spare parts,
work-in-process, finished goods and other inventories;
(d) all prepaid items and deposits held by third parties;
(e) all machinery, equipment, tools, vehicles, furniture,
furnishings, leasehold improvements, goods and other tangible personal
property;
(f) to the extent permitted by applicable law and except
as provided in Section 1.3(d) and 1.5(a)(ii), all rights under any
written or oral contract, agreement, lease, sublease, instrument,
license, certificate of occupancy, operating permit or any other
permit or approval of any nature, or other document, commitment,
arrangement, undertaking, practice or authorization;
(g) all of Seller's right, title and interest in and to
the name "Capitol Metals Co., Inc.";
(h) all rights under any trademark, service ▇▇▇▇, trade
name or copyright, whether registered or unregistered, and any
applications therefor;
(i) all technologies, methods, formulations, data bases,
trade secrets, know-how, inventions and other intellectual property
used in the Business or under development;
(j) except as provided in Section 1.3, and subject to
Section 12.3, all information, files, accounts, books, records, data
and plans related to the Business, including customer and supplier
lists; and
(k) the Seller's Business as a going concern and its
goodwill.
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1.3 Excluded Assets. Notwithstanding the foregoing, the
term "Assets" shall not include any of the following, and the term "Excluded
Assets" shall refer collectively to:
(a) the items set forth on Schedule 1.3;
(b) an amount of Cash sufficient, in the Seller's sole
discretion, to pay (i) all expenses, liabilities and obligations of
Seller which arose in the regular and ordinary course of the Business
before the Closing Date, other than those referred to in Section
1.5(b)(i)(A) and 1.5(b)(i)(B); (ii) all liabilities and obligations of
Seller under the Contracts (as defined in Section 1.5(a)(ii)) which
arose or relate to time periods before the Closing Date, and (iii) all
expenses of Seller incurred in connection with the sale of the Assets,
including expenses incurred by Seller's counsel but not including any
professional fees;
(c) the corporate seal, certificate of incorporation,
minute books, stock transfer records, tax returns, books of account
and other records having to do with the corporate organization of
Seller;
(d) ▇▇▇▇▇▇ ▇. Eget's personal Lexus automobile;
(e) all claims, rights of action and choses in action of
Seller that arose or accrued or relate to time periods prior to
Closing;
(f) all rights accruing to Seller under this Agreement,
and
(g) any other item that Seller and Purchaser may agree is
an "Excluded Asset" and is set forth on an amendment or supplement to
Schedule 1.3 at or prior to Closing.
1.4 Purchase Price. As consideration for the purchase of
the Assets:
(a) Upon execution hereof, Purchaser shall pay to Seller
a cash deposit in the amount of $25,000 (the "Deposit"), which shall
be held by Seller's counsel in its client trust account. If the
Closing occurs, the Deposit shall be credited against the Cash Payment
(as defined in Section 1.4(b)(i)) otherwise due at Closing pursuant to
Section 1.4(b)(i). If there is no Closing as a result of a willful
breach of this Agreement by Purchaser, the Deposit shall be retained
by Seller (without limiting any other rights or remedies of Seller
under this Agreement or applicable law). If the Closing does not
occur for some other reason, the Deposit shall be returned to
Purchaser.
(b) At the Closing:
(i) Purchaser shall pay to Seller the sum of
$136,000.00, in cash or other immediately available fund (the
"Cash Payment"); subject to offset as provided in Section
1.4(a) above.
(ii) Purchaser shall execute and deliver to Seller
a secured promissory note in the amount of $1,200,000.00 in
the form attached hereto as Exhibit A ("Promissory Note I");
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(iii) Unless Purchaser obtains the Note Financing
as provided in Section 7.3, Purchaser shall execute and
deliver to Seller a secured promissory note in the amount of
$500,000.00, in the form attached hereto as Exhibit B
("Promissory Note II");
(iv) Purchaser shall execute and deliver to Seller
a security agreement and related UCC-1 financing statements,
all in form reasonably satisfactory to Seller (collectively,
the "Security Documents"), providing for the creation and
perfection of a lien on and security interest in the Assets,
as security for Purchaser's obligations under Promissory Note
I and Promissory Note II, which lien and security interest
shall be junior only to the liens and security interests held
by Congress and Handel (as such terms are defined in Section
1.5(a)(i));
(v) Purchaser shall transfer and deliver to
Seller shares of voting common stock of Purchaser (the
"Shares") having an aggregate value of $300,000, which value
shall be determined based on the average of the closing sale
prices of the Shares on the over-the-counter electronic
bulletin board for the 14 days immediately preceding the
public announcement of the transaction contemplated hereby;
(vi) Purchaser shall assume the Assumed
Liabilities (as defined in Section 1.5(a)) as provided in
Section 1.5(a); provided, however, that Seller shall first
apply the Cash Payment to cure any monetary defaults under the
Contracts (as defined in Section 1.5(a)(ii)) existing as of
the Closing Date.
1.5 Assumption of Liabilities; Excluded Liabilities.
(a) Subject to Section 1.5(b), at the Closing, Purchaser
shall assume and agree to pay, discharge or perform, as appropriate,
the following liabilities and obligations of Seller (collectively, the
"Assumed Liabilities"):
(i) (A) Seller's liabilities and obligations
under its existing revolving and term loan agreements with
Congress Financial Corporation ("Congress"), in an amount
equal to $6,307,048.43, plus all interest, expenses and costs
accrued thereunder from and after the Petition Date until the
Closing Date, minus all amounts paid by Seller or on Seller's
account thereunder after the Petition Date and prior to the
Closing Date, minus all cash held by Congress in account
number 3050113085 at Union Bank of California, ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇. ▇▇▇▇., ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ as of the Closing Date;
and (B) all liabilities and obligations of Seller under its
note dated May 5, 1997 to the Estate of ▇▇▇ ▇▇▇▇▇▇ ("Handel"),
the outstanding principal balance of which is $600,000 as of
the date hereof;
(ii) all liabilities and obligations of Seller
pursuant to or in respect of all agreements, contracts,
commitments, purchase orders, leases, subleases, documents,
instruments and undertakings relating to the Business which
are outstanding on the Closing Date (collectively, the
"Contracts"), to the extent that such liabilities and
obligations arise in or relate to time periods on or after the
Closing Date, and
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(iii) all liabilities and obligations of Seller
(other than the note payable to ▇▇▇▇▇▇ ▇. Eget and the
Congress debt and Handel debt referred to in Section 1.5(a)(i)
above) arising in the regular and ordinary course of the
Business, to the extent that such liabilities and obligations
arise in or relate to time periods on or after the Closing
Date.
(b) Notwithstanding Section 1.5(a), in no event shall
Purchaser assume or incur any liability or obligation under this
Section 1.5 or otherwise in respect of any of the following
(collectively, the "Excluded Liabilities"):
(i) all liabilities and obligations of Seller
which arose in the regular and ordinary course of the Business
before the Closing Date, other than (A) the Congress debt and
Handel debt referred to in Section 1.5(a)(i), and (B) the
post-Closing liabilities and obligations under the Contracts
assumed by Purchaser pursuant to Section 1.5(a)(ii);
(ii) any liability or obligation in respect of any
claim, or any breach by Seller of any provision of any
Contract, regardless of when made or asserted, which arises
out of Seller's operation of the Business prior to the Closing
or any service performed or any product designed, sold,
manufactured or shipped by or on behalf of Seller prior to the
Closing;
(iii) any liability relating to, and any claim
which arises out of or is based upon, any unfair labor
practice, any collective bargaining agreement, any pension
plan or any employee-related matter arising in or related to
time periods prior to the Closing;
(iv) any federal, state or local income, sales or
other tax payable with respect to the (A) the Business,
assets, properties or operations of Seller for any period
prior to the Closing, or (B) incident to or arising as a
consequence of the negotiation or consummation by Seller of
this Agreement and the transactions contemplated hereby;
(v) any liability or obligation relating to the
Excluded Assets;
(vi) subject to Section 9.1, any liability or
obligation of Seller arising or incurred in connection with
the negotiation, preparation and execution of this Agreement
and the transactions contemplated hereby, including any fees
or expenses of Seller's counsel, accountants or other experts,
and any brokerage or finders fee or commission or other
payment to any entity or person in connection with the
consummation of the transactions contemplated hereby; and
(vii) any liability or obligation of Seller
identified on Schedule 1.5(b) as an "Excluded Liability".
1.6 Restricted Shares; Investment Representations;
Piggyback Registration Rights.
(a) The Shares will not be registered under the
Securities Act of 1933, as amended (the "Securities Act"), and
accordingly will constitute "restricted securities" for purposes of
the Securities Act. Seller will not be able to transfer such Shares
except upon compliance with the registration requirements of the
Securities Act and applicable state securities laws or pursuant to an
exemption
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therefrom. The certificates evidencing the Shares shall contain a
legend to the foregoing effect, and Seller shall execute and deliver
at Closing an investment letter in a form reasonably satisfactory to
Seller and Purchaser (the "Investment Letter") acknowledging that the
Shares are restricted securities and consenting to the foregoing
transfer restrictions.
(b) The holders of the Shares shall have "piggyback"
registration rights as set forth in a registration rights agreement in
a form reasonably satisfactory to Seller and Purchaser (the
"Registration Rights Agreement") to be executed at Closing.
1.7 Allocation of Purchase Price. The Purchase Price
shall be allocated among the Assets as set forth in a purchase price allocation
statement (the "Purchase Price Allocation") to be executed and delivered by
each party at the Closing. The Purchase Price Allocation may be adjusted after
Closing by Purchaser and Seller in writing. The Purchase Price Allocation was
arrived at arm's length between the parties. Each party agrees to complete and
to file IRS Form 8594 with its federal income tax return consistent with the
Purchase Price Allocation for the tax year in which the Closing occurs, and no
party shall take a position on any tax return, before any governmental agency
or in any judicial proceeding that is in any manner inconsistent with the
Purchase Price Allocation without prior consent of the other party.
2. CLOSING
2.1 Time and Place of Closing. The closing (the
"Closing") of the sale and purchase of the Assets shall be held at the offices
of Sulmeyer, Kupetz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m. on December 31, 1997 or such other
date after entry of the Sale Approval Order as the parties may agree (the
"Closing Date").
2.2 Items to be Delivered at Closing. At the Closing,
the following documents (the "Closing Documents") shall be executed and
delivered by the parties thereto:
(a) Seller shall execute and deliver to Purchaser:
(i) an assignment and ▇▇▇▇ of sale, substantially
in the form of Exhibit C;
(ii) an assignment and assumption agreement
substantially in the form of Exhibit D (the "Assumption
Agreement");
(iii) a settlement statement prepared by Seller
(the "Settlement Statement");
(iv) the Purchase Price Allocation;
(v) the Investment Letter;
(vi) the Registration Rights Agreement; and
(vii) such other documents or instruments as
Purchaser may reasonably require.
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(b) Purchaser shall execute and deliver to Seller:
(i) Promissory Note I and Promissory Note II;
(ii) the Security Documents;
(iii) certificates representing the Shares duly
issued in the name of Seller;
(iv) the Assumption Agreement;
(v) the Settlement Statement;
(vi) the Purchase Price Allocation;
(vii) the Registration Rights Agreement; and
(viii) such other documents or instruments as Seller
may reasonably require.
2.3 Delivery of Possession. At the Closing, Seller shall
deliver possession of the Assets and, simultaneously with such delivery shall
take all steps as may be required to put Purchaser in actual possession and
operating control of the Assets, including, without limitation, delivery to
Purchaser of all keys to the premises on which the Business is operated or the
Assets are located, all access codes, security codes, passwords and the like.
Seller shall execute and deliver such further documents and instruments as
Purchaser may reasonably request in order to cause full possession and control
of all of the Assets and of all other things and matters pertaining to the
operation of the Business to be transferred and delivered to Purchaser.
2.4 Third Party Consents. To the extent that Seller's
rights under any Contract or other Asset to be assigned to Purchaser hereunder
may not be assigned without the consent of another person, and such consent has
not been obtained by the Closing Date, or the need for such consent has not
been obviated by Bankruptcy Court order, this Agreement shall not constitute an
agreement to assign the same if an attempted assignment would constitute a
breach thereof or be unlawful. Seller, at its expense, shall use commercially
reasonable efforts to obtain any such required consents as promptly as possible
after Closing, provided that Seller shall not be required to expend any money
for such purposes.
2.5 Further Assurances. From time to time after the
Closing, at Purchaser's request and expense, Seller shall execute, acknowledge
and deliver to Purchaser such other instruments of conveyance and transfer and
shall take such other actions and execute and deliver such other documents,
certifications and further assurances as Purchaser may reasonably require in
order to vest more effectively in Purchaser, or to put Purchaser more fully in
possession of, any of the Assets, or to better enable Purchaser to complete,
perform or discharge any of the Assumed Liabilities. Each of the parties
hereto shall cooperate with the other and execute and deliver to the other
parties hereto such other instruments and documents and take such other actions
as may be reasonably requested from time to time by any other party hereto as
necessary to carry out, evidence and confirm the intended purposes of this
Agreement and the consummation of the transactions hereunder.
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3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as follows:
3.1 Corporate Existence. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
California. Seller is duly qualified to do business and is in good standing as
a foreign corporation in each jurisdiction where the conduct of the Business by
it requires it to be so qualified.
3.2 Corporate Power; Authorization; Enforceable
Obligations. Seller has the corporate power and authority to execute, deliver
and perform this Agreement. The execution, delivery and performance of this
Agreement by Seller have been duly authorized by all necessary corporate
action. This Agreement has been, and the other agreements, documents and
instruments required to be executed and delivered by Seller hereunder (the
"Seller's Documents") will be, duly executed and delivered by Seller. Subject
to approval of the Bankruptcy Court in Seller's Chapter 11 Case, this Agreement
constitutes, and the Seller's Documents when executed and delivered will
constitute, the valid and binding obligations of Seller, enforceable against
Seller in accordance with their respective terms.
3.3 No Conflicts. Except for the approval of Congress
and of the Bankruptcy Court in Seller's Chapter 11 Case, the execution,
delivery and performance of this Agreement and the Seller's Documents does not
and will not violate, conflict with or result in the breach of any term,
condition or provision of, or require the consent of any other person under:
(a) any existing law or governmental rule or regulation to which Seller is
subject, (b) any judgment, order, writ, injunction or decree of any court,
arbitrator or governmental or regulatory authority applicable to Seller, (c)
the charter documents or by-laws of, or any securities issued by Seller, or (d)
any mortgage, indenture, agreement, contract, lease or other instrument or
document to which Seller is a party, by which Seller may have rights or by
which any of the Assets may be bound or affected, or which gives any party with
rights thereunder the right to terminate, modify, accelerate or otherwise
change the existing rights or obligations of Seller thereunder. Except for
approval of the Bankruptcy Court in Seller's Chapter 11 Case, no authorization,
approval or consent of, and no registration or filing with, any governmental or
regulatory authority is required in connection with the execution, delivery or
performance of this Agreement and the Seller's Documents by Seller.
3.4 Title to Properties. As of the date of entry of the
Sale Approval Order, Seller shall have good and marketable title to all of the
Assets (except for inventory or other assets sold in the ordinary course of
business consistent with past practice), free and clear of all mortgages,
liens, security interests and other encumbrances and defects of title, except
for the following ("Permitted Liens"):
(a) liens for current real or personal property taxes not
yet due and payable;
(b) worker's, carrier's and materialman's liens;
(c) interests of lessors under any and all leases
covering equipment and other tangible personal property included in
the Assets;
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(d) liens and security interests in favor of Congress and
Handel, to the extent not released at Closing;
(e) liens and security interests in favor of Seller
created by the Security Documents;
(f) liens and other interests set forth on Schedule 3.4,
and
(g) liens that are immaterial in character, amount and
extent and that do not detract from the value or interfere with the
present or proposed use of the properties they affect.
3.5 Condition of Tangible Assets. Except as set forth in
Schedule 3.5, all tangible property included in the Assets, including, without
limitation, all equipment of Seller, is in good operating condition and repair,
except for normal wear and tear, and is usable in the regular and ordinary
course of business.
3.6 Litigation. Except for the Chapter 11 Case and
except for the litigation set forth in Schedule 3.6 (for which Seller shall
retain liability), no litigation, including any arbitration, investigation or
other proceeding of or before any court, arbitrator or governmental or
regulatory authority, is pending or, to Seller's knowledge, threatened against
Seller which relates to the Business, the Assets or the transactions
contemplated by this Agreement. Except for the Chapter 11 Case and except as
set forth in Schedule 3.6, Seller is not a party to or subject to any judgment,
order, writ, injunction or decree of any court, arbitrator or governmental or
regulatory authority which may adversely affect Seller, the Assets or the
transactions contemplated hereby.
3.7 Disclosure. Seller has disclosed to Purchaser any
and all of the following of which Seller has actual knowledge: (a) any existing
environmental conditions that may adversely affect Purchaser's use of the
Leased Premises or Purchaser's operation of the Business; (b) any delinquent
sales taxes or sales tax returns, and (c) any claims pending under any employee
benefit plan that may adversely affect Purchaser's operation of the Business;
provided, however, that nothing herein shall imply that Seller has any
affirmative duty of inquiry with respect to the matters referred to in
subsection (a) and (c) above. The lists of Seller's inventory previously
furnished to Purchaser do not include any of the Excluded Assets.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser represents and warrants to Seller as follows:
4.1 Corporate Existence. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Colorado. Purchaser is duly qualified to do business and is in good standing
as a foreign corporation in each jurisdiction where the conduct of its business
requires it to be so qualified.
4.2 Corporate Power and Authorization. Purchaser has the
corporate power and authority to execute, deliver and perform this Agreement
and the other agreements, documents and instruments required to be delivered by
Purchaser in accordance with this Agreement (the "Purchaser's Documents"). The
execution, delivery and performance of this Agreement by Purchaser have been,
and the Purchaser's Documents when executed will be, duly authorized by all
necessary corporate action. This Agreement has been duly executed
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and delivered by Purchaser and this Agreement constitutes, and the Purchaser's
Documents when executed and delivered will constitute, the valid and binding
obligations of Purchaser enforceable against Purchaser in accordance with their
respective terms.
4.3 No Conflicts. The execution, delivery and
performance of this Agreement and the Purchaser's Documents by Purchaser does
not and will not violate, conflict with or result in the breach of any term,
condition or provision of, or require the consent of any other party to: (a)
any existing law, ordinance, or governmental rule or regulation to which
Purchaser is subject, (b) any judgment, order, writ, injunction or decree of
any court, arbitrator or governmental or regulatory authority which is
applicable to Purchaser, (c) the charter documents or by-laws of, or any
securities issued by, Purchaser or (d) any mortgage, indenture, agreement,
contract, lease or other instrument or document to which Purchaser is a party
or by which Purchaser is bound. No authorization, approval or consent of, and
no registration or filing with, any governmental or regulatory authority is
required in connection with the execution, delivery and performance of this
Agreement and the Purchaser's Documents by Purchaser.
4.4 Capital Structure. The authorized capital stock of
Purchaser consists of 50,000,000 shares of common stock, par value $.0001 per
share and 10,000,000 share of preferred stock, par value $.01 per share. As of
the date of this Agreement 15,867,121 shares of common stock were outstanding
(excluding the Shares); no shares of common stock were held by Purchaser in its
treasury, and no shares of preferred stock were issued or outstanding. The
Shares to be issued pursuant to this Agreement will be, when issued, validly
issued, fully paid and nonassessable and not subject to preemptive rights and
free and clear of all liens, claims and encumbrances. Except as set forth on
Schedule 4.4, there are no options, warrants, calls, agreements or other rights
to purchase or otherwise acquire from Purchaser at any time, or upon the
happening of any stated event, any shares of Purchaser's capital stock, whether
or not presently issued or outstanding.
4.5 SEC Documents. Purchaser has furnished Seller with
true and complete copies of: (a) Purchaser's 10-KSB for the fiscal year ended
December 31, 1996, (b) Consolidated's Forms 10-QSB for the quarters ended March
31, 1997, June 30, 1997 and September 30, 1997; and (c) all Forms 8-K filed by
Purchaser during 1997 (collectively, the "SEC Documents"). Since January 1,
1997, Consolidated has filed with the Securities and Exchange Commission (the
"SEC") all documents required to be filed pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the rules and regulations
promulgated by the SEC thereunder (the "Rules"). As of their respective dates,
the SEC Documents complied in all material respects with applicable
requirements of the Exchange Act and the Rules, and none of the SEC Documents
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Purchaser's financial statements included in the SEC Documents
comply in all material respects with applicable accounting requirements and
with the Rules.
5. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties made by the parties in this
Agreement or in any certificate, schedule, statement, document or instrument
furnished hereunder shall survive the Closing for the period of time specified
in Sections 9.1 and 9.2.
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6. AGREEMENTS OF SELLER PENDING THE CLOSING.
Seller covenants and agrees that, pending the Closing and
unless otherwise agreed by Purchaser:
6.1 Conduct of Business and Maintenance of Physical
Assets. The Business shall be conducted in the ordinary course consistent with
Seller's past practices. Seller shall maintain and service the physical assets
used in the conduct of the Business in a manner consistent with Seller's past
practices.
6.2 Sale of Assets. Seller shall not, directly or
indirectly, sell or encumber all or any part of the Assets, other than in the
ordinary course of business consistent with Seller's past practices.
6.3 Access.
(a) Upon reasonable prior notice to Seller, Seller shall
give Purchaser's officers, employees, counsel, accountants and other
representatives full access to and the right to inspect, during normal
business hours and subject to Section 7.2, all of the premises,
properties, assets, records, contracts and other documents relating to
the Business and shall permit them (subject to prior clearance from
▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇ Eget) to consult with Seller's officers,
employees, accountants, counsel and agents for the purpose of making
such investigation of the Business and the Assets as Purchaser desires
to make, provided that such investigation shall not unreasonably
interfere with Seller's business operations. Subject to Section 7.2,
Seller shall furnish to Purchaser all such documents and copies of
documents and records and information with respect to the affairs of
the Business and copies of any working papers relating thereto as
Purchaser may from time to time reasonably request and shall permit
Purchaser and its agents to make such physical inventories and
inspections of the Assets as Purchaser may request from time to time.
(b) Seller shall cooperate with Purchaser and its
representatives and agents in their efforts to produce an
environmental assessment of the real property on which the Business is
conducted and an environmental audit of the Business. Upon reasonable
prior notice to Seller, and provided that consent of the property
owner is obtained, Seller shall allow Purchaser and its
representatives and agents access to such real property at all
reasonable times prior to Closing for the purposes for conducting such
inspections, reviews, inventories, observations, tests, analyses,
examinations and investigations as Purchaser may reasonably desire.
To the extent that the following are within Seller's possession or
control, Seller shall allow Purchaser and its representatives and
agents access to all plans and specifications for the improvements on
such real property and all current and historical maintenance records,
licenses, permits, reports and certificates relating to the real
property and any environmental audit of the Business. Purchaser shall
pay all costs and expenses of Purchaser's investigation and hold
harmless Seller and Seller's officers, directors, employees,
representatives and agents from all such costs and expenses and from
any damages incurred or claims or demands made in connection with such
investigation.
7. AGREEMENTS OF PURCHASER PENDING THE CLOSING
7.1 Actions of Purchaser. Purchaser shall not knowingly
take any action which would result in a breach of any of its representations
and warranties hereunder. Purchaser shall cooperate with Seller and use
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its best efforts to cause all of the conditions to the obligations of Purchaser
and Seller under this Agreement to be satisfied on or prior to the Closing
Date.
7.2 Confidentiality. Unless and until the Closing has
been consummated, Purchaser will hold, and shall cause its officers, directors,
employees, counsel, independent certified public accountants, bankers,
appraisers and other agents to hold, in confidence all documents, records, data
and information made available to Purchaser in connection with this Agreement
with respect to the Business (the "Confidential Information"). Prior to the
Closing Date, Purchaser shall not use any Confidential Information or other
information relating to the Business which is not otherwise publicly available
for any purpose unrelated to the consummation of the transactions contemplated
hereby. Prior to the Closing Date or in the event this Agreement is
terminated, Purchaser shall not disclose any such Confidential Information or
other information to any person, unless and until such time as such
Confidential Information or other information is otherwise publicly available
or as Purchaser is advised by counsel that such Confidential Information or
other information is required by law to be disclosed (in which cases Seller
shall be promptly notified). In the event this Agreement is terminated,
Purchaser agrees to return promptly every document furnished to Purchaser by
Seller in connection with the transactions contemplated hereby, any copies
thereof Purchaser may have made, and any documents prepared primarily based
upon information contained therein, and Purchaser shall cause its
representatives and agents to whom such documents were furnished promptly to
return such documents and any copies thereof any of them may have made.
7.3 Financing. Purchaser has received financial
commitments from financial institutions and other parties to refinance the
Seller's existing indebtedness to Congress Financial Corporation, and to pay
related fees and expenses (the "Acquisition Financing"). Purchaser shall use
its best efforts to satisfy, on or before the Closing Date, all requirements of
such financing arrangements which are conditions to closing such financing. In
addition, Purchaser shall use reasonable efforts to obtain financing for that
portion of the consideration evidenced by Promissory Note II (the "Note
Financing"). If Purchaser is able to obtain the Note Financing, Purchaser
shall pay $500,000.00 in cash or other immediately available funds to Seller at
Closing in lieu of execution and delivery of Promissory Note II to Seller.
8. CONDITIONS PRECEDENT TO THE CLOSING
8.1 Conditions Precedent to the Obligations of Purchaser.
The obligations of Purchaser to consummate the transactions contemplated by
this Agreement are subject to the satisfaction, or waiver by Purchaser, prior
to or at the Closing, of each of the following conditions precedent:
(a) Representations and Warranties. The representations
and warranties of Seller contained in this Agreement and in any
certificate or document delivered by Seller to Purchaser under this
Agreement shall have been true in all material respects on the date
hereof (except as set forth in any amended Schedule furnished by
Seller after the date hereof) and shall be true in all material
respects on the Closing Date with the same effect as though such
representations and warranties were made as of such date.
(b) Compliance with this Agreement. Seller shall have
performed and complied with all agreements and conditions required by
this Agreement to be performed or complied with by Seller prior to or
at the Closing.
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(c) Lease Agreement, Non-Disturbance Agreement. The
lease agreement between Danat Investment Company, a California general
partnership ("Lessor"), and Purchaser, for the premises at ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the "Leased Premises"), in form
reasonably satisfactory to Purchaser (the "Lease Agreement") shall
have been executed and delivered by Lessor to Purchaser. The
beneficiary under any mortgage or deed of trust encumbering the Leased
Premises and the landlord under any ground lease affecting the Leased
Premises shall have executed and delivered to Purchaser a
non-disturbance agreement, in recordable form and otherwise in form
reasonably satisfactory to Purchaser (the "Non-Disturbance
Agreement").
(d) Handel Debt Extension. Seller shall have obtained an
extension of the due date of Seller's indebtedness to Handel to June
30, 1998 or any time thereafter, provided that Seller shall not be
required to pay any consideration to Handel or to increase Seller's
liability to Handel in order to obtain such an extension.
8.2 Conditions Precedent to the Obligations of Seller.
All obligations of Seller under this Agreement are subject to the satisfaction,
or waiver by Seller, prior to or at the Closing, of each of the following
conditions precedent:
(a) Representations and Warranties. The representations
and warranties of Purchaser contained in this Agreement and in any
certificate or document delivered by Purchaser to Seller under this
Agreement shall have been true in all material respects on the date
hereof and shall be true on the Closing Date with the same effect as
though such representations and warranties were made as of such date.
(b) Compliance with this Agreement. Purchaser shall have
performed and complied with all agreements and conditions required by
this Agreement to be performed or complied with by Purchaser prior to
or at the Closing.
8.3 Conditions Precedent to the Obligations of Both
Parties. The obligations of both Seller and Purchaser to consummate the
transactions contemplated by this Agreement are subject to the satisfaction, or
waiver by both parties, of each of the following conditions precedent:
(a) No Pending Litigation. On the Closing Date, no suit,
action or other proceeding, or injunction or final judgment relating
thereto, shall be pending before any court or governmental or
regulatory authority in which it is sought to restrain or prohibit or
to obtain damages or other relief in connection with this Agreement or
the consummation of the transactions contemplated hereby.
(b) Consents and Approvals; Release of Liens. All
required consents, approvals, authorizations or orders required in
connection with the sale of the Assets (the "Consents") shall have
been obtained and shall be in effect on the Closing Date, including,
without limitation, approval by the Bankruptcy Court in Seller's
Chapter 11 Case of the sale of the Assets by Seller to Purchaser
pursuant to the terms and conditions of this Agreement and the Sale
Approval Order, or else the need for any such Consent shall have been
obviated by Bankruptcy Court order. The Sale Approval Order shall be
in form and substance reasonably acceptable to Seller and Purchaser,
shall have been entered on the docket of
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the Bankruptcy Court and shall be in full force and effect and shall
not have been stayed by any court. All existing liens on the Assets
shall have been released except (i) any lien in favor of Congress in
the event that Congress provides a portion of the Acquisition
Financing as of the Closing; (ii) any lien of Handel securing the
Handel note, and (iii) Permitted Liens.
(c) Closing Documents. The closing documents set forth
in Section 2.2 hereof shall have been executed and delivered by the
parties thereto.
9. INDEMNIFICATION
9.1 Indemnification Obligation of Seller. If the Closing
occurs, then from and after the Closing, for a period of six months, Seller
shall reimburse, indemnify and hold harmless and defend Purchaser, its
officers, directors, employees, representatives and other agents, and their
successors and assigns, against and in respect of:
(a) Except for the Assumed Liabilities, any and all
claims, demands, causes of action, damages, losses, liabilities,
costs, expenses, fees (including, without limitation, reasonable
attorneys' fees), judgments and good faith settlements of claims or
judgments arising out of or resulting from:
(i) the operations or assets of the Business
prior to the Closing, or the actions or omissions of Seller's
officers, directors, employees and agents relating to the
Business or the Assets prior to the Closing;
(ii) any misrepresentation, breach of warranty or
nonfulfillment of any agreement or covenant on the part of
Seller under this Agreement or any Closing Document to which
Seller is a party, and
(iii) the Excluded Liabilities; and
(b) any and all actions, suits, claims, proceedings,
investigations, demands, assessments, audits, fines, judgments, costs
and other expenses (including, without limitation, reasonable
attorneys' fees and expenses) incident to any of the foregoing or to
the enforcement of this Section 9.1.
9.2 Indemnification Obligation of Purchaser. If the
Closing occurs, then from and after the Closing, for a period of six months,
Purchaser shall reimburse, indemnify and hold harmless Seller, its officers,
directors, employees, representatives and other agents, and their successors or
assigns, against and in respect of:
(a) Except for the Excluded Liabilities, any and all
claims, demands, causes of action, damages, losses, liabilities,
costs, expenses, fees (including, without limitation, reasonable
attorneys' fees), judgments and good faith settlements of claims or
judgments arising out of or resulting from:
(i) the operations or assets of the Business
after the Closing, or the actions or omissions of Purchaser's
officers, directors, employees and agents relating to the
Business or the Assets after the Closing;
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(ii) any misrepresentation, breach of warranty or
nonfulfillment of any agreement or covenant on the part of
Purchaser under this Agreement or any Closing Document to
which Purchaser is a party, and
(iii) the Assumed Liabilities; and
(b) any and all actions, suits, claims, proceeding,
investigations, demands, assessments, audits, fines, judgments, costs
and other expenses (including, without limitation, reasonable
attorneys' fees and expenses) incident to any of the foregoing or to
the enforcement of this Section 9.2.
9.3 Method of Asserting Claims, Etc.
(a) In the event that any claim or demand ("Claim") for
which a party (the "Indemnifying Party") would be liable to another
party (the "Indemnified Party") is asserted against or sought to be
collected from the Indemnified Party by a third party, the Indemnified
Party shall promptly notify the Indemnifying Party of such Claim,
specifying the nature of the Claim and the amount or estimated amount
thereof (which estimate shall not be conclusive of the final amount of
such Claim) (the "Claim Notice"). The Indemnifying Party shall have
30 days from of the Claim Notice (the "Notice Period") to notify the
Indemnified Party (i) whether or not it disputes liability to the
Indemnified Party with respect to such Claim, and (ii) notwithstanding
any such dispute, whether or not it desires, at its sole cost and
expense, to defend the Indemnified Party against such Claim.
(b) If the Indemnifying Party disputes its liability with
respect to the Claim (whether or not the Indemnifying Party desires to
defend the Indemnified Party against such Claim as provided below),
the Claim shall be resolved in accordance with Section 9.6 hereof.
Pending resolution of the dispute, such Claim shall not be settled
without prior consent of the Indemnified Party.
(c) In the event that the Indemnifying Party notifies the
Indemnified Party within the Notice Period that it desires to defend
the Indemnified Party against such Claim then the Indemnifying Party
shall have the right to defend the Indemnified Party by appropriate
proceedings. If the Indemnified Party desires to participate in (but
not control) any such defense, it may do so at its sole cost and
expense.
(d) If the Indemnifying Party does not dispute its
liability with respect to such Claim, the amount of such Claim, or if
the same be defended by the Indemnifying Party then that portion
thereof as to which such defense is unsuccessful, shall be
conclusively deemed to be a liability of the Indemnifying Party.
(e) In the event an Indemnified Party has a Claim against
the Indemnifying Party hereunder that is not being asserted against or
sought to be collected from the Indemnified Party by a third party,
the Indemnified Party shall promptly send a Claim Notice with respect
to such Claim to the Indemnifying Party. If the Indemnifying Party
disputes its liability with respect to such Claim, such dispute shall
be resolved in accordance with Section 9.6 hereof. If the
Indemnifying Party does not notify the Indemnified Party within the
Notice Period that it disputes such Claim, the amount of such Claim
shall be conclusively deemed a liability of the Indemnifying Party
hereunder.
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9.4 Payment. Upon the determination of liability of the
Indemnifying Party hereunder, the Indemnifying Party shall pay to the
Indemnified Party, within 10 days after such determination, the amount of the
liability. The Indemnifying Party shall receive a credit for any insurance
proceeds or other third-party payments received or receivable by the
Indemnified Party with respect to the Claim. Upon payment in full, the
Indemnifying Party shall be subrogated to the rights of the Indemnified Party
against any third person, firm or corporation with respect to the Claim. If it
is determined that Purchaser is entitled to indemnification under this
Agreement, Purchaser shall be entitled to set off the amount of the Claim as
finally determined against the balance owing under the Promissory Note I.
9.5 Limitation on Indemnification. Notwithstanding
anything to the contrary herein, no Indemnified Party shall be entitled to be
indemnified until the amount of the Claims against such Indemnifying Party
equals or exceeds $25,000. Once the amount of such Claims equals or exceeds
$25,000, then the Indemnified Party shall be entitled to full indemnification
for all Claims against the Indemnifying Party. Notwithstanding anything to the
contrary herein, Seller's total obligation to indemnify Purchaser in respect of
Purchaser's claims for indemnification hereunder shall not exceed $200,000.
9.6 Arbitration. All disputes under this Section 9 shall
be settled by arbitration in Los Angeles County, California before a single
arbitrator pursuant to the rules of the American Arbitration Association
("AAA"). Arbitration may be commenced at any time by any party hereto giving
written notice to each other party to a dispute that such dispute has been
referred to arbitration under this Section 9.6. The arbitrator shall be
selected by the joint agreement of Seller and Purchaser, but if they do not so
agree within 20 days after the date of the notice referred to above, the
selection shall be made pursuant to AAA rules. Any award rendered by the
arbitrator shall be accompanied by a written opinion of the arbitrator giving
the reasons for the award, and shall be conclusive and binding upon the
parties. This provision for arbitration shall be specifically enforceable by
the party. The decision of the arbitrator shall be final and binding, and
there shall be no right of appeal therefrom. Any arbitration award shall be
enforceable in the Superior Court of the State of California, County of Los
Angeles. The prevailing party in such arbitration, as determined by the
arbitrator, shall be entitled to reasonable attorneys' fees and costs of such
arbitration, costs of suit to enforce such arbitration award and all costs of
collection of such arbitration award.
10. PUBLICITY
Each party hereto agrees not to issue any press release or to
make any public statement with respect to the transactions contemplated hereby
without the consent, which shall not be unreasonably withheld, of Seller (in
the case of releases or statements issued or made by Purchaser) or Purchaser
(in the case of releases or statements issued or made by Seller), except as may
be required by law, in which event such press release or public statement shall
be made only after consultation with Seller or Purchaser, as the case may be.
11. TERMINATION
11.1 Termination. This Agreement may be terminated at any
time prior to the Closing:
(a) By mutual agreement of Purchaser and Seller; or
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(b) By Seller or Purchaser by notice to the other,
without liability to the terminating party on account of such
termination, if the Closing shall not have occurred on or before
January 8, 1998; provided that if a party's willful breach of this
Agreement has prevented the consummation of the transactions
contemplated hereby, such party shall not be entitled to terminate
this Agreement under this Section 11.1(b); or
(c) By Seller by notice to Purchaser, if any of the
conditions set forth in Section 8.2 or 8.3 (to the extent applicable
to Purchaser) shall not have been complied with or performed in any
material respect by Purchaser and such noncompliance or nonperformance
shall not have been cured or eliminated (or by its nature cannot be
cured or eliminated) on or before January 8, 1998;
(d) By Purchaser by notice to Seller, if any of the
conditions set forth in Section 8.1 or 8.3 (to the extent applicable
to Seller) shall not have been complied with or performed in any
material respect by Seller and such noncompliance or nonperformance
shall not have been cured or eliminated (or by its nature cannot be
cured or eliminated) on or before January 8, 1998.
11.2] Effect of Termination. Termination of this Agreement
pursuant to Section 11.1 shall terminate all obligations of the parties under
this Agreement except the parties' obligations under Section 7.2; provided,
however, that termination shall not relieve a defaulting or breaching party
from any liability to the other party under this Agreement.
12. POST-CLOSING MATTERS
12.1 Hiring of Seller's Employees. As of the Closing
Date, Purchaser shall offer employment to, and Seller shall use reasonable
efforts to assist Purchaser in employing as new employees of Purchaser, those
persons presently employed by Seller who are identified by Purchaser (the
"Employees"). As of the Closing Date, Seller shall terminate any employment
agreements it has with any of the Employees.
12.2 Employee Benefits. All Employees who are employed by
Purchaser on or after the Closing Date shall be new employees of Purchaser, and
any prior employment by Seller of such Employees shall not affect entitlement
to, or the amount of, salary or other cash compensation which Purchaser may
make available to them. All Employees employed by Purchaser shall no longer be
considered employees of Seller for any purposes.
12.3 Access to Records. After the Closing, upon
reasonable prior notice to Purchaser, Seller shall have full access to and the
right to inspect and copy, during normal business hours, all files, accounts,
books and records related to the Business which Seller transferred to Purchaser
at the Closing.
12.4 Payments Received. After Closing, Seller and
Purchaser shall hold and shall promptly transfer and deliver to the other, from
time to time as and when received by them, any cash, checks with appropriate
endorsements (using their best efforts not to convert such checks into cash),
or other property that they may receive on or after the Closing which properly
belongs to the other party, including, without limitation, any insurance
proceeds, and shall account to the other for all such receipts.
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12.5 Use of Name. From and after the Closing Date, Seller
shall sign such consents and take such other action as Purchaser may reasonably
request in order to permit Purchaser to use the name "Capitol Metals Co., Inc."
From and after the Closing Date, Seller shall not use the name "Capitol Metals
Co., Inc." or any names deceptively similar thereto. Promptly after the
Closing, Seller shall change its corporate name to a name which is dissimilar
to "Capitol Metals Co., Inc."
12.6 Duferco and Ferrostaal Inventory. After Closing,
Purchaser agrees to store, without charge, on behalf of Seller, the Duferco and
Ferrostaal inventory described on Schedule 1.3 until the pending litigation
concerning such inventory is concluded. Upon conclusion of such litigation,
Purchaser shall deliver such inventory as directed by (and at the expense of)
the owner thereof.
13. MISCELLANEOUS
13.1 Brokers', Finders' and Related Fees. Except as set
forth in Schedule 13.1, Seller and Purchaser each represent and warrant to the
other that no person, firm, corporation or other entity is entitled to any
brokerage fee or other commission from the other party in respect of the
execution of this Agreement or the consummation of the transactions
contemplated hereby, and each party shall indemnify and hold harmless the other
and any affiliate of them against any and all claims, losses, liabilities or
expenses that may be asserted against any of them as a result of any dealings,
arrangements or agreements by the indemnifying party with any such person,
firm, corporation or other entity. Seller shall retain sole responsibility and
liability for the fees and costs of the broker(s) identified on Schedule 13.1.
13.2 Expenses. Except as set forth in Section 9, each
party hereto shall pay its own expenses incidental to the negotiation,
preparation, execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby.
13.3 Integration; Amendments. This Agreement sets forth
the entire understanding of the parties with respect to the subject matter
hereof. Any and all previous agreements and understandings between the parties
regarding the subject matter hereof, whether written or oral, are superseded by
this Agreement. This Agreement shall not be amended or modified except by an
instrument duly executed by each of the parties hereto, subject to the approval
of the Bankruptcy Court in the Seller's Chapter 11 Case.
13.4 Assignment; Binding Effect. This Agreement may not
be assigned by any party hereto without prior consent of the other, which
consent may be granted or withheld in the sole and absolute discretion of the
party whose consent is requested. Subject to the foregoing, all of the terms
and provisions of this Agreement shall be binding upon and inure to the benefit
of, and be enforceable by, the successors and assigns of Seller and Purchaser.
13.5 Waiver. Any term or provision of this Agreement
may be waived at any time by the party entitled to the benefit thereof by an
instrument duly executed by such party, subject to any approval of the
Bankruptcy Court that may be required by law.
13.6 Notices. Any notice, request, demand, waiver,
consent, approval or other communication which is required or permitted
hereunder shall be in writing and shall be deemed given only if
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delivered personally, by facsimile (which is confirmed), by courier or sent by
certified mail, postage prepaid, addressed as follows:
If to Purchaser, to:
CONSOLIDATED CAPITOL OF NORTH AMERICA, INC.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to Seller, to:
BINHAD, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. Eget
With a copy to:
SULMEYER, KUPETZ, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
or to such other address as the addressee may have specified in a notice duly
given to the sender as provided herein. Such notice, request, demand, waiver,
consent, approval or other communication shall be deemed to have been given as
of the date so delivered.
13.7 Governing Law. This Agreement shall be governed by
and interpreted and enforced in accordance with the laws of the State of
California, without regard to choice-of-law principles. The parties hereby
agree that subject to Section 9.6, any proceeding to enforce of this Agreement
shall be brought in Los Angeles County, California.
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13.8 No Benefit to Others. The representations, warranties
and covenants in this Agreement are for the sole benefit of the parties hereto
and, in the case of Section 9 hereof, the indemnified parties, and their heirs,
executors, administrators, legal representatives, successors and assigns, and
shall not be construed as conferring any rights on any other persons.
13.9 Headings and "Persons". All section headings contained
in this Agreement are for convenience of reference only, do not form a part of
this Agreement and shall not affect in any way the meaning or interpretation of
this Agreement. Any references to a "person" herein shall include an
individual, firm, corporation, partnership, trust, governmental authority or
body, association, unincorporated organization and any other entity.
13.10 Schedules and Exhibits. All Exhibits and Schedules
referred to herein are intended to be and hereby are specifically made a part
of this Agreement
13.11 Severability. Any provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall be ineffective to the extent
of such invalidity or enforceability without invalidating or rendering
unenforceable the remaining provisions hereof, and any such invalidity or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13.12 Counterparts. This Agreement may be executed in any
number of counterparts, each of which when executed and delivered shall be
deemed to be an original and all of which counterparts taken together shall
constitute but one and the same instrument. It shall not be necessary in
making proof of this Agreement or any counterpart hereof to produce or account
for any of the other counterparts.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first set forth above.
PURCHASER:
CONSOLIDATED CAPITAL OF
NORTH AMERICA, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Chief Executive Officer
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SELLER:
CAPITOL METALS CO., INC.
By: /s/ ▇▇▇▇▇▇ ▇. Eget
---------------------------------
▇▇▇▇▇▇ ▇. Eget
Chairman of the Board
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