AMENDMENT TO AGREEMENT FOR THE
PURCHASE AND SALES OF ASSETS
This Amendment to the Agreement for the Purchase and Sales of Assets is
made as of this 5th day of February, 1996, by and between Met-Coil Systems
Corporation, a Delaware corporation, ("Met-Coil"), Xxxx Machinery & Automation,
Inc., a Texas corporation, ("Seller"), and Mestex, Ltd., a Texas Limited
partnership, ("Purchaser").
Met-Coil, Seller, and Purchaser entered into an Agreement for the Purchase
and Sales of Assets as of January 12, 1996 ("Agreement") and now to desire to
amend certain of the terms of that Agreement prior to Closing.
Met-Coil, Seller and Purchaser agree as follows:
1. The first paragraph of Section 1.1 of the Agreement is amended to read
as follows:
1.1 The Assets. Upon the closing of the transactions contemplated under
this Agreement on January 31, 1996, or such other date as mutually agreed by the
parties (the "Closing Date"), and subject to the terms and conditions contained
in this Agreement, Seller shall sell, transfer, convey, assign and deliver to
Purchaser, and Purchaser shall purchase, acquire and accept from Seller, free
and clear of all liens, encumbrances, restrictions and adverse charges of any
nature whatsoever, except as may be permitted by Section 7.7, all of the assets,
rights, interests, properties and goodwill of every nature whatsoever, tangible
or intangible and wheresoever situated, required or appropriate for the
continued operation of the Xxxx Business which is further defined as the
manufacture, application, design, development, engineering, distribution and
sale of various models and types of press feeding and cut-to-length automation
equipment and machinery and the parts and accessories related thereto set forth
by name and drawing number category in Schedule 1.1 attached hereto, and
specifically excepting the assets listed in Section 2. The assets, rights,
interests, properties and goodwill sold, transferred, conveyed, assigned and
delivered by Seller to Purchaser hereunder (collectively, the "Assets") shall
include but not be limited to the following:
2. Section 2 of the Agreement is amended to read as follows:
2. Excluded Assets. The assets excluded from the Agreement (the "Excluded
Assets") are all of the assets of Seller not specifically identified in Section
1, including without limitation the real property and fixtures of Seller, any
rents or profits from the rental of the real property or the right to receive
same, and all of the machinery located in the Seller's facility and any rents or
profits from the rental of the machinery or the right to receive same and any
rights of Seller in the Agreement and Adjustable Note.
1
3. Section 3.2 of the Agreement is amended to read as follows:
3.2 Payment of Purchase Price
3.2.1 On the Closing Date, the portion of the Purchase Price identified in
Section 3.1.1 of the Agreement shall be paid by Purchaser delivering such amount
in cash by wire transfer or other immediately available funds to Seller (the
"Initial Payment").
3.2.2 On the Closing Date the portion of the Purchase Price identified in
Section 3.1.2 shall be paid by Purchaser delivering to Seller an adjustable note
substantially in the form attached hereto as Exhibit 3.2.2 (the "Adjustable
Note"). The terms, conditions, covenants and procedures whereby the principal
amount of the Adjustable Note shall be adjusted based upon the actual count of
the Inventory, the application of the terms of the representations and
warranties set forth in Section 7.12 and 7.15 of the Agreement and the covenant
of Seller set forth in Section 10.7 of this Agreement are set forth more fully
in Section 3.3 of this Agreement and the Adjustable Note. The amount of any
state of local transfer, conveyance or recordation taxes imposed by the state or
municipality on the transfer of title of the personal property shall be paid by
Seller.
4. Section 3.3.2 of the Agreement is amended to read as follows:
3.3.2 Terms Relating to Adjustment. Seller shall use its best efforts to
value the physical count of the Inventory to be taken immediately after the
Closing Date at its earliest convenience, but not later than thirty (30) days
after the Closing Date. The parties shall work together making such personnel
and records available as necessary to determine and finalize the adjustments to
the principal amount of the Adjustable Note in good faith at their earliest
convenience based upon the valuation of the physical count of the Inventory, the
calculations and standards set forth in Section 3.3.1., the representations and
warranties set forth in Section 7.12 and 7.15 of the Agreement and the covenant
of Seller set forth in Section 10.7 of the Agreement. Notwithstanding the
foregoing, forty-five days after the Closing Date, Purchaser shall pay Seller in
cash a partial payment under the Adjustable Note of the greater of the amount of
$200,000 or the sum of all categories of the net tangible asset value as defined
in Section 3.1.2 which are not in dispute and are set forth in a preliminary
memorandum of understanding executed by the authorized representatives of each
of the parties. The final adjusted amount due under the Adjustable Note and the
calculation of all remaining adjustments to the Adjustable Note shall be payable
in cash not later than ninety days after the Closing Date, subject to reasonable
reserve for amounts in dispute. All such final adjustments shall be set forth in
a memorandum of understanding prepared and executed by the authorized
representatives of each of the parties.
In the event the parties are unable to agree upon any final adjustments,
such disputes shall be submitted to a partner at a national accounting firm
mutually selected by both sides with a determination to be made no later than
May 31, 1996.
5. Section 11.2.1 is amended to read:
11.2.1 Purchaser shall deliver to Seller in cash the Initial Payment and
the Adjustable Note with the Adjustable Note.
2
6. Section 11.2.13 is amended by adding the following sentence at the end
of the section:
Purchaser shall have received from the secured lenders of Seller a letter
of nondisturbance subject to attornment and subordination in a form acceptable
to Purchaser which allows Purchaser the right to remain undisturbed as a
tenant of the real property of Seller and to use the machinery leased under the
Lease as long as Purchaser is a tenant in good standing under the Lease.
7. All other provisions of the Agreement except as modified herein remain
in full force and effect.
MET-COIL SYSTEMS CORPORATION
By: /S/ Xxxxxxx X. Xxxxxxxx
President
XXXX MACHINERY AND AUTOMATION, INC.
By: /S/ Xxxxxxx X. Xxxxxxxx
Chairman and Senior Vice President
MESTEX, LTD., a Texas limited partnership
By: GENTEX PARTNERS, INC., its General Partner
By: /S/ X. X. Xxxxx
Vice President
3
