XXXX OF SALE AND ASSIGNMENT
THIS XXXX OF SALE AND ASSIGNMENT is made and delivered this 23rd day of
April, 1997 by Nord Kaolin Company, a Georgia limited partnership ("Seller"),
and Dry Branch Kaolin Company, a Delaware corporation ("Purchaser").
WHEREAS, pursuant to that certain Asset Purchase Agreement dated as of
March 5, 1997 (the "Purchase Agreement") by and among Purchaser and Seller,
Seller has agreed to sell to Purchaser and Purchaser has agreed to purchase from
Seller, for the consideration and upon the terms and conditions set forth in the
Purchase Agreement, all of Seller's right, title and interest in and to the
Acquired Assets as the same are described in the Purchase Agreement; and
WHEREAS, capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to such terms in the Purchase Agreement;
NOW THEREFORE, pursuant to the Purchase Agreement and in consideration of
the premises, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed that:
1. CONVEYANCE. Seller hereby sells, assigns, transfers, conveys, and
delivers to Purchaser all of the right, title and interest of Seller in and to
each of the Acquired Assets owned by it as the same are defined and described in
the Purchase Agreement, which Purchase Agreement is incorporated herein by this
reference.
2. REPRESENTATION AND WARRANTY. Seller represents and warrants to
Purchaser that, at the date hereof, Seller has good and marketable title to the
Acquired Assets being conveyed by it hereunder and under the Purchase Agreement
and has transferred to and vested in Purchaser good and marketable title to each
of the Acquired Assets herein conveyed, free and clear of all liens, claims,
charges, encumbrances and security interests of any kind or nature other than
the Permitted Encumbrances as defined in Section 1.1 of the Purchase Agreement,
and Seller shall warrant and defend such title unto Purchaser forever.
3. POWER OF ATTORNEY. Seller hereby irrevocably designates, makes,
constitutes and appoints Purchaser, its successors or assigns, the true and
lawful attorney (and agent-in-fact) of Seller with full power of substitution,
for the benefit and at the expense of Purchaser, and except as may be limited by
or otherwise provided for in the Purchase Agreement: (a) where such proceedings
cannot be in the name of Purchaser, its successors and assigns, to institute and
prosecute all proceedings which Purchaser may deem proper in order to collect,
assert or enforce any claim, right or title of any kind in or to any of the
Acquired Assets, to defend or compromise any and all actions, suits or
proceedings in respect of any of the Acquired Assets, and to do all such acts
and things in relation thereto as Purchaser
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shall deem advisable, provided that Purchaser provides Seller with
contemporaneous notice of each instance when it invokes this power of attorney;
(b) to endorse Seller's name on any payment, instrument, notice, or other
similar document or agreement relating to the Acquired Assets for the period
commencing with the date hereof that may come in to the possession of Purchaser
or under Purchaser's control with respect to the Acquired Assets; and (c) to
receive and open all mail addressed to Seller and reasonably believed by
Purchaser to relate to the Acquired Assets (provided that items not relating to
the Acquired Assets for the period commencing with the date hereof shall be
returned to Seller). Seller acknowledges that the foregoing powers are coupled
with an interest and shall be irrevocable by Seller in any manner or for any
reason. Purchaser shall be entitled to retain for its own account any amounts
collected pursuant to the foregoing powers which constitute Acquired Assets,
including any amounts payable as interest in respect thereto.
4. UNDERTAKINGS. If, subsequent to the date hereof, any property that is
part of the Acquired Assets for the period commencing with the date hereof
herein conveyed comes into the possession of Seller, Seller shall promptly
deliver the same to Purchaser and, if such property is in the form of checks,
drafts or other negotiable instruments, Seller shall promptly endorse the same
to Purchaser. If, subsequent to the date hereof, any property that is part of
the Excluded Assets comes into the possession of Purchaser, Purchaser shall
promptly deliver the same to Seller and, if such property is in the form of
checks, drafts or other negotiable instruments, Purchaser shall promptly endorse
the same to Seller.
5. THE PURCHASE AGREEMENT. Nothing contained in this Xxxx of Sale and
Assignment shall be deemed to supersede, enlarge on, limit or modify any of the
obligations, agreements, covenants or warranties of Seller or Purchaser
contained in the Purchase Agreement, all of which survive the execution and
delivery of this Xxxx of Sale and Assignment as provided in the Purchase
Agreement. If any conflict exists between the terms of this Xxxx of Sale and
Assignment and the Purchase Agreement, then the terms of the Purchase Agreement
shall govern and control.
6. GOVERNING LAW. This Xxxx of Sale and Assignment shall be governed by
and construed in accordance with the laws of the State of Georgia without regard
to conflicts of laws principles.
(signatures appear on the following page)
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IN WITNESS WHEREOF, Seller has caused this Xxxx of Sale and Assignment to
be executed and delivered as of the date first above written.
DRY BRANCH KAOLIN COMPANY
By:
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Name:
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Title:
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NORD KAOLIN COMPANY
By: Norplex, Inc.
Its General Partner
By:
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Name:
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Title:
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