EXHIBIT 10.1
CLOSING AGREEMENT
This CLOSING AGREEMENT is made this 2nd day of August, 2001, by and among
Keystone Akron, Inc., an Ohio corporation ("Seller"), Pick Ups Plus, Inc., a
Delaware corporation ("Buyer"), Xxxx Xxxxxxxxxx and Xxxxxx Xxxxx (Xxxxxxxxxx and
White collectively, the "Guarantors").
WHEREAS, Buyer and Seller have entered into a certain Offer to Purchase
dated July 6, 2001 as amended (the "Purchase Agreement") whereby Buyer has
agreed to purchase substantially all of the assets of Seller as more fully
set forth therein; and
WHERE, pursuant to the Purchase Agreement, Buyer was to deliver to Seller
at closing of the transactions contemplated thereby (the "Closing") a promissory
note in the face amount of $44,000 and $104,000 in cash less the amount of any
xxxxxxx money deposit held in escrow; and
WHEREAS,Seller is currently subject to a Citation and Notification of Penalty
(the "OSHA Citation") from the US Department of Labor attached hereto as
Exhibit A and incorporated herein by reference; and
WHEREAS, the parties have agreed to reduce the cash payment due at closing
to $50,000 plus the amount of any xxxxxxx money deposit in exchange for a
promissory note guaranteed by the Guarantors which shall be due and payable at
such time as the abatement required by the OSHA Citation is complete.
NOW THEREFORE, the parties hereto agree as follows:
1. Payment of purchase price. At Closing the purchase price set forth in section
1.2 of the Purchase Agreement shall be paid, and such Section is hereby amended,
as follows:
A. The Sales Price set forth in Section 1.2 (a) shall remain the same;
B. The Buyer shall make a cash down payment, in immediately available
funds, of $65,000 at Closing, which shall consist of the $15,000 xxxxxxx money
deposit currently held pursuant to Section 1.03 of the Purchase Agreement, and a
$50,000 cash payment by Buyer.
C. Buyer shall deliver to Seller a promissory note (the "Original Note") in
the principal amount of $44,000 payable in 11 monthly installments of $4,000
each, beginning on September 1, 2001, and continuing on the same day of each
month thereafter until paid in full. The Original Note shall bear no interest.
D. Buyer shall deliver to Seller a promissory note (the "New Note") in the
principal amount of $39,000 payable on the terms set forth herein. The New Note
shall be executed by the Guarantors as co-makers of such note.
E. The New Note and the Original Note shall be guaranteed by a Security
Agreement granting to Seller a security interest in the assets of Buyer and a
purchase money security interest in the assets of Buyer purchased pursuant to
the Purchase Agreement.
F. To the extent that the terms of the Purchase Agreement are not
inconsistent herewith, they shall remain in full force and effect.
2. Payment terms of the New Note. All amounts due under the New Note shall be
paid as follows:
A. Buyer shall initially be responsible to hire and train an employee to
operate the spray -on booth (the "Spray On Booth") transferred to Buyer
pursuant to the Purchase Agreement. Buyer must render the Spray On Booth
operational no later than the thirtieth day after the date of this Agreement. In
the event that the Spray On Booth is not fully staffed and operation on the
thirtieth day hereafter, any and all amounts due and owing under the New Note
shall then be immediately due and payable. If the Spray On Booth is not
operational and fully staffed within such period, Buyer and Seller agree that
Seller shall no longer be responsible for any remediation and/or abatement
required under the OSHA Citation.
B. In the event that the Spray On Booth shall be operational within 30 days
of the date hereof, Seller shall be responsible for the abatement and
remediation required by the OSHA Citation. Buyer shall be responsible to
maintain the Spray On Booth fully operational, complete with qualified
operators, during the remediation and abatement process. At such time as the
Seller's certify to buyer that the remediation and abatement required by the
OSHA Citation has been complied with in all material respects, or in the event
that the Buyer fails to maintain the Spray On Booth fully operational and such
failure interferes with any actions taken by Seller with respect to the
remediation and abatement, including but not limited to testing the air quality
in the Spray On Booth while in operation, any and all sums due under the New
Note shall be immediately due and payable in full and Seller shall no longer be
responsible for any such remediation and abatement.
3. Cooperation. Buyer hereby represents, warrants and agrees that it shall
cooperate fully in any remediation and/or abatement programs or processes taken
by Seller to comply with the OSHA Citation, and does hereby grant Seller full
and complete access to the Spray N Booth, the premises where it is located, and
any and all other equipment, books and records of the Buyer to complete, test
and demonstrate compliance with the OSHA Citation.
4. Miscellaneous
A. Successors and Assigns. This Agreement shall bind the parties, their
respective shareholders, members, trustees, directors, officers, employees,
successors and assigns upon the terms of this Agreement
V. Amendments. This Agreement may not be amended or modified except by a writing
signed by the parties or their authorized representatives.
C. Applicable Law. This Agreement shall be construed under the laws of the State
of Ohio.
D. Time is of the Essence. Time is of the essence in the implementation of this
Agreement
E. Notices. Any notices by any party to another shall be in writing and shall be
delivered personally; sent by facsimile, acknowledgement of receipt requested;
sent by overnight courier service, return receipt requested; or, deposited in US
certifies mail, return receipt requested, to the last known address of such
party.
F. Captions. All captions used in this Agreement are for convenience only and
should not be construed to form a substantive xxx of this Agreement nor restrict
or enlarge any substance or part of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth above.
Keystone Akron, Inc.
By: /s/ Xx. Xxxxxxx
President
Pick Ups Plus, Inc
By: /s/ Xxxx Xxxxxxxxxx
President
/s/ Xxxx Xxxxxxxxxx
/s/ Xxxxxx Xxxxx
