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EXHIBIT 10.43
ASSIGNMENT AND BILL OF SALE
FOR VALUE RECEIVED, BINHAD, INC. (formerly known as CAPITOL
METALS CO., INC.), a California corporation ("Seller"), with its principal
place of business located at 00000 X. Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx
00000, hereby bargains, sells, grants, conveys, transfers, assigns and delivers
unto ANGELES ACQUISITION CORP., a Delaware corporation ("Assignee"), with its
principal place of business located at 000 - 00xx Xxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000, and Xxxxxxxx's successors and assigns, all of Seller's right,
title and interest in and to the assets, properties and rights of Seller used
directly or indirectly in the conduct of, or generated by or constituting, the
Seller's steel processing and supply business and located or deemed located at
Seller's place of business at the address above (collectively, the "Assets"),
including, without limitation:
(a) except as provided below, all cash and cash
equivalents, in transit, in hand or in bank accounts, all checks,
drafts, certificates of deposit, treasury securities and investments;
(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 below and in Section 1.5(a)(ii) of the Asset Purchase
Agreement, dated as of December 1, 1997, between Seller and
Consolidated Capital of North America, Inc., a Colorado corporation
(the "Asset Purchase Agreement"), 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 mark, 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;
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(j) except as provided below and subject to Section 12.3
of the Asset Purchase Agreement, 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.
NOTWITHSTANDING THE FOREGOING, the Assets transferred
hereunder shall not include any of the following:
(a) the items set forth on Schedule 1.3 attached hereto;
(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) of the Asset Purchase Agreement; (ii)
all liabilities and obligations of Seller under the Contracts (as
defined in Section 1.5(a)(ii) of the Asset Purchase Agreement) 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) Xxxxxx X. Xxxx'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, and
(f) all rights accruing to Seller under the Asset
Purchase Agreement, and any and all documents and instruments executed
or delivered in connection with the transaction contemplated thereby.
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TO HAVE AND TO HOLD the Assets unto Assignee, its successors
and assigns, forever.
The Bill of Sale shall be, and shall be deemed to be, subject
to that certain Order Approving Sale of Substantially All Property of The
Estate Free and Clear of Liens and Interests, entered by the Bankruptcy Court
in Seller's pending chapter 11 case on or about December 29, 1997 (the "Sale
Approval Order").
ASSIGNEE ACKNOWLEDGES THAT SELLER HAS NOT MADE AND DOES NOT
HEREBY MAKE ANY REPRESENTATION OR WARRANTY, WRITTEN OR ORAL, STATUTORY, EXPRESS
OR IMPLIED, AS TO ANY MATTER WHATSOEVER INCLUDING, WITHOUT LIMITATION, THE
DESIGN, QUALITY, CAPACITY, MATERIAL, WORKMANSHIP, OPERATION, CONDITION,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR HIDDEN OR LATENT DEFECTS
OF THE ASSETS SOLD HEREUNDER OR ANY PORTION OF EITHER THEREOF OR AS TO PATENT
INFRINGEMENT, COPYRIGHT INFRINGEMENT, TRADEMARK INFRINGEMENT OR THE LIKE,
EXCEPT AS EXPRESSLY SET FORTH IN THE SALE APPROVAL ORDER OR THE ASSET PURCHASE
AGREEMENT.
EXCEPT AS EXPRESSLY SET FORTH IN THE SALE APPROVAL ORDER OR
THE ASSET PURCHASE AGREEMENT, SELLER SHALL NOT BE RESPONSIBLE FOR THE DELIVERY,
INSTALLATION, MAINTENANCE, USE, OPERATION, PERFORMANCE, SERVICE, OR CONDITION
OF ANY ASSET OR FOR ANY DELAY IN, OR INADEQUACY OF, ANY OR ALL OF THE
FOREGOING. IN NO EVENT SHALL SELLER HAVE ANY LIABILITY TO ASSIGNEE, ASSIGNEE'S
CUSTOMERS OR THIRD PARTIES, FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY PERSONAL INJURY
DAMAGES, LOSS OF PROFITS OR SAVINGS, LOSS OF USE, OR ANY OTHER LOSS OR DAMAGES
OF ANY KIND OR NATURE, RESULTING FROM THE DELIVERY, INSTALLATION, MAINTENANCE,
USE, OPERATION, PERFORMANCE, SERVICE OR CONDITION OF ANY ASSET OR ANY PORTION
THEREOF, OR ANY DELAY OR FAILURE BY ANY VENDOR OR MANUFACTURER IN DELIVERING,
INSTALLING AND/OR MAINTAINING ANY PERSONAL PROPERTY, OR ANY PORTION THEREOF,
PERFORMING ANY SERVICE FOR ASSIGNEE, OR FOR ANY DAMAGES BASED ON STRICT OR
ABSOLUTE
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TORT LIABILITY OR SELLER'S NEGLIGENCE, OR FOR CONSEQUENTIAL DAMAGES OF ANY
NATURE WHATSOEVER, EXCEPT AS EXPRESSLY SET FORTH IN THE ASSET PURCHASE
AGREEMENT.
IN WITNESS WHEREOF, the parties have caused this instrument to
be executed by their duly authorized officers on the dates set forth below.
SELLER
BINHAD, INC. (formerly known as CAPITOL
METALS CO., INC.)
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Chief Executive Officer
Date: January 9, 1998
ASSIGNEE
ANGELES ACQUISITION CORP.
By: /s/ Xxxxxxxxx Xxxx
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Xxxxxxxxx Xxxx
Chief Executive Officer
Date: January 9, 1998
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