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EXHIBIT 10.71
AGREEMENT
THIS AGREEMENT ("Agreement") is made as of the 29th day of January, 1999,
between Consolidated Capital of North America, Inc., a Colorado corporation (the
"Company") and U.S. Steel Group of USX Corporation (the "Creditor").
RECITAL
WHEREAS, the Company has entered into an agreement pursuant to which the
Company will acquire substantially all of the assets and a majority of the
liabilities of Toledo Pickling and Steel Sales, Inc. ("TPSS");
WHEREAS, the Creditor is owed $3,166,362.88 (the "Debt") by TPSS;
WHEREAS, the Creditor and the Company desire to enter into this Agreement
pursuant to which the Company will issue to the Creditor Common Shares and a
Promissory Note of the Company, and make a cash payment to the Creditor, as set
forth in this Agreement in exchange for the cancellation of the Debt;
NOW, THEREFORE, in consideration of the foregoing and of the terms and
conditions contained in this Agreement, the Company and the Creditor agree as
follows:
1. SETTLEMENT OF DEBT.
1.1 CONSIDERATION TO BE ISSUED BY THE COMPANY. Subject to the terms and
conditions contained in this Agreement, the Company agrees to issue and pay to
the Creditor at the Closing (as herein defined), and the Creditor agrees to
accept at the Closing, in full satisfaction and cancellation of the Debt: (i)
Commons Shares of the Company with a market value of $1 million (the "Common
Shares"); (ii) a three-year convertible promissory note in the principal amount
of $2 million having the terms set forth in Exhibit A (the "Note"); and (iii) a
cash payment of $166,362.88 (the "Cash Payment").
1.2 Common Shares to be Issued
(a) The number of Common Shares to be issued to the Creditor at the
Closing based on the average of the closing bid and ask prices of the Company's
Common Shares for the ten trading days prior to the closing of the acquisition
of TPSS on January 12, 1999 of $.209 per share, shall be 4,784,689.
(b) Until registered under the Securities Act of 1933, as amended (the
"Securities Act"), the Common Shares will constitute "restricted securities" for
the purposes of the Securities Act and may not be sold, except upon compliance
with the registration requirements of the Securities Act and applicable state
securities laws or an exemption therefrom. The
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certificates evidencing the Common Shares shall include a legend to the
foregoing effect as set forth in paragraph 3.2(b) hereof.
(c) The Creditor will be prohibited from selling any of the Common Shares
within twelve months from the Closing, except if such sale is in accordance with
Regulation 204.011 of the Pennsylvania Securities Act of 1972 ("Registration
204.011"). The Creditor shall execute and deliver a Statement in the form
attached hereto as Exhibit B at the Closing. The Creditor represents and
warrants that it will not sell any of the Common Shares in violation of
Regulation 204.011. Stop transfer instructions regarding the restriction will be
issued to the transfer agent for the Company's stock, and an additional legend
in substantially the form set forth in Paragraph 3.2(b) hereof will be placed on
the back of the certificate issued to the Creditor.
2. CLOSING
2.1 Closing Date. The closing of the issuance of the Common Shares, the
Note and the Cash Payment and the cancellation of the Debt (the "Closing") is
conditioned on the closing of the acquisition of TPSS by the Company. The
Closing shall take place on January 29, 1999.
2.2 Closing Deliveries. At the Closing the Company shall deliver to the
Creditor a stock certificate for the Common Shares issued in the name of the
Creditor, the Note and the Cash Payment, In addition, the Company shall deliver
the following:
(a) A legal opinion of counsel to the Company as set forth in
Paragraph 5;
(b) A certificate of the secretary or an assistant secretary of the
Company attaching a complete and correct copy of the certificate of
incorporation, the bylaws and the resolutions duly adopted by its board of
directors authorizing the execution, delivery and performance of this Agreement
and the Notes; and certifying that such documents are currently in effect and
there has been no amendment or modification to the Company's articles of
incorporation or bylaws since the date thereof as reflected on the respective
copy and that the resolutions have not been rescinded or modified since the date
of adoption; and
(c) A certificate of the Chief Financial Officer of the Company
certifying that there has been no material adverse change in the financial
condition of the Company since September 30, 1998.
Upon delivery of the Common Shares, the Note and the Cash Payment, the Debt
shall be canceled in full.
3. REPRESENTATION AND WARRANTIES.
3.1 Representations and Warranties of the Company. The Company represents
and warrants that as of the date of this Agreement:
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(a) Existence. The Company is a corporation duly organized and in
good standing under the laws of the State of Colorado and is duly qualified to
do business and is in good standing in all states where such qualification is
necessary, except for those jurisdictions in which the failure to qualify would
not, in the aggregate, have a material adverse effect on the Company's financial
condition, results of operations or business.
(b) Authority. The execution and delivery by the Company of this
Agreement (i) is within the Company's corporate powers; (ii) is duly authorized
by the Company' board of directors; (iii) is not in contravention of the terms
of the Company's certificate of incorporation or bylaws; (iv) is not in
contravention of any law or laws; (v) except for any filing which may be
required pursuant to applicable state securities of "blue sky" laws, do not
require any governmental consent, registration or approval; (vi) does not
contravene any contractual or governmental restriction binding upon the Company;
and (vii) will not result in the imposition of any lien, charge, security
interest or encumbrance upon any property of the Company under any existing
indenture, mortgage, deed or trust, loan or credit agreement or other material
agreement or instrument to which the Company is a party or by which the Company
or any of the Company's property may be bound or affected.
(c) Binding Effect. This Agreement has been duly authorized, extended
and delivered by the Company and constitutes the valid and legally binding
obligation of the Company, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
(d) Capitalization. The authorized capital stock of the Company as of
January 25, 1999 consists of 200,000,000 shares of Common Stock, par value
$.0001 per share, 51,071,150 shares of which are issued and outstanding and
10,000,000 shares of Preferred Stock, par value $.01 per share, of which the
following Preferred Shares are authorized, issued and outstanding; Series A
Preferred Shares, par value $1.00 per share, authorized 1,000,000 shares,
744,000 shares issued and outstanding; Series B Preferred Shares, par value
$1.00 per share, authorized 1,000,000 shares, 449,000 shares issued and
outstanding; Series C Preferred Shares, stated value $10,000 per share,
authorized 200 shares, 0 shares issued and outstanding; Series D Preferred
Shares, stated value of $10,000 per share, authorized 350 shares, o shares
issued and outstanding, and Series E Preferred Shares, stated value $10,000 per
share, authorized 140 shares, 0 shares issued and outstanding. Since January 25,
1999, no additional shares of Common Stock or Preferred Stock have been issued
other than the Common Shares issued to the Creditor at Closing provided however,
up to 350 Series D Preferred Shares and 140 Series B Preferred Shares are
authorized for issuance to certain creditors and shareholders of Toledo pickling
and Steel Sales, Inc. As of the Closing, the Common Shares will duly and validly
authorized and when issued and delivered in accordance with the terms of this
Agreement, will duly and validly issued, fully paid and non-assessable.
(e) SEC Documents. The Company has furnished the Creditor with a true
and complete copy of the Company's Report on Form 8-K filed on January 27, 1998,
as amended on January 29, 1998 and March 27, 1998, Report on Form 8-K filed on
January 28, 1998 as amended on January 29, 1998, Report on Form 8-K filed on
March 18, 1998, Report on Form 8-K
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filed on May 1, 1998, Report on Form8-K filed on August 5, 1998, Report on Form
8-K filed on September 18, 1998, Report on Form 8-K filed on January 27, 1999,
the Company's Form 10-KSB for the fiscal year ended December 31, 1997, Form
10-QSB for the quarterly periods ended March 31, June 30, and September 30,
1998, and the Registration Statement on Form SB-2 (No. 333-60761) and the Proxy
Statement dated October 16, 1998 (the "Disclosure Documents"). Except as
disclosed in the Disclosure Documents, since December 31, 1997 the Company has
not incurred any material liability except in the ordinary course of its
business consistent with past practices, and there has not been any change in
the business, financial condition or results of operations of the Company which
has had a material adverse effect on the Company. Since January 1, 1997, the
Company 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
thereunder. As of their respective filing dates, the Disclosure Documents
complied in all material respects with the requirements of the Exchange Act, and
the rules and regulations of the SEC thereunder applicable to such Disclosure
Documents, and the Disclosure Documents did not contain any untrue statement of
a material fact or omit 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. The financial statements of the Company
included in the Disclosure Documents (the "Financial Statements") comply as to
form in all material respects with applicable accounting requirements and with
published rules and regulations of the SEC with respect thereto. The Financial
Statements are accurate, complete and have been prepared in accordance with the
books and records of the Company and in accordance with generally accepted
accounting principles applied on a consistent basis during the periods involved
(except as may be indicated in the notes thereto and fairly present (subject, in
the case of the unaudited statements, to normal, recurring audit adjustments
that are not material) the consolidated financial position of the Company as at
the dates thereof and the consolidated results of its operations and cash flows
for the periods then ended.
(f) Litigation. There is neither pending nor, to the Company's
knowledge and belief threatened any action, suit proceeding or claim, or any
basis therefor, to which the Company is or may be named as a party or its
property is or may be subject which may have a material adverse affect on the
financial position of the Company or which calls into question any of the
transactions contemplated by this Agreement. There are no governmental
proceedings pending or threatened under state or federal environmental laws
requiring disclosure under the Exchange Act.
(g) Securities Matters. Subject to the accuracy of the
representations of the Creditor set forth in Section 3.2 hereof, the offer, sale
and issuance of the Common Shares as contemplated by this Agreement are exempt
from the registration requirements under the Securities Act. The Company has
complied and will comply with all applicable state securities laws in connection
with the offer, sale and issuance of the Common Shares as contemplated by this
Agreement.
3.2 Representation and Warranties of the Creditor. The Creditor represents
and warrants that as of the date of the execution of this Agreement:
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(a) Authorization. This Agreement constitutes a valid and legally
binding obligation of such Creditor.
(b) Investment Representations.
(i) The Creditor has received the Company's Disclosure Documents
and the Creditor's designated representatives have had an opportunity to review
the documents provided by the Company and to ask all questions of management of
the Company.
(ii) The Creditor acknowledges that the Common Shares and the
Note are speculative and involve a high degree of risk.
(iii) The Creditor (or its members and/or officers) has
previously invested in unregistered securities and has sufficient financial and
investing expertise to evaluate and understand the risks of the Common Shares.
(iv) The Creditor has received from the Company, and is relying
on, no representations (except as set forth in this Agreement) or projections
with respect to the Company's business and prospects.
(v) The Creditor is an "accredited investor" within the meaning
of Regulation D under the Securities Act.
(vi) The Creditor is acquiring the Common Shares for investment
purposes only without intent to distribute the same, and acknowledges that the
Common Shares have not been registered under the Securities Act and applicable
state securities laws, and accordingly, constitute "restricted securities" for
purposes of the Securities Act and such securities laws.
(vii) The Creditor acknowledges that it will not be able to
transfer the Common Shares except upon compliance with registration requirements
of the Securities Act and applicable state securities laws or exemption
therefrom.
(viii) The certificates and/or instruments evidencing the Common
Shares will contain the following legends:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT, AN EXEMPTION THEREFROM OR
COMPLIANCE WITH RULE 144 PROMULGATED THEREUNDER. THE SHARES REPRESENTED BY THIS
STOCK CERTIFICATE SHALL NOT BE SOLD UNTIL JANUARY 29, 2001, EXCEPT IN ACCORDANCE
WITH REGULATION 204.011 OF THE PENNSYLVANIA SECURITIES ACT OF 1972.
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4. OTHER AGREEMENTS OF THE COMPANY.
The Company agrees that on or after thirty (30) days from the closing
it will, within thirty (30) days of the Creditor's written request for such and
at the Company's cost, file a Registration Statement with the Securities and
Exchange Commission under the Securities Act to cause the Common Shares as well
as the shares of Common Stock issuable upon conversion of the Note to become
registered thereunder for resale by the Creditor (the "Registration Statement")
and the Company agrees that it will use its best efforts to cause such
Registration Statement to be declared effective. The Creditor shall have on such
demand registration right. The Company also agrees to qualify the sale of all
shares of Common Stock under such state securities laws as may be required in
connection with the sale of shares of Common Stock by the Creditor.
5. CONDITIONS TO THE CREDITOR'S OBLIGATIONS.
The company shall provide as if the date of Closing in form and
substance satisfactory to the Creditor, an opinion of counsel to the Company to
the effect that:
(a) The Company is a corporation duly organized and in good standing under
the laws of the State of Colorado and is duly qualified to do business and is in
good standing in all states where such qualification is necessary, except for
those jurisdictions in which the failure to qualify would not, in the aggregate,
have a material adverse effect on the Company's financial condition, results of
operations or business.
(b) The execution and delivery by the Company of this Agreement (i) is
within the Company's corporate powers: (ii) is duly authorized by the Company's
board of directors; (iii) is not in contravention of the terms of the Company's
certificate of incorporation or bylaws; (iv) is not in contravention of any law
or laws; (v) except for any filing which may be required pursuant to applicable
state securities of "blue sky" laws, do not require any governmental consent,
registration or approval; (vi) does not contravene any contractual or
governmental restriction binding upon the Company, and (vii) will not result in
the imposition of any lien, charge, security interest or encumbrance upon any
property of the Company under any existing indenture, mortgage, deed of trust,
loan or credit agreement or other material agreement or instrument to which the
Company is a party or by which the Company or any of the Company's property may
be bound or affected.
(c) This Agreement has been duly authorized, executed and delivery by the
Company and constitutes the valid and legally binding obligation of the Company,
enforceable in accordance with its terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(d) The authorized capital stock of the Company as of January 25, 1999
consists of 200,000,000 shares of Common Stock, par value $.0001 per share,
51,071,150 share of which are issued and outstanding and 10,000,000 shares of
Preferred Stock, par value $.01 per share of which the following Preferred
Shares are authorized, issued and outstanding: Series A Preferred Shares, par
value $1.00 per share, authorized 1,000,000 shares, 744,000 shares issued and
outstanding; Series B Preferred Shares, par value $1.00 per share, authorized
1,000,000 shares 449,000 shares issued and outstanding ; Series C Preferred
Shares, stated value $10,000 per
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share, authorized 200 shares, 0 shares issued and outstanding; Series D
Preferred Shares, stated value of $10,000 per share, authorized 350 shares, 0
shares issued and outstanding; and Series E Preferred Shares, stated value
$10,000 per share, authorized 140 shares, 0 shares issued and outstanding. Since
January 25, 1999, no additional shares of Common Stock or Preferred Stock have
been issued other than the Common Shares issued to the Creditor at Closing,
provided, however, up to 350 Series D Preferred Shares and 140 Shares Series E
Preferred Shares are authorized for issuance to certain creditors and
shareholders of Toledo Pickling and Steel Sales, Inc.
(e) Since January 1, 1997, the Disclosure Documents (other than the
Registration Statement on Form SB-2 (File No. 333-60761) constitute all
documents required to be filed with the SEC pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder. As of their respective filing dates, the Disclosure
Documents compiled in all material respects with the requirements of the
Exchange Act, and the rules and regulations of the SEC thereunder applicable to
such Disclosure Documents, and the Disclosure Documents did not contain any
untrue statement of a material fact or omit 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.
(f) There is neither pending nor, to such counsel's knowledge and belief,
threatened, any action, suit, proceeding or claim, or any basis therefor, to
which the Company is or may be named as a party or its property is or may be
subject which may have a material adverse effect on the financial position of
the Company or which calls into question any of the transactions contemplated by
this Agreement. There are no governmental proceedings pending or threatened
under state or federal environmental laws requiring disclosure under the
Exchange Act.
(g) Subject to the accuracy of the representations of the Creditor set
forth in Section 3.2 hereof, the offer, sale and issuance of the Common Shares
as contemplated by this Agreement are exempt from the registration requirements
under the Securities Act. The Company has complied with all applicable state
securities laws in connection with the offer, sale and issuance of the Common
Shares as contemplated by the Agreement.
6. MISCELLANEOUS.
6.1 Confidentiality.
(a) The Creditor agrees to keep confidential any and all non-public
information delivered or made available to the Creditor by the Company and
identified as confidential, except for disclosures, as necessary, made by the
Creditor to the Creditor's officers, directors, employees, agents, counsel and
accountants each of whom shall be notified by the Creditor of this
confidentiality covenant and for whom the Creditor shall be liable in the event
of any breach of this covenant by any such individual or individuals; provided,
however that nothing herein shall prevent the Creditor from disclosing such
information (a) upon the order of any court or administrative agency, (b) upon
the request or demand of any regulatory agency or authority having jurisdiction
over the Creditor, (c) which has been publicly disclosed, or (d) to any of its
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members provided that any such members agree in writing (with a copy provided to
the Company) to be bound by confidentiality provisions in form and substance
substantially as are contained herein. In the event of a mandatory disclosure as
described in clause (a) and/or (b) of the preceding sentence, the Creditor shall
promptly notify the Company in writing of any applicable order, request or
demand for such information, cooperate with the Company if and to the extent
that the Company elects to seek an appropriate protective order or other relief
from such order, request, or demand, and disclosure only the minimal amount of
information ultimately required to be disclosed. The Creditor shall not use for
its own benefit, nor permit any other person to use for such person's benefit,
any of the Company's non-public information including without limitation, in
connection with the purchase and/or sale of the Company's securities.
(b) The Company shall in no event disclose non-public information to the
Creditor, advisors to or representatives of the Creditor unless prior to
disclosure of such information the Company marks such information as "Non-Public
Information-Confidential" and provides the Creditor, such advisors and
representatives with the opportunity to accept or refuse to accept such
non-public information for review. The Company may, as a condition to disclosing
any non-public information hereunder, require the Creditor's advisors and
representatives to enter into a confidentiality agreement in form reasonably
satisfactory to the Company and the Creditor.
6.2 Default and Rights and Remedies. Upon the occurrence to default, the
Creditor shall have the rights and remedies set forth in the Note and the rights
and remedies available to the Creditor under applicable law.
6.3 Assignability, Successors.The provisions of this Agreement shall inure
to the benefit of and be binding upon the permitted successors and assigns of
the parties hereto.
6.4 Survival. All agreements, covenants, representations and warranties
made by the Company or by the Creditor herein shall survive the execution and
delivery of this Agreement.
6.5 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED ACCORDING TO THE LAWS
OF THE COMMONWEALTH OF PENNSYLVANIA WITHOUT GIVING EFFECT TO THE PRINCIPLES
THEREOF RELATING TO CONFLICTS OF LAWS.
6.6 Counterparts Headings. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but such counterparts
shall together constitute but one and the same agreement. The descriptive
headings in this Agreement are inserted for convenience of reference only and
shall not affect the construction of this Agreement.
6.7 Entire Agreement Amendments. This Agreement and the Exhibits contain
the entire understanding of the parties with respect to the subject matter
hereof, and supersede all other representations and understandings, oral or
written, with respect to the subject matter
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hereof. No amendment, modification, alteration, or waiver of the terms of this
Agreement or consent required under the terms of this Agreement shall be
effective unless made in a writing, which makes specific reference to this
Agreement and which has been signed by the Company and such Creditor. Any such
amendment, modification, alteration, waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given.
6.8 Notices. All communications or notices required or permitted by this
Agreement shall be in writing and shall be deemed to have been given or made
when delivered in hand, deposited in the mail, or sent by facsimile, with
confirmation (if sent by facsimile on a non-business day, receipt shall be
deemed to have occurred on the next succeeding business day).
Communications or notices shall be delivered personally or by certified or
registered mail, postage, or by facsimile and addressed as follows, unless and
until either of such parties notifies the other in accordance with this Section
of a change of address;
if to the Company: Consolidated Capital of North America, Inc.
000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: Secretary
Tel: (000) 000-0000
Fax: (000) 000-0000
with copies to: Xxxxxxxxx, Xxxxxx & Xxxxxx
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
if to the Creditor: Treasurer
U.S. Steel Group of USX Corporation
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
6.9 Severability. Whenever possible, each provision of this agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or he remaining provisions of this Agreement.
10.10 Recision. Pursuant to Section 207(m) of the Pennsylvania Securities
Act of 1972, the following notice is provided to the Creditor:
"EACH PERSON WHO ACCEPTS AN OFFER TO PURCHASE SECURITIES EXEMPTED FROM
REGISTRATION BY SECTION 203(d), DIRECTLY FROM THE
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ISSUER OR AFFILIATE OF THE ISSUER, SHALL HAVE THE RIGHT TO WITHDRAW HIS
ACCEPTANCE WITHOUT INCURRING ANY LIABILITY TO THE SELLER, UNDERWRITER (IF ANY)
OR ANY OTHER PERSON WITHIN 2 BUSINESS DAYS FROM THE DATE OF RECEIPT BY THE
ISSUER OF HIS WRITTEN BINDING CONTRACT OF PURCHASE OR, IN THE CASE OF A
TRANSFACTION IN WHICH THERE IS NO BINDING CONTRACT OF PURCHASE, WITHIN 2
BUSINESS DAYS AFTER HE MAKES THE INITIAL PAYMENT FOR THE SECURITIES BEING
OFFERED. YOUR WITHDRAW WILL BE WITHOUT ANY FURTHER LIABILITY TO ANY PERSON AND
YOU MAY RECEIVE A FULL REFUND OF ALL MONIES PAID BY YOU. TO ACCOMPLISH THIS
WITHDRAW, YOU NEED ONLY SEND A LETTER OR TELEGRAM TO THE ISSUER INDICTING YOUR
INTENTION TO WITHDRAW. SUCH LETTER OR TELEGRAM SHOULD BE SENT AND POSTMARKED
PRIOR TO THE END OF THE AFORMENTIONED SECOND BUSINESS DAY. IF YOU ARE SENDING A
LETTER, IT IS PRUDENT TO SEND IT BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO
ASSURE THAT ITS RECEIVED AND ALSO TO EVIDENCE THE TIME WHEN IT WAS MAILED.
SHOULD YOU MAKE THE REQUEST ORALLY, YOU SHOULD ASK FOR WRITTEN CONFIRMATION THAT
YOUR REQUEST HAS BEEN RECEIVED."
IN WITNESS WHEREOF, this Agreement was duly executed on the date first
written above, as confirmed by signatory below. Facsimile signature of this
Agreement shall be binding on all parties hereto. Signature of Issuer:
CONSOLIDATED CAPITAL OF NORTH AMERICA, INC.
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
President and Chief Operating Officer
Signatory of Creditor:
U.S. Steel Group
Of USX Corporation
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
By: /s/ Torrance X. X'Xxxxxx
---------------------------------
Torrance X. X'Xxxxxx
Treasurer of U.S. Steel Group
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