STOCK PURCHASE AND ESCROW AGREEMENT
THIS AGREEMENT dated as of May 20, 1999, is made by and between CASTOR
CAPITAL CORPORATION, an Ontario corporation (hereinafter "Buyer" or "Castor"),
FORT WORTH COLD STORAGE HOLDINGS, INC., an Ontario corporation (hereinafter
"Seller" or "FWCS"), ▇▇▇▇▇▇ REFRIGERATED WAREHOUSES, INC., a Texas corporation
(hereafter "ARW"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & COMPANY ("Agent" or "Escrow
Agent").
W I T N E S S E T H:
WHEREAS, ARW has executed that certain Note dated of even date herewith
in the original principal amount of $500,000.00 (the "Note") and issued certain
shares of ARW common stock to Seller in connection with ARW's purchase of real
property from Seller; and
WHEREAS, Castor has executed that certain Unconditional Guaranty of
even date herewith guaranteeing all of ARW's obligations under the Note; and
WHEREAS, the Seller owns and will own on the Closing Date (as
hereinafter defined) 300,000 shares of the outstanding common stock, issued by
ARW in connection with the Note, represented by Original Certificates No. ARW
201 and ARW 203; and
WHEREAS, the Seller desires to sell to the Buyer, or its assignee, and
the Buyer desires to acquire from the Seller, all of the shares of stock
described above owned by Seller (hereinafter the "Shares") in connection with
the satisfaction of the Note and subject to the conditions set forth herein; and
WHEREAS, Seller, Buyer and ARW desire to appoint the Agent as Escrow
Agent under the terms and conditions set forth herein.
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NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties and covenants herein contained, the parties hereby
agree as follows:
1. Purchase and Sale.
(a) Assets Sold.
The Buyer does hereby agree to purchase and the Seller hereby agrees to
sell, transfer and convey to the Buyer, or its assignee, at closing in
accordance with Paragraph 16 hereof all of the following property, rights and
claims of Seller (the "Assets"):
(1) All of the Shares;
(2) All of Seller's interests or rights in or claims against ARW, or
any one or more of them, if any, in addition to the Shares, as of the Closing
Date, of whatsoever nature or kind, whether now known or unknown, and whether
based upon an ownership interest or property right, an express or implied
contract, a legal duty, a claim or right arising from or based upon any act,
omission, breach of any legal duty or violation of statute by ARW, or by any of
their respective officers, directors, employees, agents or representatives, of
any kind whatsoever; and
(3) The Note.
(b) Consideration. In exchange for the sale and conveyance of
the Assets hereunder, and in reliance upon the representations and warranties of
the Seller contained herein, the Buyer agrees to pay Seller on the Closing Date
the sum of (i) $500,000.00, and (ii) the sum of $125.00/day for each day elapsed
after the date of this Agreement prior to the Closing Date. The amount
calculated under this subsection (ii) shall be payable on the first day of each
month occurring after the date hereof, commencing June 1, 1999. On the Closing
Date, the Buyer shall pay any
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amount so calculated after receiving credit for all amounts previously paid as
provided herein plus all outstanding principal and any other accrued interest.
(c) Certificates. The Seller agrees to deliver or cause the
Shares to be delivered to the Buyer or its assignee on or before the Closing
Date and after receipt of all amounts due and owing under the Agreement or Note.
The certificate or certificates representing the Shares shall be duly endorsed
in blank by the Seller, or accompanied by stock powers duly executed in blank.
The Seller agrees to cure or to cause to be cured any deficiencies with respect
to the endorsement of the certificates representing the Shares or with respect
to the stock powers accompanying any such shares.
(d) ▇▇▇▇ of Sale. After receipt of all amounts due and owing
under the Agreement or Note, the Seller agrees to convey all of the other Assets
to Buyer at the Closing by the execution and delivery of a ▇▇▇▇ of sale, or
other instrument of transfer, in form and substance acceptable to Buyer and to
endorse the Note as directed by Buyer.
2. The Closing. Unless this Agreement shall have been earlier
terminated pursuant to Section 26 hereof, the closing of the transactions
provided for in Section 1 of this Agreement (herein called the "Closing") shall
take place at the offices of Jenkens & ▇▇▇▇▇▇▇▇▇, a Professional Corporation,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, on or before one year
following the date of the Agreement, or at such earlier date or place as Buyer
may notify Seller of in writing by delivery of ten (10) business days prior
written notice. The date of the Closing is referred to in this Agreement as the
"Closing Date." In the event Buyer fails to perform its obligations hereunder,
Seller may demand performance from ARW within two (2) business days from
delivery of written notice to
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ARW. Upon ARW's failure to perform its obligations under the Note within two (2)
business days after receipt of demand from Seller, Seller may demand delivery of
the Shares from the Escrow Agent as provided in Paragraph 16 hereof. Upon
payment in full of the Note, Seller shall deliver same to ARW inscribed "Paid in
Full."
3. Appointment of Escrow Agent. ARW, FWCS and Castor hereby appoints
the Agent as the escrow agent under this Agreement and Escrow Agent hereby
accepts such appointment.
4. Deposit. ARW has delivered herewith to the Escrow Agent 100,000
shares of ARW common stock, Original Certificate No. ARW 201 and 200,000 shares
of ARW common stock, Original Certificate No. ARW 203, each issued in the name
of FWCS (collectively, the"Shares") to be held by Agent in accordance with the
terms hereof. Subject to and in accordance with the terms and conditions hereof,
Escrow Agent agrees that it shall hold in escrow and release or distribute the
Shares.
5. The Shares. Upon delivery of the Shares by ARW to Escrow Agent, ARW
shall immediately cause the books of ARW and ARW's stock transfer agent to
record the issuance of the Shares by ARW to FWCS. ARW covenants and agrees to
provide satisfactory evidence of the performance of this issuance on or before
ten (10) business days following the effective date hereof.
6. Scope of Undertaking. Escrow Agent's duties and responsibilities in
connection with this Agreement shall be purely ministerial and shall be limited
to those expressly set forth in this Agreement. Escrow Agent is not a principal,
participant or beneficiary in any transaction
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underlying this Agreement and shall have no duty to inquire beyond the terms and
provisions hereof. Escrow Agent shall have no responsibility or obligation of
any kind in connection with this Agreement or the Shares and shall not be
required to deliver the Shares or any part thereof or take any action with
respect to any matters that might arise in connection therewith, other than to
receive, hold and deliver the Shares as herein provided. Without limiting the
generality of the foregoing, it is hereby expressly agreed and stipulated by the
parties hereto that Escrow Agent shall not be required to exercise any
discretion thereunder and shall have no investment or management responsibility
except as otherwise expressly provided herein. Escrow Agent shall not be liable
for any error in judgment, any act or omission, any mistake of law or fact, or
for anything it may do or refrain from doing in connection herewith, except for,
subject to Paragraph 7 hereof, its own willful misconduct or gross negligence.
It is the intention of the parties hereto that Escrow Agent shall never be
required to use, advance or risk its own funds or otherwise incur financial
liability in the performance of any of its duties or the exercise of any of its
rights and powers hereunder.
7. Reliance; Liability. Escrow Agent may rely on, and shall not be
liable for acting or refraining from acting upon, any written notice,
instruction or request or other paper furnished to it hereunder or pursuant
hereto and believed by it to have been signed or presented by the proper party
or parties. Escrow Agent shall be responsible for holding and disbursing the
Shares pursuant to this Agreement; provided, however, that in no event shall
Escrow Agent be liable for any lost profits, lost savings or other special,
exemplary, consequential or incidental damages in excess of Escrow Agent's fee
hereunder and provided, further, that Escrow Agent shall have no
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liability for any loss arising from any cause beyond its control, including, but
not limited to, the following: (a) acts of God, force majeure, including,
without limitation, war (whether or not declared or existing), revolution,
insurrection, riot, civil commotion, accident, fire, explosion, stoppage of
labor, strikes and other differences with employees; (b) the act, failure or
neglect of any other party or any agent or correspondent or any other person
selected by Escrow Agent; (c) any delay, error, omission or default of any mail,
courier, telegraph, cable or wireless agency or operator, or (d) the acts or
edicts of any government or governmental agency or other group or entity
exercising governmental powers. Escrow Agent is not responsible or liable in any
manner whatsoever for the sufficiency, correctness, genuineness or validity of
the subject matter of this Agreement or any part hereof or for the transaction
or transactions requiring or underlying the execution of this Agreement, the
form or execution hereof or for the identity or authority of any person
executing this Agreement or any part hereof or depositing the Shares.
Notwithstanding the foregoing, Escrow Agent covenants to act in good faith in
performance of its duties.
8. Right of Interpleader. Should any controversy arise involving the
parties hereto or any of them or any other person, firm or entity with respect
to this Agreement or the Shares, or should a substitute escrow agent fail to be
designated, or if Escrow Agent should be in doubt as to what action to take,
Escrow Agent shall have the right, but not the obligation, either to (a)
withhold delivery of the Shares until the controversy is resolved, the
conflicting demands are withdrawn or its doubt is resolved or (b) institute a
petition for interpleader in any court of competent jurisdiction to determine
the rights of the parties hereto. In the event Escrow Agent is a party to any
dispute, Escrow Agent shall have the additional right to refer such controversy
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to binding arbitration. Should a petition for interpleader be instituted, or
should Escrow Agent be threatened with litigation or become involved in
litigation or binding arbitration in any manner whatsoever in connection with
this Agreement or the Shares, then, as between (a) all parties on the one hand
and (b) Escrow Agent on the other, ARW and Castor hereby jointly and severally
agree to reimburse Escrow Agent for its attorneys' fees and any and all other
expenses, losses, costs and damages incurred by Escrow Agent in connection with
or resulting from such threatened or actual litigation or arbitration prior to
any disbursement hereunder. Any such interpleader action shall be strictly
limited to matters arising under this Agreement. All periods of notice in
connection therewith shall take due account of the fact that certain parties
hereto do not reside in the United States and may be required to travel
significant distance in order to attend court proceedings or participate in
discovery.
9. Indemnification. ARW and Castor hereby jointly and severally
indemnify Escrow Agent, its officers, directors, partners, employees and agents
(each herein called an "Indemnified Party") against, and hold each Indemnified
Party harmless form, any and all expenses, including, without limitation,
attorneys' fees and court costs, losses, costs, damages and claims, including,
but not limited to, costs of investigation, litigation and arbitration, tax
liability and loss on investments suffered or incurred by any Indemnified Party
in connection with or arising from or out of this Agreement, except such acts or
omissions as may result from the willful misconduct or gross negligence of such
Indemnified Party. IT IS THE EXPRESS INTENT OF EACH OF THE PARTIES TO INDEMNIFY
AND HOLD HARMLESS THE INDEMNIFIED PARTIES
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FROM THEIR OWN NEGLIGENT ACTS OR OMISSIONS, PROVIDED SAID ACTIONS WERE IN GOOD
FAITH OF ESCROW AGENT.
10. Compensation and Reimbursement of Expenses. ARW hereby agrees to
pay Escrow Agent for its services hereunder the sum of $2,500.00, and to pay all
expenses incurred by Escrow Agent in connection with the performance of its
duties and enforcement of its rights hereunder and otherwise in connection with
the preparation, operation, administration and enforcement of this Agreement,
including, without limitation, attorneys' fees, brokerage costs and related
expenses incurred by Escrow Agent.
11. Lien. ARW hereby grants to Escrow Agent a lien upon, and security
interest in, all its right, title and interest in and to the Shares being held
by the Escrow Agent as security for the payment and performance of its
obligations owing to Escrow Agent hereunder, including, without limitation, its
obligations of payment, indemnity and reimbursement provided for hereunder.
12. Choice of Laws; Cumulative Rights. This Agreement shall be
construed under, and governed by, the laws of the State of Texas, excluding,
however, (a) its choice of law rules and (b) the portions of the Texas Trust
Code Sec. 111.001, et seq. of the Texas Property Code concerning fiduciary
duties and liabilities of trustees. All of Escrow Agent's rights hereunder are
cumulative of any other rights it may have at law, in equity or otherwise. The
parties hereto agree that the forum for resolution of any dispute arising under
this Agreement shall be Dallas County, Texas, and each of the parties hereby
consents, and submits itself, to the jurisdiction of any state or federal court
sitting in Dallas County, Texas.
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13. Severability. If one or more of the provisions hereof shall for any
reason be held to be invalid, illegal or unenforceable in any respect under
applicable law, such invalidity, illegality or unenforceability shall not affect
any other provisions hereof, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein, and
the remaining provisions hereof shall be given full force and effect, and any
invalid, illegal or unenforceable provision shall be revised so as to make it
legal, valid and enforceable so as to effectuate the intent of the parties
hereto.
14. Termination. This Agreement shall terminate upon (a) disbursement
of all the Shares in accordance with Paragraph 16 hereof, and (b) unless Escrow
Agent shall otherwise elect, full and final payment of all amounts required to
be paid to the Escrow Agent hereunder (whether fees, expenses, costs or
otherwise); provided, however, that in the event all such amounts required to be
paid to Escrow Agent by ARW hereunder are not fully and finally paid prior to
termination, the provisions of Paragraph 26 hereof shall survive the termination
hereof and, provided further, that the second and third sentences of Paragraph 7
hereof and the provisions of Paragraph 8 hereof shall, in any event, survive the
termination hereof.
15. General. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. This Agreement and any affidavit, certificate,
instrument, agreement or other document required to be provided hereunder may be
executed in two or more counterparts, each of which shall be deemed an original,
but all of which taken together shall constitute but one and the same
instrument. Unless the context shall otherwise require, the singular shall
include the plural and
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vice-versa, and each pronoun in any gender shall include all other genders. The
terms and provisions of this Agreement constitute the entire agreement among the
parties hereto in respect of the subject matter hereof, and neither (a) the
other parties on the one hand nor (b) Escrow Agent on the other has relied on
any representations or agreements of the other, except as specifically set forth
in this Agreement. This Agreement or any provision hereof may be amended,
modified, waived or terminated only by written instrument duly signed by the
parties hereto. This Agreement shall inure to the benefit of, and be binding
upon, the parties hereto and their respective heirs, devisees, executors,
administrators, personal representatives, successors, trustees, receivers and
permitted assigns. This Agreement is for the sole and exclusive benefit of all
parties and the Escrow Agent, and nothing in this Agreement, express or implied,
is intended to confer or shall be construed as conferring upon any other person
any rights, remedies or any other type or types of benefits.
16. Release of Deposit.
a. The Escrow Agent shall release and distribute the
Shares to FWCS upon certification by FWCS that (1) ARW
has defaulted on any of its material obligations under
the Note or the Deed of Trust or Buyer has defaulted on
any of its material obligations under this Agreement,
including, but not limited to, ARW's failure to pay the
Note or comply with the material provisions of the Loan
Documents, or failure to amend its current SB-2
registration statement in include the Shares and
failure of the registration to become effective on or
before 270 days from the date of this Agreement,
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and (2) Castor has failed to perform under its
Guaranty of the Note within two (2) business days of
receipt of written request thereof by Seller.
b. The Escrow Agent shall release and distribute
Certificate No. ARW 203 of the Shares to Castor or
its nominee upon certification by Castor and FWCS of
payment to FWCS of the consideration due under this
Agreement and shall deliver Certificate No. ARW 201
of the Shares to ARW;
c. The Escrow Agent shall release and distribute the
Shares to ARW upon written certification by ARW and
written confirmation by FWCS of performance by ARW of
its obligations under the Note.
17. Representations and Warranties. The parties hereto represent and
warrant that this Agreement constitutes a legal, valid and binding agreement and
that all parties have the authority to execute this Agreement in the stated
capacity. ARW represents that the Shares are validly issued and non-assessable
and that ARW is duly authorized to issue the Shares and perform the actions
contemplated by this Agreement.
18. Stock Power. FWCS shall deliver to the Escrow Agent stock powers
with respect to the Shares fully executed in blank.
19. ARW covenants and agrees to amend its current SB-2 registration
statement within 30 days from the date hereof to include the Shares covered
hereby. In the event the registration statement registering certain shares of
ARW on NASDAQ Small Cap National Market System, including the Shares covered by
this Agreement, is not effective on or before February 19, 2000, ARW shall be
deemed to be in default of the Note and FWCS shall be authorized to, inter alia,
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execute all of its rights and remedies set forth herein including, but not
limited to, taking possession of the Shares and causing same to be issued in the
name of FWCS, or its assigns and exercise its rights and remedies under the
Note, Deed of Trust and the Guaranty.
20. The Shares shall be held by the Escrow Agent under ARW's tax
identification number until such time as the Shares are disbursed in accordance
with Paragraph 16 hereof.
21. In the event ARW and Castor breach any material obligations
hereunder or under the Note, the Guaranty or the Deed of Trust (collectively,
the "Loan Documents"), said event or events shall constitute an event of default
hereunder and under the Loan Documents and FWCS shall be entitled to exercise
all of its rights and remedies hereunder and under the Loan Documents,
including, but not limited to, taking possession of the Shares and retaining
said Shares for its own account (including the unrestricted right of sale or
transfer), and FWCS may require Castor to purchase the Shares for all amounts
due hereunder and under the Loan Documents plus legal fees, expenses and court
costs.
22. In the event the bid price for ARW common stock ever falls below
$1.67 per share or in the event the Shares of ARW are merged into that of
another entity or there is a reverse stock split and the value of the Shares
falls below all amounts due under the Note, ARW covenants and agrees to issue
and deliver additional shares to Escrow Agent (in minimum increments of 10,000
shares) so that the number of Shares held by Escrow Agent hereunder multiplied
by the bid price of ARW common stock exceeds the outstanding balance due Seller
hereunder and under the Loan Documents.
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23. Conditions to Obligations of the Buyer. The obligations of the
Buyer under Section 1 of this Agreement shall, at the option of the Buyer, be
subject only to the following conditions:
(a) Seller's Representations and Warranties True at Closing.
The Buyer shall not have discovered any material error, misstatement or omission
in the representations and warranties made by the Seller in Section 17 hereof,
the representations and warranties made by the Seller in Section 17 of this
Agreement shall be true on and as of the Closing Date with the same effect as
though such representations and warranties had been made on and as of such date;
each and all of the material agreements and covenants of the Seller to be
performed or complied with on or before the Closing Date pursuant to the terms
hereof shall have been performed or complied with by the Closing Date.
(b) Absence of Restraint. No order to restrain, enjoin or
otherwise prevent the consummation of this Agreement or transactions in
connection herewith shall have been entered and, on the Closing Date, there
shall not be any pending or threatened litigation in any court, or any
proceeding by or before any governmental commission, board or agency, with a
view to seeking to restrain or prohibit consummation of the transactions
contemplated hereby or in which divestiture, rescission or significant damages
are sought in connection with the transactions contemplated hereby, and no
investigation by any governmental agency shall be pending or threatened which
might result in any such litigation or other proceeding arising from any
improper act or omission of Seller.
24. Conditions to Obligations of the Seller. The obligations of the
Seller under Section l of this Agreement shall, at the option of the Seller, be
subject only to the following conditions:
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(a) Delivery of the Consideration. At the Closing Buyer shall
timely deliver the consideration for the sale generally described in Section
1(b) above.
(b) Absence of Restraint. No order to restrain, enjoin or
otherwise prevent the consummation of this Agreement or transactions in
connection herewith shall have been entered and, on the Closing Date, there
shall not be any pending or threatened litigation in any court, or any
proceeding by or before any governmental commission, board or agency, with a
view to seeking to restrain or prohibit consummation of the transactions
contemplated hereby or in which divestiture, rescission or significant damages
are sought in connection with the transactions contemplated hereby, and no
investigation by any governmental agency shall be pending or threatened which
might result in any such litigation or other proceeding. Notwithstanding the
foregoing, in the event there is any order preventing the transfer of the Shares
as contemplated by this Agreement, said event shall be deemed a default
hereunder and Seller shall be entitled to exercise all of its rights and
remedies hereunder and under the Loan Documents.
25. Nature of Statements and Survival of Representations and Warranties
of Seller. Regardless of any investigation at any time made by or on behalf of
the Buyer or of any information the Buyer may have in respect thereof, all
covenants, agreements, representations and warranties made by the Seller shall
survive the Closing Date for a period of sixty (60) days.
26. Termination. This Agreement:
(a) may be terminated by the mutual written consent of the
Seller and Buyer;
(b) may be terminated by the Seller if a default shall be made
by the Buyer in the observance or in the due and timely
performance by the Buyer of any of the covenants of the
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Buyer herein contained or in the Loan Documents, or if there
shall have been a breach by the Buyer of any of the
warranties and representations of the Buyer herein
contained, or if the conditions of this Agreement or the
Loan Documents to be complied with or performed by the Buyer
or ARW at or before the Closing shall not have been timely
complied with or performed at the time required for such
compliance or performance and such noncompliance or
nonperformance shall not have been waived by the Seller.
In the event of termination by the Seller as provided above in
subsection (b), written notice thereof shall be given to the other parties at
least five (5) business days prior to the effective date of termination which
shall be explicitly stated in such written notice. The termination of this
Agreement pursuant to the foregoing provisions of this section 26 shall be
cumulative of any and all other remedies which any party may have for breach of
contract or warranty with respect thereto. Notwithstanding any other provision
of this Agreement to the contrary, it is expressly agreed that either Seller or
Buyer shall be entitled to specific performance so long as the party seeking
specific performance is not in default of any material provision hereof.
27. Miscellaneous
(a) Expenses. Whether or not the transactions contemplated
hereby shall be consummated, each of the parties will pay all costs and expenses
of its performance of and compliance with this Agreement, other than all fees
and expenses of the Escrow Agent, which shall be borne by ARW; provided,
however, that in the event Buyer or ARW breaches any of its obligations
hereunder or under the Loan Documents, Seller shall be entitled to all expenses
arising from such breach, including, but not limited to, court costs and
reasonable attorneys' fees.
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(b) Notices. All notices, requests, demands and other
communications required or permitted to be given hereunder shall be in writing
and shall be deemed to have been duly given upon receipt if personally
delivered, or if mailed, first class, registered or certified mail, postage
prepaid, three days after mailing in the United States mails to the parties at
the following addresses or at such other address as shall be given in writing by
any party to the other:
(1) if to the Seller to:
Fort Worth Cold Storage Holdings, Inc.
c/o
▇. ▇. ▇▇▇▇▇, III Esq.
▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(2) if to the Buyer to:
Castor Capital Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(3) if to ARW to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
J. ▇▇▇▇▇ ▇▇▇▇, Esq.
Jenkens & ▇▇▇▇▇▇▇▇▇
1400 Frost Bank Tower
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(c) Post-Closing Actions. The Seller shall deliver or cause to
be delivered to the Buyer on the Closing Date, and at such other times and
places as shall be reasonably agreed on, such
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additional instruments as the Buyer may reasonably request for the purpose of
carrying out this Agreement. The Buyer shall deliver or cause to be delivered to
the Seller on the Closing Date, and at such other times and places as shall be
reasonably agreed on by the parties, such additional instruments as the Seller
may reasonably request for the purpose of carrying out this Agreement.
Notwithstanding the foregoing, Seller shall not be responsible or liable for any
actions relating to the registration or transfer of the Shares and ARW and Buyer
covenant and agree to timely perform all necessary actions relating thereto and
to indemnify Seller from all costs, claims and liabilities arising therefrom.
(d) Assignment. Seller may not assign its rights under this
Agreement without first giving Buyer written notice thereof not less than five
(5) business days prior to such assignment.
(e) Successors Bound. Subject to the provisions of
paragraph(d) of this Section l, this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns. No obligations of ARW or Buyer may be assigned without the express
written consent of Seller.
(f) Section and Paragraph Headings. The section and paragraph
headings in this Agreement are for reference purposes only and shall not be
deemed to constitute a part of this Agreement or used to construe the meaning of
this Agreement.
(g) Gender. The masculine includes the feminine and the neuter
and the singular includes the plural where necessary to give effect to this
Agreement.
(h) Amendment. This Agreement may be amended only by an
instrument in writing executed by the parties hereto.
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(i) Entire Agreement. This Agreement and any exhibits, annexes
or schedules attached hereto and the documents specifically referred to herein,
including the Loan Documents, constitute the entire agreement, understanding,
representations and warranties of the parties hereto with respect to the
transactions contemplated hereby, and supersede all prior agreements,
arrangements and understandings related to the subject matter hereof. No
representation, promise, inducement or statement of intention has been made by
any party hereto which is not embodied in this Agreement, in the exhibits,
schedules or annexes attached hereto, if any, or in the written statements,
certificates or other documents delivered pursuant hereto or in connection with
the transaction contemplated hereby, including the Loan Documents, and no party
hereto shall be bound by or liable for any alleged representation, promise,
inducement or statement of intention not so set forth. The terms, provisions,
covenants, representations, warranties or conditions hereof may be waived only
by a written instrument executed by the party waiving compliance. The failure of
any party at any time or times to require performance of any provision hereof
shall in no manner affect the right to enforce the same. No waiver by any party
of any condition, or of the breach of any term, provision, covenant,
representation or warranty contained in this Agreement, whether by conduct or
otherwise, in any one or more instances, shall be deemed to be or construed as a
further or continuing waiver of any such condition or breach or a waiver of any
other condition or of the breach of any other term, provision, covenant,
representation or warranty.
(j) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument.
18
(k) Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Texas, is fully
performable in Dallas County, Texas and venue for resolution of any dispute
arising hereunder or in connection herewith shall lie exclusively in Dallas
County, Texas.
IN WITNESS WHEREOF, this Agreement has been duly executed by the Seller
and by the Buyer as of the date first above written.
SELLER:
------
FORT WORTH COLD STORAGE
HOLDINGS, INC.
By: /s/
------------------------------
Its: ATTORNEY IN FACT
BUYER:
-----
CASTOR CAPITAL CORPORATION
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
Its: CHAIRMAN AND CEO
PARTY:
-----
▇▇▇▇▇▇ REFRIGERATED WAREHOUSES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Its: VICE PRESIDENT - FINANCE
AGENT:
-----
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Its: PRESIDENT
19
