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DMP/TDB: 9/26/95
AGREEMENT OF PURCHASE AND SALE
OF ASSETS
by and between
DPD MANUFACTURING, INC.,
("Seller")
and
FALCON PRODUCTS, INC.
("Buyer")
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AGREEMENT OF PURCHASE AND SALE
OF ASSETS
THIS AGREEMENT OF PURCHASE AND SALE OF ASSETS ("Agreement") is made and
entered into as of the 29th day of September, 1995, by and between DPD
MANUFACTURING, INC., a California corporation ("Seller"), and FALCON PRODUCTS,
INC., a Delaware corporation ("Buyer").
RECITALS AND CERTAIN DEFINITIONS
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A. Seller owns all of the equipment and tooling used in the production of
fiberglass products at 400, 410 and 000 Xxxxxxxxx Xxxxxx, Xxxxx.
B. Buyer desires to purchase from Seller and Seller desires to sell to
Buyer, on the terms and subject to the conditions of this agreement, such
equipment and tooling in exchange for the cash and other consideration of
Buyer described herein.
C. For purposes of this Agreement, the terms set forth below shall have
the following meanings:
"ASSETS" means the Equipment.
"XXXX OF SALE" is defined in Section 7(a)(i).
"CASH EQUIVALENT" means a wire transfer of funds or other good and
immediately available funds.
"CLOSING" means the closing at which the transfer of the Assets shall
take place as provided herein.
"CLOSING DATE" is defined in Section 5.
"EQUIPMENT" means all of the equipment and tooling of Seller used by
Decor Concepts, Inc. in production of fiberglass products and located at the
Real Property.
"LEASE" means that certain lease between ACR Investments, Inc. as
lessor and Decor Concepts, Inc. as lessee dated August 1, 1994 and assigned to
Seller by assignment dated August 28, 1995, a copy of which is attached hereto
as Exhibit B.
"REAL PROPERTY" means the real property leased to Seller pursuant to
the Lease and that certain property leased to Decor Concepts, Inc. located at
000 Xxxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxxxx.
The terms of this Agreement are as follows:
1. Purchase of Sale. Seller agrees to sell to Buyer, and Buyer agrees
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to purchase from Seller, the Assets upon the terms and conditions set forth in
this Agreement.
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2. Payment of Purchase Price. Subject to the prorations and
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adjustments provided for in this Agreement, the purchase price for the Assets
to be transferred to Buyer hereunder shall be THREE HUNDRED THOUSAND DOLLARS
($300,000.00), payable in full by Buyer to Seller at the Closing in cash or
Cash Equivalent.
3. Other Obligations of Buyer. It is expressly understood and agreed
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that Buyer shall not be liable for any of the obligations or liabilities
of Seller of any kind and nature other than those specifically assumed by
Buyer under this Section 3.
(a) Assumption of Lease. Buyer agrees to assume the Lease from
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Seller as of the Closing, and at the Closing shall pay to Seller the security
deposit thereunder.
(b) Execution of New Lease. At the Closing, Buyer agrees to
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execute a new lease for the real property at 000 Xxxxxxxxx Xxxxxx, Xxxxx,
California in the form attached hereto as Exhibit "C."
(c) Sales and Use Taxes, Etc. Buyer shall pay all sales and use
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taxes arising out of the transfer of the Assets and shall pay its portion,
prorated as of the Closing Date, of state and local personal property taxes of
the Assets.
4. Representations and Warranties.
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(a) Seller's Representations and Warranties. In addition to any
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express agreements of Seller contained herein, the following constitute
representations and warranties of Seller and shall be true and correct as of
the Closing, and shall survive the Closing for a period of one year:
(i) Power. Seller has the legal power, right and authority to
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enter into this Agreement and the instruments referenced herein,
and to consummate the transactions contemplated hereby.
(ii) Requisite Action. All requisite corporate action has been
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taken by Seller in connection with the entering into this
Agreement and the instruments referenced herein, and the
consummation of the transactions contemplated hereby.
(iii) Authority. The individuals executing this Agreement and
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the instruments referenced herein on behalf of the Seller have the
legal power, right and actual authority to bind Seller to the
terms and conditions herein and thereof.
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(iv) Title to Assets. Seller has good and marketable title to
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all of the Assets, free and clear of all debts, claims, security
interests, liens, encumbrances and other title retention
agreements, pledges, assessments, covenants, restrictions and
charges of every nature, except as set forth in Exhibit "A".
(v) Litigation. There are no legal actions, arbitrations or
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other legal, administrative or governmental proceedings pending
or, to the knowledge of Seller, threatened against Seller or the
Assets which are reasonably likely to negatively affect the
transfer of the Assets as contemplated hereunder or Buyer's use
of the Assets following the Closing.
(vi) Environmental Matters. To the best of its knowledge,
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Seller has complied in all material respects with all federal,
state and local laws, statutes, rules and regulations relating to
the environment or to occupational health and safety (the
"Environmental Laws") applicable to the Assets. To the best of
knowledge of Seller, there is no pending or threatened civil or
criminal litigation, written notice of violation, formal
administrative proceeding, or investigation, inquiry or
information request by any governmental entity relating to any
Environmental Law involving the Assets.
(b) Buyer's Representations and Warranties. In addition to any
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express agreements of Buyer contained herein, the following constitute
representations and warranties of Buyer and shall be true and correct as of
the Closing, and shall survive the Closing for a period of one year:
(i) Power. Buyer has the legal power, right and authority
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to enter into this Agreement and the instruments referenced
herein, and to consummate the transactions contemplated hereby.
(ii) Requisite Action. All requisite corporate action has
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been taken by Buyer in connection with the entering into this
Agreement and the instruments referenced herein, and the
consummation of the transactions contemplated hereby.
(iii) Authority. The individuals executing this Agreement
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and the instruments referenced herein on behalf of the Buyer
have the legal power, right and actual authority to bind Buyer
to the terms and conditions herein and thereof.
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5. Closing. The transfer of the Assets by Seller to Buyer (the
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Closing) shall take place at the offices of Argue Xxxxxxx Xxxxxxxx & Xxxxx, 000
X. Xxxxxx Xxxxxx , Xxx Xxxxxxx, Xxxxxxxxxx at 9:00 a.m. local time, on
September 29, 1995 (the "Closing Date"), effective as of 11:59 p.m., September
30, 1995, or at such other time and place as the parties may agree to in
writing.
6. Conditions to the Closing.
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(a) Conditions Precedent to Buyer's Obligations. The Closing and
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Buyer's obligations with respect to the transaction contemplated by this
Agreement are subject to:
(i) Buyer's investigation of the state of title to and the
condition of the Assets and Buyer's approval thereof based upon
Buyer's investigations, tests, survey(s) and studies (including,
title, zoning, building codes, environmental inspections, other
governmental regulations, architectural inspections, engineering
tests, economic feasibility studies and soils, seismic and
geological reports and review of all items delivered to Buyer by
Seller) with respect to the Assets as Buyer may elect to make or
obtain. The costs of all such investigations, tests, survey(s)
and studies conducted by Buyer shall be borne and paid by Buyer.
In the event Buyer elects to terminate this Agreement or if this
Agreement is otherwise terminated, Buyer agrees to deliver to
Seller all documents, records, plans, contracts or other items
which were delivered to Buyer by Seller. The preceding sentence
shall survive any termination of this Agreement. Buyer's failure
to disapprove such matters in writing on or prior to the Closing
Date shall be deemed approval thereof.
(ii) Seller's delivery of the items described in Section 7(a)
hereof, not later than the Closing Date (unless otherwise
provided).
(iii) The delivery of possession of the Assets to Buyer on
the Closing Date.
(iv) The timely performance by Seller on or before the Closing
Date of each and every undertaking and obligation of Seller under
this Agreement, including the covenants and agreements of Seller
hereunder, and all representations and warranties of Seller
hereunder being true on and as of the Closing Date.
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(v) The simultaneous closing of that certain Agreement of
Purchase and Sale of Assets by and between Decor Concepts, Inc.
and Buyer.
(vi) Due execution of the new lease, the form of which is
attached hereto as Exhibit "C".
(b) Conditions Precedent to Seller's Obligations. The Closing and
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Seller's obligations with respect to the transactions contemplated by this
Agreement are subject to:
(i) Buyer's delivery to Seller not later than the Closing
Date of the documents described in Section 7(b) and the purchase
price and other consideration in accordance with Section 2 of this
Agreement.
(ii) The timely performance by Buyer on or before the Closing
Date of each and every undertaking and obligation of Buyer under
this Agreement, including the covenants and agreements of Buyer
hereunder, and all representations and warranties of Buyer
hereunder being true on and as of the Closing Date.
(iii) The simultaneous closing of that certain Agreement of
Purchase and Sale of Assets by and between Decor Concepts, Inc.
and Buyer.
(iv) Due execution of the new lease, the form of which is
attached hereto as Exhibit "C".
(c) Failure of Conditions to Closing. In the event any of the
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conditions set forth in Section 6(a) or Section 6(b) are not timely satisfied
or are not waived, for a reason other than the material breach of Buyer or
Seller under this Agreement:
(i) This Agreement and the rights and obligations of Buyer
and Seller shall terminate, except as otherwise provided herein;
(ii) Each party shall return to the other any documents or
funds of the other party held by them.
7. Deliveries at Closing.
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(a) Seller's Deliveries. Seller hereby covenants and agrees to
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deliver or cause to be delivered to Buyer on or prior to the Closing Date the
following instruments and documents, the delivery of each of which shall be a
condition to the Closing:
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(i) Xxxx of Sale. A Xxxx of Sale ("Xxxx of Sale"), in the
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form attached hereto as Exhibit D, duly executed by Seller,
conveying to Buyer all of Seller's right, title and interest in
and to the Equipment.
(ii) Lease Assignment. An assignment of the Lease, properly
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executed and acknowledged by Seller.
(iii) Proof of Authority. Such proof of Seller's authority
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and authorization to enter into this Agreement and the
transactions contemplated hereby, and such proof of the power and
authority of the individual(s) executing and/or delivering any
instruments, documents or certificates on behalf of Seller to act
for and bind Seller as may reasonably be required by Buyer.
(b) Buyer's Deliveries. Buyer hereby covenants and agrees to
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deliver to cause to be delivered to Seller on or prior to the Closing the
following funds, instruments and documents, the delivery of each of which
shall be a condition to the Closing:
(i) Purchase Price. The Purchase Price as required by
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Section 2 of this Agreement.
(ii) Documents. Duly executed counterparts of the Xxxx of
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Sale and the Lease Assignment (evidencing Buyer's assumption
thereof in such form and substance as shall be reasonably
acceptable to Seller).
(iii) Proof of Authority. Such proof of Buyer's authority
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and authorization to enter into this Agreement and the
transactions contemplated hereby, and such proof of the power and
authority of the individual(s) executing and/or delivering any
instruments, documents or certificates on behalf of Buyer to act
for and bind Buyer as may reasonably be required by Seller.
8. Bulk Sale. Buyer waives compliance with the provisions of the
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California Commercial Code relating to bulk transfers in connection with this
sale of assets. Nothing in this Section shall estop or prevent either Buyer or
Seller from asserting as a bar or defense to any action or proceeding brought
under that law that it does not apply to the sale contemplated under this
agreement.
9. Publicity. All notices to third parties (other than landlords) and
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all other publicity concerning the transactions contemplated by this agreement
shall be jointly planned and
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coordinated by and between Buyer and Seller. No party shall act unilaterally
in this regard without the prior written approval of the others; however, this
approval shall not be unreasonably withheld or delayed.
10 . Costs and Expenses. Each party shall pay all costs and expenses
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incurred or to be incurred by it in negotiating and preparing this agreement
and in closing and carrying out the transactions contemplated by this
agreement.
11. Prorations.
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(a) General. Property taxes and assessments, and operating
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expenses and other expenses, if any, arising from or affecting the Assets
shall be prorated as of the Closing Date.
(b) Taxes and Assessments. All non-delinquent property taxes and
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assessments on the Assets shall be prorated based on the actual most recent
tax xxxx.
(c) Operating Expenses. All utility service charges for
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electricity, heat and air conditioning service, other utilities, common area
maintenance, and other expenses incurred in connection with the Real Property
that Seller customarily pays, and any other costs incurred in the ordinary
course of business or the management and operation of the Assets, shall be
prorated on an accrual basis. Seller shall pay all such expenses that accrue
prior to the Closing Date and Buyer shall pay all such expenses accruing on
the Closing Date and thereafter.
(d) Method of Proration. Buyer and Seller agree to prepare a
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schedule of tentative adjustments within a reasonable time after the Closing,
but no later than thirty (30) days after the Closing in any event. Such
adjustments if and to the extent known and agreed upon shall be paid by Buyer
to Seller (if the prorations result in a net credit to the Seller) or by
Seller to Buyer (if the prorations result in a net credit to the Buyer) in
cash or Cash Equivalent.
12. Reserved.
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13. Reserved.
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14. Reserved.
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15. Reserved.
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16. Additional Representations of Seller.
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(a) Maintenance of the Assets. From and after the commencement of
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discussions with Buyer regarding this transaction and through the Closing
Date, Seller has (i) operated, maintained
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and managed the Business in accordance with its present practices; and (ii)
discharged and complied with its obligations under the Lease to be assumed by
Buyer.
(b) Lease to be Assumed. From and after the commencement of
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discussions with Buyer regarding this transaction and through the Closing
Date, Seller has not amended, altered or modified the Lease in any material
way.
17. Notices. All notices or other communications required or permitted
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hereunder shall be in writing, shall be personally delivered (including by
means of professional messenger service), or telefaxed with subsequently
mailed confirmation or sent by certified mail, postage prepaid, return receipt
requested, or overnight delivery service, shall be deemed received upon the
date of receipt thereof, and shall be delivered to the parties at the
following addresses:
To Seller: DPD MANUFACTURING, INC.
0000 X. Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx or
Xxxxx XxXxxxx
Telefax No.: (000) 000-0000
With a copy to: Argue Xxxxxxx Xxxxxxxx & Xxxxx
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxx X. Xxxxxxx or
Xxxx Xxxxxx Xxxx
Telefax No.: (000) 000-0000
To Buyer: FALCON PRODUCTS, INC.
0000 Xxxxxxx Xxxxxxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Telefax No.: (000) 000-0000
With a copy to: Gallop, Xxxxxxx & Xxxxxx, X.X.
000 Xxxxx Xxxxxx Xxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Telefax No.: (000) 000-0000
Notice of change of address shall be given by written notice in the manner
detailed in this Section 17.
18. No Broker. Each party represents and warrants that it has dealt
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with no broker or finder in connection with any
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transaction contemplated by this agreement, and, as far as it knows, no broker
or other person is entitled to any commission or finder's fee in connection
with any of these transactions.
19. Required Actions of Buyer and Seller. Buyer and Seller agree to
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execute all such instruments and documents and to take all reasonably
necessary actions pursuant to the provisions hereof in order to consummate the
purchase and sale herein contemplated and shall use their commercially
reasonable efforts to accomplish the Closing in accordance with the provisions
hereof.
20. Entry and Approvals by Buyer.
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(a) Entry. Prior to the Closing Date, Buyer and Buyer's
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representatives, agents and designees shall have the right, upon twenty-four
(24) hours' prior notice to Seller and during reasonable business hours, to
enter upon the Real Property, at Buyer's own cost, in connection with its
proposed purchase, development or operation of the Assets, including, without
limitations, the right to examine all books, records and files of Seller
relating to the Business and the right to make such inspections,
investigations and tests (including all mechanical systems) as Buyer may elect
to make or obtain. Seller agrees to make all such books, records and files
available to Buyer and Buyer's attorneys, accountants and other
representatives at any time on or prior to the Closing Date during reasonable
business hours upon twenty four (24) hours' prior notice from Buyer. Buyer
hereby indemnifies Seller and holds it forever harmless from any and all
claims, demands, liabilities, costs, expenses, penalties, damages and losses
(including, without limitation, actual attorneys' fees) arising out of such
entry. The preceding sentence shall survive any termination of this Agreement
and the Closing.
(b) Approvals. As a material inducement to the execution and
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delivery of this Agreement by Seller and the performance by Seller of its
duties and obligations hereunder, Buyer does hereby acknowledge, represent,
warrant and agree that, as of the Closing, except as otherwise expressly
provided herein (i) Buyer is purchasing the Assets in an "AS IS" condition
with respect to any facts, circumstances, conditions and defects of all kinds,
including without limitation, with respect to the existence of any hazardous
or toxic substances as defined under local, state or federal law; (ii) Seller
has no obligation to repair or correct any such facts, circumstances,
conditions or defects or compensate Buyer for same; (iii) based upon all
physical inspections, examinations and tests of the Real Property as Buyer
deems necessary or appropriate under the circumstances, Buyer is and will be
relying strictly and solely upon such inspections and examinations and the
advice and counsel of its own agents and officers and the Buyer is and will be
fully satisfied that the purchase price and consideration is fair and adequate
consideration for the Assets; (iv) Seller is not making and has not made any
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warranty or representation with respect to the physical condition of all or
any part of the Assets as an inducement to the Buyer to purchase the Assets or
for any other purpose, except as otherwise expressly stated herein; and (v) by
reason of all of the foregoing, Buyer shall assume the full risk of any loss
or damage occasioned by any fact, circumstance, condition or defect pertaining
to the physical condition of the Assets which is capable of being observed or
ascertained, except as otherwise expressly stated herein. EXCEPT AS OTHERWISE
PROVIDED OR LIMITED BY THE TERMS OF THIS AGREEMENT, BUYER ACKNOWLEDGES AND
AGREES THAT THIS SALE AND ASSIGNMENT IS MADE "AS IS" AND "WHERE IS," WITHOUT
ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION, IMPLIED WARRANTIES OF SUITABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE OF MERCHANTABILITY OR ANY OTHER WARRANTIES WHATSOEVER CONTAINED IN OR
CREATED BY CALIFORNIA CODES OR OTHERWISE.
21. Reserved.
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22. Assignment. Buyer shall not assign, transfer or convey its rights
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and obligations under this Agreement or in the Assets without the prior
written consent of Seller, which consent may be withheld at Seller's sole
discretion. Notwithstanding the foregoing, Buyer shall have a one (1) time
right to assign its rights and obligations under this Agreement without
consent of Seller to any person or entity controlling, controlled by or under
common control with Buyer. Any permitted assignee shall succeed to all the
rights and remedies hereunder. Notwithstanding the foregoing, no such
assignment shall relieve the assigning party from its liability under this
Agreement.
23. Miscellaneous.
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(a) Indemnities. Seller shall indemnify Buyer against and hold
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Buyer harmless from, all losses, damages, costs and expenses (including,
without limitation, reasonable legal fees and disbursements) that are not
attributable to the Buyer or specifically assumed by Buyer hereunder and which
are incurred as a result of the liabilities which arise or result from acts,
occurrences or matters that took place prior to the Closing. Buyer shall
indemnify Seller against and hold Seller harmless from, all losses, damages,
costs and expenses (including, without limitation, reasonable legal fees and
disbursements) that are not attributable to Seller and which are incurred as a
result of the liabilities which arise or result from acts, occurrences or
matters arising in connection with the Business and that take place after the
Closing.
(b) Partial Invalidity. If any term or provision of this Agreement
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or the application thereof to any person or circumstances shall, to any
extent, be invalid or unenforceable, the remainder of this Agreement, or the
application of such term or provision to persons or circumstances other than
those as to which
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it is held invalid or unenforceable, shall not be affected thereby, and each
such term and provision of this Agreement shall be valid and be enforced to
the greatest extent permitted by law.
(c) Waivers. No waiver of any breach of any covenant or provision
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herein contained shall be deemed a waiver of any preceding or succeeding
breach thereof, or of any other covenant or provision herein contained. No
extension of time for performance of any obligation or act shall be deemed an
extension of the time for performance of any other obligation or act.
(d) Successors and Assigns. This Agreement shall be binding upon
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and shall inure to the benefit of the successors and permitted assigns of the
parties hereto.
(e) Professional Fees. In the event of the bringing of any action
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or suit by a party hereto against another party hereunder by reason of any
breach of any of the covenants, agreements or provisions on the part of the
other party arising out of this Agreement, then in that event the prevailing
party shall be entitled to have and recover of and from the other party all
costs and expenses of the action or suit, including actual attorneys' fees at
trial and post-judgment including appeals, accounting and engineering fees and
any other professional fees resulting therefrom.
(f) Entire Agreement. This Agreement (including all Exhibits
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attached hereto) is the final expression of, and contains the entire agreement
between, the parties with respect to the subject matter hereof and supersedes
all prior understandings with respect thereto. This Agreement may not be
modified, changed, supplemented or terminated, nor may any obligations
hereunder be waived, except by written instrument signed by the party to be
charged or by its agent duly authorized in writing or as otherwise expressly
permitted herein. The parties do not intend to confer any benefit hereunder on
any person, firm or corporation other than the parties hereto.
(g) Time of Essence. Seller and Buyer acknowledge and agree that
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time is strictly of the essence with respect to each and every term,
condition, obligation and provision hereof and that failure to timely perform
any of the terms, conditions, obligations or provisions hereof by either party
shall constitute a material breach of and a non-curable (but waivable) default
under this Agreement by the party so failing to perform.
(h) Construction. Headings at the beginning of each paragraph and
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subparagraph are solely for the convenience of the parties and are not a part
of the Agreement. Whenever required by the context of this Agreement, the
singular shall include the plural and the masculine shall include the feminine
and vice versa. This Agreement shall not be construed as if it has been
prepared by
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one of the parties, but rather as if both parties had prepared the same.
Unless otherwise indicated, all references to paragraphs and subparagraphs are
to this Agreement. In the event the date on which Buyer or Seller is required
to take any action under the terms of this Agreement is not a business day,
the action shall be taken on the next succeeding business day.
(i) Survival. Unless otherwise expressly provided herein, all
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representations, warranties and covenants (to the extent such covenants are
not fully performed or rendered moot by the Closing) shall survive the
Closing.
(j) Exhibits. The Exhibits to this Agreement are an integral part
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of this Agreement and are incorporated herein by reference. If any of the
Exhibits hereto are not attached at the time of execution hereof, the
preparation and attachment of such Exhibits in form mutually satisfactory to
the parties shall be an additional condition to the Closing. The parties agree
to negotiate the terms and definitive language of such Exhibits in good faith,
and to use their respective best efforts in connection therewith.
(l) Counterparts. This Agreement may be executed in an original
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and any number of counterparts, each of which shall be deemed to be an
original of one and the same instrument.
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(m) Governing Law. This Agreement shall be construed according to
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and governed by the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year hereinbefore written.
DPD MANUFACTURING, INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, President
FALCON PRODUCTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx,
Executive Vice President
and Chief Financial Officer
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