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EXHIBIT 10.10
ASSSET TRANSFER AGREEMENT
BETWEEN
FLOUR CITY ARCHITECTURAL METALS, INC.
AND
XXXXXXX DYNAMICS, L.L.C.
DATED AS OF JANUARY 1, 1996
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ASSET TRANSFER AGREEMENT
BETWEEN
FLOUR CITY ARCHITECTURAL METALS, INC.
AND
XXXXXXX DYNAMICS, L.L.C.
DOCUMENT TAB NUMBER
Asset Transfer Agreement ............................................ 1
Exhibit A -- Warranty Deed .................................. 2
Exhibit B -- Xxxx of Sale, Assignment and Assumption
Agreement ...................................... 3
Schedule 1.1. Real Property ......................................... 4
Schedule 1.2 Equipment .............................................. 5
Schedule 1.2(a) Excluded Equipment .................................. 6
Schedule 1.4 Contracts and Leases ................................... 7
Schedule 1.6 Government Licenses .................................... 8
Schedule 1.7 Accounts Receivable .................................... 9
Schedule 1.8 Other Assets ........................................... 10
Schedule 2.1(b) Other Liabilities ................................... 11
Schedule 2.1(c) Accounts Payable .................................... 12
Schedule 3 Consideration ............................................ 13
Schedule 4.1.5 Environmental and Industrial Hygiene Compliance ...... 14
Schedule 5.3 Personnel .............................................. 15
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ASSET TRANSFER AGREEMENT
ASSET TRANSFER AGREEMENT (together with the exhibits and schedules
hereto, this "Agreement"), dated as of January 1, 1996, between Flour City
Architectural Metals, Inc., a corporation organized and existing under the laws
of the State of Delaware ("FCAM"), and Xxxxxxx Dynamics, L.L.C., a limited
liability company organized under the laws of the State of Delaware ("DDLLC").
WITNESSETH:
WHEREAS, FCAM wishes to transfer and assign to DDLLC, and DDLLC wishes
to accept and assume, certain real property, equipment, furniture, fixtures,
vehicles, inventories, records and other personal property; accounts
receivable; contractual rights and obligations, all of which are located in
Johnson City, Tennessee or relate to the operations of FCAM in Johnson City,
Tennessee.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, and upon the terms and conditions hereinafter
set forth, the parties, intending to be legally bound, agree as follows:
ARTICLE I
The Assets
Subject to the terms and conditions, and on the basis of the representations,
warranties and covenants and for the consideration, set forth herein, FCAM
agrees to transfer and assign or cause to transfer and assign and DDLLC agrees
to accept and assume, all of FCAM's right, title and interest as of December
31, 1995 (the "Effective Date") in, to and under all of the following (all of
which are hereinafter collectively the "Assets"):
1.1 Real Property. All of the owned real property, including owned
improvements thereon, described in Schedule 1.1 attached hereto and made a part
hereof (hereinafter the "Real Property"). The Real Property shall be conveyed
by Warranty Deed in the form of Exhibit A.
1.2 Equipment. All equipment, furniture and fixtures, tools, vehicles,
leasehold improvements, and other items of tangible personal property owned by
FCAM physically located on the Real Property, and used exclusively in operating
the FCAM business at Johnson City, Tennessee (hereinafter the "Xxxxxxx City
Business"), whether or not reflected on the books which are described in
Schedule 1.2 attached hereto and made a part hereof (hereinafter the
"Equipment"), but not including those items set forth on Schedule 1.2(a)
(hereinafter the "Excluded Equipment").
1.3 Inventories. All maintenance, janitorial, and office supplies owned by
FCAM physically located on the Real Property and used exclusively in the
Xxxxxxx City Business, whether or not accounted for by FCAM as inventory; and
all inventories of raw materials and finished and semi-finished products and
work-in-process owned by FCAM in connection with the manufacture of products
for DDLLC, located on the Real Estate (hereinafter collectively the
"Inventories"; and the Inventories together with the Equipment and the Records
(as hereinafter defined) are hereinafter collectively the "Personal Property").
Except to the extent expressly set forth in Section 4.1.2. ALL SUCH PERSONAL
PROPERTY SHALL BE CONVEYED "AS IS" AND "WHERE IS" IN ITS CONDITION ON THE
CLOSING DATE, AND NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXTEND
TO THE PERSONAL PROPERTY.
1.4 Contracts and Leases. All rights, to the extent such rights accrue
after the Closing date, in and to: (i) all contracts, agreements and purchase
orders for the sale or purchase of goods or
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services, or both, entered into by FCAM exclusively in connection with the
operation of the Xxxxxxx City Business; ((ii) all leases for the use of
personal property entered into by FCAM exclusively in connection with the
operation of the Xxxxxxx City Business, and rights attributable to portions of
leases for the use of personal property, including master leases pertaining to
vehicles and other personal property, to the extent such portions relate
exclusively to the operation of the Xxxxxxx City Business, (iii) all other
contracts and agreements entered into by FCAM of whatever nature which pertain
exclusively to the operation of the Xxxxxxx City Business, (all of items (i)
through (iii) are hereinafter collectively the "Contracts"). The Contracts are
listed on Schedule 1.4 attached hereto and made a part hereof.
1.5 Records. All sales and business records, product specifications, drawings,
correspondence, engineering, maintenance, operating and production records,
personnel records, credit records of customers, except for those portions of
such credit records received from third parties pursuant to binding confidential
obligations, and marketing or other studies relating exclusively to the Xxxxxxx
City Business, the Assets or the Liabilities, other than accounting and tax
records, which are owned by FCAM and maintained on the Real Property (the
"Records").
1.6 Government Licenses. To the extent transfer is permitted under applicable
law or regulation without liability to Armco for compliance therewith after the
Closing, all government licenses and permits held by FCAM and which pertain
exclusively to the operation of the Xxxxxxx City Business, a partial list of
which is attached as Schedule 1.6 (hereinafter the "Government Licenses").
1.7 Accounts Receivable. All rights in and to all accounts receivable owned
by FCAM and listed on Schedule 1.7, to the extent such accounts receivable are
not satisfied on or prior to the Effective Date ("Accounts Receivable").
1.8 Other Assets. The prepaid expenses, miscellaneous deposits, travel
advances and miscellaneous other assets listed on Schedule 1.8, to the extent
listed thereon.
1.9 The Equipment, Inventories and Records shall be conveyed, the Contracts,
Leases, Accounts Receivable and Other Assets shall be assigned, and the
Assumption of Liabilities shall be effected pursuant to a Xxxx of Sale,
Assignment and Assumption Agreement in the form of Exhibit B.
ARTICLE II
Assumption of Liabilities
2.1 Liabilities Assumed. In addition to its undertakings pursuant to Section
5.2 hereof, DDLLC hereby agrees effective as of the Effective Date to assume,
pay, perform and discharge all obligations and responsibilities (whether
arising under written contract or otherwise): (a) relating to the Assets to the
extent the same accrue after the Effective Date, including, but not limited to
all obligations under the Contracts and the Government Licenses, (b) the
liabilities relating to the Assets, including, but not limited to all
obligations under the Contracts and the Government Licenses, and the DDLLC
Employees, which are listed on Schedule 2.1(b), and; (c) the accounts payable
of FCAM listed on Schedule 2.1(c), to the extent listed thereon, (collectively
the liabilities described in Sections 2.1(a), 2.1(b) and 2.1(c) shall be the
"Assumed Liabilities").
2.2 Liabilities Not Assumed. Except for the liabilities and obligations
expressly referred to above or assumed by DDLLC elsewhere in this Agreement or
in any instrument of conveyance or assumption, DDLLC will not assume or
otherwise be responsible for any liabilities or obligations of FCAM, whether or
not arising out of the Assets or the operation of the Xxxxxxx City Business,
including but not limited to the following:
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2.2.1 Litigation and Claims. All litigations and claims arising out of the
operation of the Assets or the Xxxxxxx City Business on or prior to the Closing
Date, including but not limited to product liabilities and warranty claims
with respect to products manufactured, sold and delivered and services
performed by FCAM on or prior to the Closing Date.
2.2.2 Tax Liabilities. Tax liabilities of any and all kinds of FCAM or
relating to the Assets or the Xxxxxxx City Business arising prior to the
Closing Date.
2.2.3 Debt. Any indebtedness of FCAM arising prior to the Closing Date from
the operations comprising the Xxxxxxx City Business.
ARTICLE III
Consideration
In consideration for the transfer of the Assets to DDLLC by FCAM, DDLLC will
assume the liabilities and pay to FCAM the sum of $19,382,459.51. The
consideration will be allocated to the assets in accordance with Schedule 3.
ARTICLE IV
Representations and Warranties
4.1 Representations and Warranties of FCAM. FCAM hereby represents and
warrants to DDLLC the following:
4.1.1 Title to Real Property. FCAM has good and marketable fee title to such
Real Property free and clear of all mortgages, deeds of trust, security
interests, pledges or other charges or encumbrances to secure the payment of
money, subject only to the following: (a) any conditions that an accurate
survey may show; (b) easements, rights of way and other encumbrances of record;
(c) easements, rights of way and other encumbrances for public utilities or
granted to provide services to the facilities located on such Real Property to
adjacent property; (d) zoning or other governmentally established restrictions
or encumbrances; (e) liens for current taxes, assessments, governmental charges
or levies not yet due; (f) workers' or unemployment compensation liens arising
in the ordinary course of business; (g) mechanic's, materialman's, supplier's,
vendor's, garnishment or similar liens arising in the ordinary course of
business.
4.1.2 Title to Personal Property. Except as otherwise provided herein, FCAM
has good and marketable title to the Personal Property, free and clear of all
liens or encumbrances whatsoever, except for mechanic's, materialman's,
supplier's, vendor's, garnishment or similar liens arising in the ordinary
course of business.
4.1.3 Conflicts and Consents. The execution and delivery by FCAM of this
Agreement and the other agreements and documents contemplated herein and its
consummation of the transactions contemplated herein and therein will not
violate any domestic or foreign law or rule or regulation thereunder or
conflict with or result in any breach or violation of the Certificate of
Incorporation or By-laws of FCAM or constitute a default (or an event which
with notice or lapse of time or both would become a default) under, or result
in the creation of a lien, charge or encumbrance on any of the Assets pursuant
to, or constitute an event or condition that would permit termination or
acceleration of the maturity of or any indenture, mortgage, lease, agreement or
other instrument or obligation to which FCAM is a party or by which it, or any
of the Assets, may be bound or affected.
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4.1.4 Taxes
There are no pending questions to the knowledge of FCAM relating to, nor claims
asserted for, ad valorem taxes or assessments upon the Assets.
4.1.5 Environmental and Industrial Hygiene Compliance. FCAM has not received
notice, written or oral, from any governmental agency having jurisdiction,
alleging the Real Property is in violation of any federal, state or local law,
ordinance or regulation relating to the environmental conditions on, under or
about the real Property. Except as set forth in Schedule 4.1.5, to the knowledge
or Armco, FCAM has not disposed of any Hazardous Substances on, under or about
the Real Property, nor does FCAM have any knowledge of any such activity by any
other person. For the purposes of this Section 4.1.5, the term "Hazardous
Substances" shall be as defined in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sec. 9601, et
seq., and in the regulations adopted and publications promulgated pursuant to
said laws.
4.1.6 Compliance with Laws and Other Documents. FCAM has not received notice,
written or oral, from any governmental agency having jurisdiction, alleging
that FCAM is in violation or default with respect to any applicable law,
ordinance, order or regulations relating to the Xxxxxxx City Business or the
Assets, or in violation or default in any respect under any indenture,
agreement or other instrument under which FCAM is a party or may be bound,
default under or violation of which laws or regulations, indenture, agreement
or other instrument would materially adversely affect the Xxxxxxx City
Business.
ARTICLE V
Covenants
5.1 Covenants of FCAM. FCAM covenants and agrees with DDLLC as follows:
5.1.1 Further Assurances. FCAM will from time to time at the request of
DDLLC, and without further consideration, execute and deliver such further
instruments of transfer, conveyance and assignment, in addition to those
contemplated herein, and take such other action as DDLLC may reasonably request
in order to further vest in DDLLC title to the Assets as contemplated herein
and to assist DDLLC in the collection or reduction to possession of the Assets.
5.1.2 Forwarding of Payments. FCAM agrees that any payment of monies to which
DDLLC is entitled hereunder but which is made instead to FCAM for whatever
reason, will be promptly and in good faith forwarded to DDLLC, in the manner
directed by DDLLC.
5.1.3 Obtainment Consents. FCAM agrees that it will cooperate with DDLLC to
obtain the consent or agreement of any person to the assignment of any of the
Contracts, Trade Accounts Receivable or the Permits, provided, however, that
FCAM shall not be obligated to make any payments or otherwise provide any
consideration to or on behalf of such third party in consideration of such
consent or agreement; and provided further that FCAM shall have no liability to
DDLLC in the event of any such consent or agreement is not obtained.
5.1.4 Access to Records. FCAM agrees that it shall maintain all such records
and other documents in its possession which relate to the Xxxxxxx City Business,
the Assets or to the Liabilities, without charge to DDLLC, and shall keep such
records and documents in accordance with its record retention system and in no
event destroy any such records and documents less than five (5) years old. At
all reasonable times, DDLLC, its accountants, appraisers, attorneys and agents
shall be entitled to examine and copy such records and documents.
5.2 Covenants of DDLLC. DDLLC covenants and agrees with FCAM as follows:
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5.2.1 Access to Records. DDCCL agrees that at all reasonable times after the
Closing Date FCAM, its accountants, appraisers, attorneys or agents shall have
a right to reasonably examine, audit and duplicate, at FCAM's expense, all the
Records and other records and documents which relate to the operation of the
Xxxxxxx City Business prior to the Closing Date or the performance by FCAM or
DDLLC of their respective obligations hereunder or under any exhibit or
schedule hereto. DDLLC shall give FCAM three month's prior notice of the
intentional destruction by DDLLC of any Records or such other records and
documents. FCAM may, within a period of thirty (30) calendar days from receipt
of such notice, notify DDLLC of FCAM desire to retain one or more of the items
to be disposed of, whereupon DDLLC shall deliver to FCAM, at DDLLC's expense,
such items. Any items that FCAM does not request delivered to it may be
destroyed.
5.2.2 Future Advertising and Sales Activity. DDLLC shall after the Closing
Date identify itself as the owner of the Xxxxxxx Business and the Assets, and as
soon as reasonably possible after the Closing Date shall place its name in a
prominent position on all the Real Property, all business records and other
sales or advertising-related material (including materials used for the
packaging of any product) received by it hereunder. DDLLC shall use all
reasonable efforts to remove from the Real Property.
5.2.3 Forwarding of Payments. DDLLC agrees that any payment of monies to
which FCAM is entitled hereunder, but which is made instead to DDLLC for
whatever reason, will be promptly and in good faith forwarded to FCAM.
5.3 Personnel and Benefits.
5.3.1 Employment Status. All hourly and salaried employees of FCAM who are
employed exclusively in the operation of the Xxxxxxx City Business, who are so
employed immediately prior to the Closing, and who are identified on Schedule
5.3 hereto shall become employees of DDLLC (hereinafter "DDLLC Employees").
5.4 Indemnification.
5.4.1 FCAM hereby agrees to indemnify and hold harmless DDLLC against, for and
in respect of any and all damages, losses, obligations, liabilities, claims,
encumbrances, deficiencies, costs, charges and expenses (including, without
limitation, reasonable attorneys' fees and other costs and expenses incident to
any suit, action, investigation, claim or proceeding, all hereinafter referred
to collectively as "Losses") suffered, sustained, incurred, or required to be
paid by DDLLC, solely by reason of (i) any material breach or failure of
observance or performance by FCAM of any representation, warranty, covenant,
agreement or commitment made by FCAM in this Agreement or any Exhibit or
Schedule hereto; (ii) any liabilities or obligations of FCAM are not expressly
assumed by DDLLC pursuant to Sections 2.1 and 2.2 of this Agreement.
5.4.2 DDLLC hereby agrees to indemnify and hold harmless Armco, FCAM against,
for and in respect of any and all Losses suffered, sustained, incurred, or
required to be paid by FCAM solely by reason of (i) any material breach or
failure of observance or performance by DDLLC of any representation, warranty,
covenant, agreement or commitment made by DDLLC in this Agreement, any Exhibit
or Schedule hereto; (ii) any material breach or failure of observance or
performance by DDLLC of its undertaking under Section 2.1 hereof; (iii) DDLLC's
management, control, ownership and operation of the Assets and the Xxxxxxx
City Business after the Closing Date.
ARTICLE VI
Miscellaneous
6.1 Headings. The headings in this Agreement are for convenience only and
form no part of this Agreement.
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6.2 Amendment. This Agreement may not be amended except in a written
instrument signed by both parties and expressly stating it is an amendment to
this Agreement.
6.3 Choice of Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, except for the conflict of
law provisions thereof.
6.4 Third Parties. Nothing herein expressed or implied is intended or shall
be construed to confer upon or give to any person, firm or entity, other than
the parties hereto and their respective successors and permitted assigns, any
rights or remedies under or by reason of this Agreement.
6.5 Remedies Cumulative. Except as otherwise stated in this Agreement, the
rights and remedies provided in this Agreement are cumulative and not in the
alternative, and are in addition to, and, except as otherwise provided herein,
without prejudice to any other rights and remedies hereunder or otherwise at
law or in equity which might be available to a party.
6.6 Entire Agreement. This Agreement, including the Exhibits and Schedules
attached hereto, together with all the certificates, documents and agreements
to be delivered pursuant hereto, constitutes the entire agreement between the
parties pertaining to the subject matter hereof, and all prior agreements,
representations, discussions and negotiations between the parties pertaining to
the subject matter hereof, are superseded hereby.
6.7 Parties in Interest. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors,
legal representatives, and assigns. This Agreement shall not be assigned by
either party without the prior written consent of the other party. Each party
represents that it is entering into this transaction as principal for its own
account and not as an agent for any other party.
FLOUR CITY ARCHITECTURAL METALS, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Title: President
------------------------------
XXXXXXX DYNAMICS, L.L.C.
By: [SIG]
-------------------------------
Title: President
------------------------------
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EXHIBIT B
XXXX OF SALE, ASSIGNMENT AND
ASSUMPTION AGREEMENT
This Xxxx of Sale, Assignment and Assumption Agreement (this
"Agreement") is made and entered into as of the 1st day of January, 1996
("Effective Date") by and between Flour City Architectural Metals, Inc., a
Delaware corporation ("Assignor") and Xxxxxxx Dynamics, L.L.C., a Delaware
limited liability company ("Assignee") the terms "Assignor" and "Assignee" to
include their respective legal representatives, successors, and assigns where
the context requires or permits);
W I T N E S S E T H T H A T:
WHEREAS, Assignor has as of the Effective Date conveyed, by warranty
deed unto Assignee certain improved real property lying and being located in
Washington County, Tennessee, as more particularly described in Schedule 1.1 of
the Asset Agreement (as hereinafter defined), together with certain improvements
thereon and all appurtenances belonging thereto (the "Real Property"), pursuant
to that certain Asset Transfer Agreement dated as of December 31, 1995 between
Assignor, as seller and Assignee, as purchaser ("Asset Agreement"); and
WHEREAS, Assignor and Assignee pursuant to the terms of the Asset
Agreement intend that certain of Assignor's assets associated with the Real
Property and the operation of the Assignor's business at the Real Property be
assigned and transferred to Assignee.
NOW, THEREFORE, FOR AND IN CONSIDERATION of the sum set forth in the
Asset Agreement, the conveyance by Assignor to Assignee of the Real Property,
and the mutual covenants herein contained, the receipt and sufficiency of the
foregoing consideration being hereby acknowledged by the parties hereto,
Assignor and Assignee hereby agree as follows:
1. Personal Property, Assignor hereby transfers, grants, conveys
and assigns to Assignee all of the right, title and interest of Assignor, in
and to the personal property used in the operation or occupancy of the Real
Property including the Equipment, Inventories and Records as described in
Sections 1.2, 1.3 and 1.5 of the Asset Agreement ("Personal Property").
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2. Contracts and Leases. Assignor hereby transfers, grants,
conveys and assigns to Assignee all of Assignor's right, title, benefit, and
interest, if any, to, and under Contracts and Lease, as described in Section
1.4 of the Asset Agreement ("Contracts"). Assignor hereby indemnifies and
agrees to hold Assignee harmless from and against all claims, damages,
defaults, or other liabilities or costs (including, without limitation, court
costs and attorney's fees) which rise out of, in connection with, or under the
Contracts prior to the Effective Date. Assignee hereby indemnifies and agrees
to hold Assignor harmless from and against any claims, damages, defaults or
other liabilities or costs (including, without limitation, court costs and
attorneys' fees) which arise out of, in connection with, or under the Contracts
from and after the Effective Date.
3. Government Licenses. Subject to Paragraph 5 hereof, Assignor
hereby transfers, grants, conveys and assigns to Assignee all of the right,
title, interest, and benefit of Assignor, if any, in, to, and under any and all
sewer and water permits and licenses, building permits, certificates of
occupancy, demolition and excavation permits, and right-of-way permits, utility
permits, drainage rights and environmental permits related to the Real Property.
4. Accounts Receivable and Other Assets. Assignor hereby
transfers, grants, conveys and assigns to Assignee all of the right, title and
interest of Assignor, in and to the Accounts Receivable as described in
Schedule 1.7 of the Asset Agreement and to the Other Assets as described in
Schedule 1.8 of the Asset Agreement.
5. Purchase Agreement. The transfers assignments and assumptions
set forth are subject to the terms and provisions of the Asset Agreement and to
the extent of any conflict between the terms and provisions of this Agreement
and the Asset Agreement, the terms and provisions of the Asset Agreement shall
control.
6. Assignee hereby accepts such assignment and agrees with
Assignor to assume, and hereby does assume and agree to pay, perform and
discharge directly to the respective parties to the Contracts and with their
successors in interest, and with the government agencies or bodies which issued
or are responsible for administering the Government Licenses, all liabilities
and obligations of Assignor described in Section 2.1 of the Asset Agreement
(the "Assumed Liabilities"). The assumption of Assumed Liabilities by the
Assignee hereunder is not intended to and does not confer any rights on any
party other than Assignor, and without limiting the foregoing, this Agreement
does not create or expand any rights of any third party. Such assumption shall
not subject the Assignee to any greater liability, with respect to any of the
Assumed Liabilities, than would have been enforceable against Assignor. Except
for the Assumed Liabilities, and for certain
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other undertakings in the Asset Agreement, the Assignee is not assuming any
other debt, liability, contract, commitment, engagement, license or other
obligation of Assignor, whether fixed or contingent.
7. Assignor and Assignee agree that this Agreement shall be void
and of no force or effect with respect to any particular Contract or
Governmental License unless and until any required consent of any third party
shall have been obtained.
8. Assignor and Assignee agree that if the consent of any third
party necessary for Assignor to assign any of the Contracts to the Assignee is
not obtained, then, to the extent permitted without such consent, the Assignee
will fully perform and discharge all of Assignor's obligations under such
Contracts as subcontractor of Assignor. As compensation for performing such
obligations, Assignor shall pay to Assignee in a commercially reasonable manner
to effectuate the subcontracting provisions hereof.
9. This Agreement shall be construed and enforced in accordance
with the laws of the State of Delaware except for the conflict of law
provisions thereof. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute but one and the same instrument.
10. Successors and Assigns. The Agreement shall inure to the
benefit of, and be binding upon, the respective legal representatives,
successors, and assigns of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have duly executed these presents
as of this 31st day of December, 1995.
ASSIGNOR:
Flour City Architectural Metals, Inc.
By: XXXXXXX X. XXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
ASSIGNEE:
Xxxxxxx Dynamics, L.L.C.
By: /s/
-----------------------------------
Name:
Title:
