Exhibit 10(iii)
FORECLOSURE AGREEMENT
This Foreclosure Agreement (the "Agreement"), dated as of the 1st day
of February, 2001, is entered into by and among Independent Steel Products, LLC,
a New York limited liability company ("Buyer"), LaSalle Bank National
Association, a national banking association ("Bank"), Atlantic Hardware & Supply
Corporation, a New York corporation ("Atlantic Hardware"), Universal Supply
Group, Inc., a New York Corporation, formerly known as Colonial Commercial Sub
Corp. ("Universal Supply"), and Well-Bilt Steel Products, Inc., a New Jersey
corporation ("Well-Bilt Steel" or "Borrower").
RECITALS
I. Pursuant to that certain Loan and Security Agreement dated as of
June 24, 1999 by and between Bank and Atlantic Hardware, as amended by that
certain First Amendment dated as of September 21, 1999 (the "First Atlantic
Hardware Amendment"), as further amended by that certain Second Amendment dated
as of September 29, 1999 (the "Second Atlantic Hardware Amendment"), as further
amended by that certain Third Amendment dated as of November 1, 1999 (the "Third
Atlantic Hardware Amendment"), as further amended by that certain Fourth
Amendment dated as of December 2, 1999 (the "Fourth Atlantic Hardware
Amendment"), as further amended by that certain Fifth Amendment dated as of June
1, 2000 (the "Fifth Atlantic Hardware Amendment") and as further amended by that
certain Sixth Amendment dated as of July 14, 2000 (the "Sixth Atlantic Hardware
Amendment") (the Loan and Security Agreement as so amended and as otherwise
previously amended, restated, supplemented or otherwise modified from time to
time, the "Atlantic Hardware Security Agreement"), and pursuant to certain other
documents, instruments and agreements executed pursuant thereto or in connection
therewith (collectively, the "Atlantic Hardware Related Agreements" and together
with the Atlantic Hardware Agreement, the "Atlantic Hardware Documents"), Bank
has made loans to, and made other financial accommodations to or for the benefit
of, Atlantic Hardware (all such loans and other financial accommodations being
herein referred to collectively as the "Atlantic Hardware Loans"). The Atlantic
Hardware Loans and all other obligations of Atlantic Hardware to Bank, howsoever
created, arising or evidenced (collectively, the "Atlantic Hardware
Obligations"), are secured by substantially all of Atlantic Hardware's assets,
consisting of both real and personal property. Further, payment of the Atlantic
Hardware Obligations is guaranteed by the third party guaranty dated June 24,
1999 of Universal Supply, by the third party guaranty dated June 24, 1999 of
Colonial Commercial Corp., a New York corporation ("Colonial"), and by the third
party guaranty dated June 1, 2000 of Well-Bilt Steel (Universal Supply, Colonial
and Well-Bilt Steel, in such capacity, sometimes hereinafter are referred to
individually as an "Atlantic Hardware Guarantor" and collectively as "Atlantic
Hardware Guarantors").
II. Pursuant to that certain Loan and Security Agreement dated as of
June 24, 1999 by and between Bank and Universal Supply, as amended by that
certain First Amendment dated as of September 20, 1999 (the "First Universal
Supply Amendment"), as further amended by that certain Second Amendment dated as
of September 23, 1999 (the "Second Universal Supply Amendment"), as further
amended by that certain Third Amendment dated as of October 7, 1999 (the "Third
Universal Supply Amendment"), as further amended by that certain Fourth
Amendment dated as of December 2, 1999 (the "Fourth Universal Supply
Amendment"), as further amended by that certain Fifth Amendment dated as of June
1, 2000 (the "Fifth Universal Supply Amendment") and as further amended by that
certain Sixth Amendment dated as of July 14, 2000 (the "Sixth Universal Supply
Amendment") (the Loan and Security Agreement as so amended and as otherwise
previously amended, restated, supplemented or otherwise modified from time to
time, the " Universal Supply Security Agreement"), and pursuant to certain other
documents, instruments and agreements executed pursuant thereto or in connection
therewith (collectively, the "Universal Supply Related Agreements" and together
with the Universal Supply Agreement, the "Universal Supply Documents"), Bank has
made loans to, and made other financial accommodations to or for the benefit of,
Universal Supply (all such loans and other financial accommodations being herein
referred to collectively as the "Universal Supply Loans"). The Universal Supply
Loans and all other obligations of Universal Supply to Bank, howsoever created,
arising or evidenced (collectively, the "Universal Supply Obligations"), are
secured by substantially all of Universal Supply's assets, consisting of both
real and personal property. Further, payment of the Universal Supply Obligations
is guaranteed by the third party guaranty dated June 24, 1999 of Atlantic
Hardware, by the third party guaranty dated June 24, 1999 of Colonial and by the
third party guaranty dated June 1, 2000 of Well-Bilt Steel (Atlantic Hardware,
Colonial and Well-Bilt Steel, in such capacity, sometimes hereinafter are
referred to individually as a "Universal Supply Guarantor" and collectively as
"Universal Supply Guarantors").
III. Pursuant to that certain Loan and Security Agreement dated as of
June 1, 2000 by and between Bank and Well-Bilt Steel, as amended by that certain
First Amendment dated as of July 14, 2000 (the "First Well-Bilt Steel
Amendment") (the Loan and Security Agreement as so amended and as otherwise
previously amended, restated, supplemented or otherwise modified from time to
time, the "Well-Bilt Steel Security Agreement"), and pursuant to certain other
documents, instruments and agreements executed pursuant thereto or in connection
therewith (collectively, the "Well-Bilt Steel Related Agreements" and together
with the Well-Bilt Steel Agreement, the "Well-Bilt Steel Documents"), Bank has
made loans to, and made other financial accommodations to or for the benefit of,
Well-Bilt Steel (all such loans and other financial accommodations being herein
referred to collectively as the "Well-Bilt Steel Loans"). The Well-Bilt Steel
Loans and all other obligations of Well-Bilt Steel to Bank, howsoever created,
arising or evidenced (collectively, the "Well-Bilt Steel Obligations"), are
secured by substantially all of Well-Bilt Steel's assets.
IV. Bank and Borrower acknowledge that, as a result of a continuing
default by Borrower in repayment and performance of the Well-Bilt Steel
Obligations and other liabilities under the Well-Bilt Steel Documents, Bank has
the right under Section 9-504 of the Illinois Uniform Commercial Code (the
"UCC") to sell and transfer to any person or entity for value in a private sale
all of Borrower's right, title and interest in and to any or all of the assets
subject to Bank's security interest (such assets are collectively referred to
herein as the "Encumbered Assets").
V. Borrower is willing to surrender possession to Bank solely for the
purpose of effecting such a private sale, and Buyer desires to purchase, certain
personal property assets of Borrower, which personal property includes certain
tangible assets and intangible assets, the tangible assets of which are located
in one or more states, including New York, on the terms and subject to the
conditions set forth herein.
VI. Bank desires to grant, sell, transfer and deliver to Buyer, and
Buyer desires to acquire from Bank for value in a sale pursuant to the UCC and
on the terms and conditions hereinafter set forth, all of Borrower's and Bank's
right, title and interest in the Subject Assets (as hereinafter defined).
AGREEMENTS
NOW THEREFORE, in consideration of the mutual promises and agreements
set forth herein, Buyer, Bank, and Borrower agree as follows:
1. Incorporation of Recitals. The Recitals set forth above are true and
correct, and are incorporated into and form an integral part of the agreement
between the parties contained in this Agreement; provided, however, that Buyer
makes no representations with respect to the Recitals contained in I through IV
above.
2. Purchase and Sale. Subject to the terms and conditions set forth in
this Agreement, in consideration of the Purchase Price (as hereinafter defined),
at the Closing referred to in Section 5 hereof, pursuant to Section 9-504 of the
UCC and other applicable law, Bank shall sell, assign, transfer and deliver to
Buyer, and Buyer shall purchase, acquire and take assignment and delivery of,
all of Borrower's rights, title and interest in and to all of the assets more
particularly described on Schedule 2 attached hereto (all of which assets are
hereinafter referred to collectively as the "Subject Assets"), whereupon,
pursuant to applicable law, Bank's lien and security interest, and all liens and
security interests junior and/or subordinated thereto, will be discharged.
2.1 Excluded Assets. Notwithstanding the foregoing, Bank is
not selling and Buyer is not purchasing any of those assets more particularly
described on Schedule 2.1 hereof (such assets being referred to hereinafter as
the "Excluded Assets"). Buyer may elect to exclude any of the other Subject
Assets from the sale, but such an exclusion shall not result in any reduction of
the Purchase Price (as hereinafter defined).
2.2 Compliance with Section 9-504. It is the express intent of
the parties hereto that the sale of the Subject Assets contemplated hereby be
consummated pursuant to Section 9-504 of the UCC. Accordingly, Bank has
conducted searches of the records in the locations listed in Part I of Schedule
2.2, which searches have revealed the entities listed on Part II of Schedule
2.2. To the extent not waived in writing to the sole satisfaction of Bank, Bank
has sent or will send notices of the foreclosure sale contemplated hereby in
advance of such sale to the parties listed in Part III of Schedule 2.2 and to
any other party from whom Bank has received (before sending its notices to
Borrower) written notice of a claim of an interest in the Subject Assets whose
interest might be adversely affected hereby. Copies of such notices may later be
appended to Schedule 2.2 and made a part thereof.
2.3 Assumption of Obligations or Liabilities. Buyer shall
assume no liabilities or accrued liabilities of Borrower except that Buyer shall
assume those liabilities specifically set forth on Schedule 2.3 hereto (the
"Assumed Liabilities"). Bank shall not assume, nor shall Bank be deemed to have
assumed, any liability or obligation of Borrower whatsoever.
2.4 Sale As Is; Where Is. Bank specifically disclaims (and the
parties hereto expressly agree that Bank makes and gives no covenant,
undertaking, representation or warranty, express or implied, in connection with
this Agreement, the Subject Assets or any other matter relating hereto or
thereto) as to the following matters:
(a) Non-infringement of any of the trademarks or tradenames
owned by Borrower;
(b) The existence on the Closing Date of any specific items
constituting the Subject Assets or the quantity or quality thereof; or
(c) The condition, quality, suitability, value,
merchantability or fitness for a particular purpose of any of the
Subject Assets or of Borrower or any aspect of Borrower's financial
condition, businesses, prospects, or operations.
BUYER ACKNOWLEDGES AND AGREES THAT EXCEPT AS, AND ONLY TO THE EXTENT
SET FORTH HEREIN: (A) THE SALE OF SUBJECT ASSETS HEREUNDER IS: WITHOUT RECOURSE
TO BANK; ON AN "AS IS, WHERE IS" BASIS; WITHOUT ANY REPRESENTATIONS OR
WARRANTIES AS TO ITEMS, CONDITION, QUANTITY OR ANY OTHER MATTERS WHATSOEVER; (B)
BANK IS SELLING TO BUYER ALL ACCOUNTS RECEIVABLE WITHOUT RECOURSE TO BANK WITH
RESPECT TO THE CREDITWORTHINESS OF ANY OBLIGOR WITH RESPECT TO SUCH ACCOUNTS
RECEIVABLE; BANK MAKES NO REPRESENTATION AS TO THE VALUE, IF ANY, OF THE SUBJECT
ASSETS BEING TRANSFERRED HEREBY; AND BANK MAKES NO REPRESENTATION OR WARRANTY
CONCERNING THE POSSIBLE INFRINGEMENT OF ANY TRADEMARKS, TRADENAME OR PATENT
ARISING OUT OF THE USE BY BUYER OF ANY OF THE SUBJECT ASSETS; (C) BANK MAKES NO
REPRESENTATIONS OR WARRANTIES THAT ALL OR A PORTION OF THE SUBJECT ASSETS ARE
MERCHANTABLE (IN THE SENSE OF AN IMPLIED WARRANTY OF MERCHANTABILITY UNDER THE
UCC) OR FIT FOR A PARTICULAR PURPOSE; AND (D) THE SOLE REPRESENTATIONS AND
WARRANTIES OF BANK REGARDING THE SUBJECT ASSETS ARE THOSE SPECIFICALLY PROVIDED
IN SECTIONS 9 AND 10 OF THIS AGREEMENT.
3. Purchase Price; Payment of Consideration.
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3.1 Consideration. For purchase of the Subject Assets, Buyer
shall (i) issue to the Bank a Note and Security Agreement in the principal
amount of $300,000 and (ii) pay to Bank $700,000 in cash (collectively, the
"Purchase Price").
3.2 Timing and Method of Payment. The cash portion of the
Purchase Price shall be paid to Bank at the Closing (as hereinafter defined) by
cashier's check, certified check or wire transfer of immediately available
funds, at the option of Bank. The remainder of the Purchase Price shall be paid
to the Bank at the Closing by issuance of a note substantially in the form of
Exhibit A hereto.
3.3 Credit Against Purchase Price. At Closing, Buyer shall
receive a credit against the Purchase Price in an amount equal to the then
outstanding amount of those liabilities of Borrower that are assumed by Buyer
and that are reflected on Schedule 2.3 hereof.
4. Liabilities and Liens Remain Outstanding; Bank Assumes
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No Liabilities.
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4.1 Each of Bank, Borrower, Atlantic Hardware, Universal
Supply, Colonial and Well-Bilt, in its capacity as an Atlantic Hardware
Guarantor and a Universal Supply Guarantor (Atlantic Hardware, Universal Supply,
Colonial and Well-Bilt, in its capacity as an Atlantic Hardware Guarantor and a
Universal Supply Guarantor, sometimes hereinafter are referred to individually
as a "Borrower Party" and collectively as "Borrower Parties") specifically
acknowledge and agree that, except to the extent of cash actually and finally
applied by Bank to such liabilities, the Loans and other Obligations shall
remain outstanding, and Bank does not release any, but instead specifically
reserves all, security interests, liens and other encumbrances and rights
relating thereto, in all assets and collateral described in Bank Loan Documents
which are not included in the Subject Assets and the assets which are not sold
to Buyer hereunder, including, without limitation, all of the Excluded Assets.
4.2 Borrower and Buyer agree that, to date, Bank has assumed
no liability with respect to any of the Subject Assets or the Excluded Assets
and Bank, under no circumstances (including, without limitation, with respect or
pursuant to this Agreement), assumes or shall assume any liability with respect
to any of such assets.
4.3 Borrower, Buyer and Bank agree that Buyer is responsible
for the Assumed Liabilities reflected on Schedule 2.3 of this Agreement.
5. Closing.
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5.1 Closing Date. The "Closing Date" shall mean the date upon
which the Purchase Price is paid in cash by Buyer to Bank, Borrower's right,
title and interest in the Subject Assets is transferred by Bank to Buyer, all of
which shall occur on or before February 1, 2001, or such later date to which the
Closing may be extended upon the mutual written consent of Bank and Buyer, such
consent to be given or not given in the sole and absolute discretion of each
such party. In the event that the Closing Date does not occur on or prior to
February 1, 2001, the parties hereby agree that this Agreement shall be
terminated, unless Bank and Buyer mutually agree to continue the Closing Date to
a date after February 1, 2001.
5.2 Time and Place. The transfer and delivery of all documents
and instruments necessary to consummate the transactions contemplated by this
Agreement (the "Closing") shall be held at the offices of Xxxxxx Xxxxxx Xxxxx,
Chicago, Illinois, at 10:00 a.m. Chicago time on the Closing Date.
5.3 Transactions at Closing. At the Closing:
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(a) Bank shall execute and deliver to Buyer the General
Assignment and Xxxx of Sale in substantially the form of Exhibit B
hereto.
(b) Buyer shall deliver to Bank the Purchase Price.
(c) Bank's security interests and liens shall immediately
attach to and be perfected with respect to the proceeds of the sale of
Subject Assets.
(d) Upon Bank's receipt of the Purchase Price, Bank shall be
permitted to apply it to such of the Obligations as Bank determines in
its sole discretion.
6. Taxes. Any personal property taxes, sales taxes, and transfer taxes
arising as a result of the transactions and sales contemplated by this Agreement
shall be paid by Buyer.
7. Representations, Warranties, and Covenants of Borrower. The Borrower
and each Borrower Party represents, warrants and covenants to Buyer and Bank as
follows:
7.1 0-000 Xxxxxx. Notice to the Borrower and each Borrower
Party of the sale or disposition of the Subject Assets required under Section
9-504(3) of the UCC has, by the Borrower's and each Borrower Party's execution
of this Agreement, been waived.
7.2 Conduct of Borrower's Business. Borrower covenants that
from the date of this Agreement through the Closing Date, Borrower will not: (a)
pay any dividends, make any distribution of capital or repurchase any capital
stock; (b) make any advances, including salaries paid in advance, to officers,
directors, shareholders or employees; (c) pay any bonuses, whether accrued,
earned or unearned; (d) sell any asset, other than sales of inventory in the
ordinary course of business; (e) settle or compromise with respect to any claim
or other asset of Borrower which exceeds $10,000 in book value, including
accounts receivable, for less than book value; (f) terminate, amend, settle or
waive any material right of substantial value; or (g) sell, or commit for future
delivery, any goods at prices below those which Borrower has, in the ordinary
course of business, sold goods in the past. Borrower further covenants that it
shall operate its business in a manner consistent with preserving its good
standing with its customers and will keep all taxes current, including payroll
taxes.
7.3. Litigation. Except as previously disclosed by Borrower in
writing, to the best of Borrower's knowledge, no action, suit, proceeding or
investigation is pending or threatened against Borrower.
7.4. Existence of and Title to the Subject Assets. The
specific items constituting the Subject Assets will be in existence on the
Closing Date (except for any accounts receivable collected by Borrower since the
date of this Agreement). Borrower has good title to the Subject Assets, subject
to the security interests and liens listed on Part II of Schedule 2.2.
7.5 Taxes. Borrower has paid all sales taxes owing to any
governmental authority or agency.
7.6. No Bankruptcy. Borrower has not filed a petition in
voluntary bankruptcy or requested reorganization under any provision of any
bankruptcy, reorganization or insolvency law nor has Borrower consented to the
filing of any petition against it under any such law.
7.7. Authorization. Borrower is duly authorized to conduct
business in the State of New York.
8. Representations, Warranties, and Covenants of Buyer. Buyer
represents, warrants and covenants to Bank as follows:
8.1 Organization of Buyer. Buyer is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of New York. Buyer has all limited liability company power and
authority to purchase the Subject Assets pursuant to Section 9-504 of the UCC
and other applicable law, to execute and deliver this Agreement and the other
documents, instruments or agreements to be executed and delivered by it in
connection herewith, and to carry out all of the actions required of it pursuant
to the terms of this Agreement. None of Buyer's equity interests are owned or
controlled by the Borrower or any Borrower Party or any individual, person or
entity which either directly or indirectly owns or controls any equity interest
in the Borrower or any Borrower Party.
8.2 Corporate Approval; Binding Effect. Buyer has obtained all
necessary authorizations and approvals required for the execution and delivery
of this Agreement and the other documents, instruments or agreements to be
executed and delivered by it in connection herewith, and the consummation of the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by Buyer and constitutes, the legal, valid and binding obligation of
Buyer, enforceable against Buyer in accordance with its terms.
8.3 Litigation. Except as previously disclosed by Buyer in
writing, to the best of Buyer's knowledge, no action, suit, proceeding or
investigation is pending or threatened against Borrower or Buyer, relating to,
affecting, or questioning the validity of this Agreement or challenging any of
the transactions contemplated hereby.
8.4 Indemnification and Hold Harmless. In addition to the
assumption of liabilities pursuant to Section 2.3 and 8.6, Buyer hereby agrees
to indemnify, pay, defend and hold Bank, and its officers, directors, employees,
agents, affiliates and attorneys (collectively, the "Bank Indemnitees"), and
Borrower and Borrower Parties, and their officers, directors, employees, agents,
affiliates and attorneys (collectively, the "Borrower Indemnitees"), harmless
from and against any and all claims, liabilities, obligations, issues, damages,
penalties, actions, judgments, suits, actions, causes of actions, demands,
costs, expenses and disbursements of any kind or nature (collectively, a
"Claim") that may be imposed on, incurred by or asserted, at any time, against
Bank Indemnitees or Borrower Indemnitees as a result of any Claim that may now
exist or that may hereafter arise, in whole or in part, in connection with or as
a result of any action by Bank with respect to Borrower or to Subject Assets
from Buyer's failure to satisfy the Assumed Liabilities or the Assumed Leases
(as herein defined). To the extent that the undertaking to indemnify, pay and
hold harmless set forth in the preceding sentence may be unenforceable because
it is violative of any law or public policy, Buyer shall contribute the maximum
portion that it is permitted to pay and satisfy under applicable law to the
payment and satisfaction of any claim incurred by Bank Indemnitees, Borrower
Indemnitees or any of them.
8.5 Brokers. Buyer has not retained, utilized or been
represented by any broker or finder in connection with the transactions
contemplated by this Agreement.
8.6 Assumption of Liabilities. Buyer shall assume, satisfy,
and pay only the obligations and liabilities of Borrower reflected on Schedule
2.3 of this Agreement. Buyer shall also assume all unexpired leases relating to
the Real Property and all leases set forth on Schedule 8.6 (collectively, the
"Assumed Leases").
8.7 Lack of Bad Faith. Buyer has no reason to believe that
Bank is acting in bad faith in connection with this Agreement.
8.8 The Subject Assets and Bank's Security Interest in the
Subject Assets. Buyer is not aware of any fact or circumstance that would lend
Buyer to conclude that Bank fails to hold a perfected, first priority (to the
extent that priority can be determined from a search of the public records)
security interest in and lien upon the Subject Assets. To the best of Buyer's
knowledge, information and belief, the Subject Assets encompass all personal
property assets owned by Borrower.
9. Representations, Warranties, and Covenants of Bank. Bank represents,
warrants and covenants to Buyer that:
9.1 Release of Lien. Bank has not released any security
interest, lien or mortgage it may have in, or intentionally consented to the
sale or disposition of, any Subject Assets being purchased hereunder (except for
sales in the ordinary course of Borrower's business and for the sale pursuant
hereto), and has not heretofore sold, assigned, transferred or participated any
of its interests in the Subject Assets being purchased hereunder.
9.2 Brokers. Bank has not retained, utilized or been
represented by any broker or finder in connection with the transactions
contemplated by this Agreement.
9.3 Bank's Right to Dispose of Subject Assets. Bank has the
right to sell the Subject Assets pursuant to the terms of Bank Loan Documents
and pursuant to the applicable provisions of the UCC.
9.4 [Intentionally Omitted.]
9.5 Enforceability of Bank Loan Documents. Bank Loan Documents
are enforceable against Borrower and the Subject Assets in accordance with their
terms, subject to applicable bankruptcy, insolvency, bank moratorium or similar
laws affecting creditors' rights and remedies generally and, as to
enforceability, to general principles of equity regardless of whether
enforcement is sought in a preceding at law or in equity; provided, however,
that Bank is unaware of any such principle that may be applicable.
9.6 Corporate Authority. The execution of this Agreement and
the other documents, agreements and instruments to be executed and delivered by
Bank in connection herewith, and the consummation of the transactions
contemplated hereby, are within the authority of the individual who shall
execute this Agreement on behalf of Bank. The Bank is authorized to conduct
business in the State of New York.
9.7 Security Interest, Lien and Mortgage. Pursuant to the
terms of Bank Loan Documents, at the Closing, Bank shall warrant that it has a
perfected, first priority (to the extent that priority may be determined by
public records) security interest in and lien upon the Subject Assets.
9.8 Litigation. Except as previously disclosed by Bank in
writing, to the best of Bank's knowledge, no action, suit, proceeding or
investigation is pending or threatened against Borrower, relating to, affecting,
or questioning the validity of this Agreement or challenging any of the
transactions contemplated hereby.
9.9 Lack of Bad Faith. Bank has no reason to believe that
Buyer is acting in bad faith in connection with this Agreement.
9.10 Subordinate Liens. Other than those liens reflected on
part II of Schedule 2.2, Bank has no knowledge of other liens on the Subject
Assets.
10. Bank's Intent, Representation and Warranty Regarding Transfer of
the Subject Assets. Bank intends, under Section 9-504 of the UCC and Bank Loan
Documents, and, in accordance with applicable law, to transfer all of Borrower's
rights, title and interest in the Subject Assets to Buyer for value and to
discharge the security interest under which it is made and any security interest
or lien subordinate thereto. Bank represents and warrants to Buyer that, at
Closing, Buyer shall receive, through execution of this Agreement, execution of
Exhibit B, the transfer of Borrower's interests in and to the Subject Assets
free and clear of Bank's security interest and lien therein, and any security
interest or lien subordinate thereto. It is further understood and agreed by
Bank and Borrower that regardless of Bank's application of the Purchase Price,
the Purchase Price is in consideration of Borrower's Obligations to Bank,
regardless of the validity or enforceability of Bank's lien with respect to any
particular asset being sold.
11. Limitation of Bank's Liability. Buyer agrees that Bank's liability
in the event that any of Bank's representations, covenants or warranties set
forth in Sections 9 and 10 above are breached, shall not, in any event, exceed
the Purchase Price.
12. Agreement Concerning Post-Closing Collections. Bank and Borrower
each agrees that it will promptly turn over to Buyer, in form received, all
cash, checks and other items of payment which are received by or otherwise come
into its possession after the Closing Date, which represent payments by account
debtors which shall become the property of Buyer. Buyer agrees that it will
promptly turn over to Bank, in form received, all cash, checks, and other items
of payment which are received by or otherwise come into Buyer's possession
relating to refunds from Borrower's Workers' Compensation insurance plans and
Borrower's real property insurance policies. Prior to delivery to Buyer of
amounts which are the property of Buyer, Bank or Borrower, as applicable, will
hold all such cash, checks and other items of payment in trust for Buyer.
13. Buyer's Conditions to Closing; Deliveries to Buyer at Closing. The
obligation of Buyer to consummate the Closing shall be subject to the
satisfaction, at or prior to Closing, of the conditions that (a) Buyer shall
have received, duly executed (unless waived) by Bank a General Assignment and
Xxxx of Sale covering the Subject Assets in the forms of Exhibit B hereto dated
as of the Closing Date; (b) Buyer shall have received possession of the Subject
Assets; and, (c) no bankruptcy or insolvency petition shall have been filed by
Borrower or filed against Borrower which has not been dismissed. Buyer
specifically agrees that its obligation to consummate the transactions embodied
in this Agreement is not conditioned or contingent upon: (a) the satisfactory
results of any further due diligence by Buyer; or (b) the obtaining of any
financing.
The obligation of Buyer to consummate the Closing shall also be subject
to the satisfaction prior to the Closing of the following additional conditions
(unless waived):
13.1 Representations and Warranties True. All representations,
certifications and warranties of Bank and Borrower hereunder shall be true as of
the Closing Date in every material respect.
13.2 No Default by Bank or Borrower. Each of Bank and Borrower
shall have performed and complied with all agreements, covenants and conditions
required by this Agreement, or by any agreement executed and delivered or to be
executed and delivered in connection herewith or pursuant hereto, to be
performed or complied with by either of them, prior to or at the Closing.
13.3 No Statutes, Rules or Orders. There shall be no statute,
rule, regulation or order of any court or administrative agency in effect which
prohibits Bank, Borrower or Buyer from consummating the transactions
contemplated hereby.
13.4 Closing. The Closing shall have occurred on or before
February 1, 2001, or such later date as Buyer and Bank may mutually agree upon
in writing.
13.5 Completion of Schedules. All schedules and exhibits to
this Agreement shall be completed on or before the Closing to Bank's and Buyer's
satisfaction.
14. Bank's Conditions to Closing; Delivery to Bank at Closing. The
obligation of Bank to consummate the Closing shall be subject to the
satisfaction, at or prior to Closing, of the following conditions (to the extent
noncompliance is not waived in writing by Bank):
14.1 Consideration Paid. Bank shall have received the Purchase
Price.
14.2 Notice of Sale. Notice of the sale of the Subject Assets
contemplated hereby shall have been given (in form and substance satisfactory to
Bank) to all other entities entitled to notice under Section 9-504 of the UCC
who have not waived in writing after default their right to receive such notice
prior to the Closing Date.
14.3 Reaffirmation by Borrower Parties. Bank shall have
received a Reaffirmation, Release, Consent and Acknowledgment dated as of the
Closing Date in a form reasonably acceptable to Bank and the Guarantor.
14.4 Reaffirmation, Release, Consent and Acknowledgment. Bank
shall have received a Reaffirmation, Release, Consent and Acknowledgment dated
as of the Closing Date in a form reasonably acceptable to Bank and Borrower.
14.5 No Statutes, Rules or Orders. There shall be no statute,
rule, regulation or order of any court or administrative agency in effect which
prohibits Bank, Borrower or Buyer from consummating the transactions
contemplated hereby.
14.6 Representations and Warranties True. All representations,
certifications and warranties of Buyer and Borrower and the Borrowing Parties
hereunder shall be true as of the Closing Date in every material respect.
14.7 No Default By Buyer or Borrower. Each of Buyer, Borrower
and the Borrowing Parties shall have performed and complied with all agreements,
covenants and conditions required by this Agreement or by any agreement executed
and delivered or to be executed and delivered in connection herewith or pursuant
hereto, to be performed or complied with by either of them, prior to or at the
Closing.
14.8 Violation of Law. No violations of law shall have
occurred which could, in Bank's judgment, have an adverse impact on Bank's
ability to consummate the transactions contemplated hereby.
14.9 Access. For the period between execution of this
Agreement and Closing, Borrower shall have made available to Bank and Buyer, and
allowed Bank and Buyer access to, the Subject Assets and the books and records
of Borrower related thereto.
14.10 No Violation of Agreements. The making, execution,
delivery, and performance of this Agreement by Bank and Buyer will not violate
or conflict with any restriction binding upon or relating to Buyer or its
business, operations, properties, or assets.
14.11 Other Documents. Bank shall have received such other
documents, instruments or certificates as Bank may reasonably request with
respect to any matter relevant to this Agreement, the transfer of the Subject
Assets, or the transactions contemplated by this Agreement.
14.12 Closing. The Closing shall have occurred on or before
February 1, 2001, or such later date as Bank or Buyer may mutually agree upon in
writing.
14.13 Completion of Schedules. All schedules and exhibits to
this Agreement shall be completed on or before the Closing to Bank's and Buyer's
satisfaction.
15. General.
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15.1 Expenses. Except as otherwise agreed herein, or as
provided in the Loan Agreement and related documents, all expenses of the
preparation, execution and consummation of this Agreement and of the
transactions contemplated hereby, including, without limitation, attorneys,
accountants and outside advisor's fees and disbursements, shall be borne by the
party incurring such fees; provided, however, that: (i) nothing contained herein
shall in any manner alter, limit, or modify Bank's right to have such fees and
expenses reimbursed pursuant to the provisions of the Loan Agreement and any of
the Related Agreements and documents; and (ii) any and all such fees and
expenses incurred by or on behalf of Bank are hereby deemed to be part of and
added to the Obligations (as defined in the Loan Agreement) of Borrower and/or
each of the Co-Borrowers/Guarantors.
15.2 Notice. All notices, demands and other communications
hereunder shall be in writing or by written telecommunication, and shall be
deemed to have been duly given if delivered personally, if mailed by certified
mail return receipt requested, if mailed postage prepaid, or if sent by written
telecommunication, confirmation of receipt received, as follows:
If to Bank, to:
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Asset Based Lending Division
With a copy sent contemporaneously to:
Xxxxxx Xxxxxx Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxx, Esq.
If to Buyer, to:
Independent Steel Products, LLC
c/o Kestenbaum & Xxxx
00 Xxxxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxxx
With a copy sent contemporaneously to:
Xxxxxxx Xxxxxxxxxx
00 Xxxxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
If to Borrower, to:
c/o Colonial Commercial Corp.
0000 Xxxxxxxxx Xxxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxx
With a copy sent contemporaneously to:
Xxxxx Xxxxxx
000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
15.3 Entire Agreement. This Agreement and the related
schedules, exhibits and agreements delivered in connection herewith contain the
entire understanding of the parties with respect to the subject matter hereof,
supersede all prior agreements and understandings relating to the subject matter
hereof, and shall not be amended except by a written instrument hereafter signed
by all of the parties hereto.
15.4 Governing Law. The validity and construction of this
Agreement shall be governed by the internal laws of the State of Illinois
without regard to principles of conflicts of laws.
15.5 Sections, Section Headings and Defined Terms. All
enumerated subdivisions of this Agreement are herein referred to as "sections"
or "subsections." The headings of the sections and subsections are for reference
only and shall not limit or control the meaning thereof. Capitalized terms
contained in the Exhibits or Schedules to this Agreement, which are not
otherwise defined in such Exhibits or Schedules, shall have the meaning ascribed
to them in this Agreement.
15.6 Successors. This Agreement shall be binding upon and
inure to the benefit of each of the parties hereto and their respective heirs,
successors and assigns; provided, however, that no party may assign, whether
absolutely or merely for collateral purposes, its rights, claims and benefits
hereunder to any other person or entity without the express written consent of
each of the other parties to this Agreement; provided, however, that Buyer
cannot assign its indemnification obligations set forth in this Agreement.
15.7 Survival of Representations and Warranties. The
representations and warranties of the parties hereto contained in this
Agreement, notwithstanding any investigation by Buyer, Borrower or Bank, shall
be deemed to have been relied upon by Buyer, Borrower or Bank, as the case may
be, and shall survive the Closing and consummation of the transactions
contemplated hereby.
15.8 Further Assurances. From time to time, at the reasonable
request of another party hereto, each party hereto shall execute and deliver
such further instruments and take such further actions at the expense of the
requesting party, as such requesting party may in good xxxxx xxxx necessary or
desirable in order to assure that the transfers, purposes and objectives of this
Agreement are fully accomplished. Without limiting the generality of the
foregoing, Borrower and Bank will render every reasonable assistance to Buyer
with respect to the sale, assignment, transfer, and delivery of the Subject
Assets to Buyer; and in the event of commencement hereafter of any case by or
against Borrower pursuant to Xxxxx 00, Xxxxxx Xxxxxx Code, Borrower and Bank
will take all necessary action forthwith to cause, authorize, and support the
effectuation of such sale, assignment, transfer, and delivery of the Subject
Assets to Buyer pursuant to the terms of this Agreement.
15.9 No Implied Rights or Remedies. Except as otherwise
expressly provided herein, nothing herein express or implied is intended or
shall be construed to confer upon or to give any person, firm, or corporation
other than Bank, Borrower and Buyer any rights or remedies under or by reason of
this Agreement.
15.10 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement.
15.11 Risk of Loss. Except with respect to a violation of any
of the representations and warranties made herein by Bank or Borrower, the risk
of any loss that may occur with respect to any of the Subject Assets or the Real
Property being purchased hereunder shall be borne by Buyer immediately upon and
at all times after the Closing Date. Except solely as provided in the last
sentence of this Section 15.11, Bank and Borrower shall have no liability
whatsoever to Buyer for any loss or damage to the Subject Assets or Real
Property being purchased hereunder that may occur on and after consummation of
the Closing. Bank and Borrower shall and do hereby assign and transfer to Buyer
at Closing all claims, causes of action or rights relating to any insured loss
for the Subject Assets or the Real Property.
15.12 Limited Responsibility. Each party hereto acknowledges
and agrees that it is the mutual intent of the parties hereto that the
obligations, representations, warranties and undertakings hereunder or as a
result hereof or of the transactions contemplated hereby are and be limited to
only those expressly set forth herein, and not enlarged by implication,
operation of law or otherwise. Without limiting the generality of the foregoing,
Bank shall have no responsibility, liability or any other obligation whatsoever
to Buyer or any other person or entity for any breach by Borrower or any other
person or entity (including Guarantor) of any of its respective representations,
warranties, covenants or other obligations to Buyer set forth in any document
delivered to Buyer by or on behalf of Borrower or such other person or entity in
connection with this Agreement or the transactions contemplated hereby.
15.13 UCC Redemption. The parties acknowledge that, at any
time before the Closing, Borrower or any other secured party of Borrower may
redeem the pertinent Subject Assets by tendering fulfillment of all Obligations
(including but not limited to the expenses reasonably incurred by Bank in
retaking, holding and preparing the Subject Assets for disposition, in arranging
for the sale, and to the extent not prohibited by law, Bank's reasonable
attorneys' fees and legal expenses). If such a redemption should occur, Bank
shall be relieved of its obligations, and Buyer shall be entitled to the return
of any portion of the Purchase Price theretofore paid by it pursuant to the
provisions of this Agreement. Borrower hereby waives, to the fullest extent
permitted by law, any right to redeem any of the Subject Assets.
16. No Indemnification. Neither Bank nor Borrower agree to hold Buyer
harmless from and with respect to any claims, liabilities, losses, damages,
costs or expenses whatsoever, and nothing in this Agreement shall be construed
to create any such indemnification.
[Signature Page Follows.]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly respective officers as of the date and the year first
above written.
WELL-BILT STEEL PRODUCTS, INC.,
a New Jersey corporation
By:/s./ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
ATLANTIC HARDWARE & SUPPLY CORPORATION,
a New York corporation
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Secretary
UNIVERSAL SUPPLY GROUP, INC.,
a New York corporation
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
COLONIAL COMMERCIAL CORP.,
a New York corporation
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
LASALLE BANK NATIONAL ASSOCIATION,
a national banking association
By:/s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: First Vice President
INDEPENDENT STEEL PRODUCTS, LLC
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Manager
