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EXHIBIT - 2(a)
AMENDMENT TO AGREEMENT FOR THE
PURCHASE AND SALE OF ASSETS
This Amendment to the Agreement for the Purchase and Sale of Assets is
made as of this 5th day of February, 1996, by and between Met-Coil Systems
Corporation, a Delaware corporation, ("Met-Coil"), Xxxx Machinery & Automation,
Inc., a Texas corporation, ("Seller"), and Mestex, Ltd., a Texas limited
partnership, ("Purchaser").
Met-Coil, Seller, and Purchaser entered into an Agreement for the
Purchase and Sales of Assets as of January 12, 1996 ("Agreement") and now to
desire to amend certain of the terms of that Agreement prior to Closing.
Met-Coil, Seller and Purchaser agree as follows:
1. The first paragraph of Section 1.1 of the Agreement is amended to read
as follows:
1.1 The Assets. Upon the closing of the transactions contemplated
under this Agreement on January 31, 1996, or such other date as mutually agreed
by the parties (the "Closing Date"), and subject to the terms and conditions
contained in this Agreement, Seller shall sell, transfer, convey, assign and
deliver to Purchaser, and Purchaser shall purchase, acquire and accept from
Seller, free and clear of all liens, encumbrances, restrictions and adverse
charges of any nature whatsoever, except as may be permitted by Section 7.7,
all of the assets, rights, interests, properties and goodwill of every nature
whatsoever, tangible or intangible and wheresoever situated, required or
appropriate for the continued operation of the Xxxx Business which is further
defined as the manufacture, application, design, development, engineering,
distribution and sale of various models and types of press feeding and
cut-to-length automation equipment and machinery and the parts and accessories
related thereto set forth by name and drawing number category in Schedule 1.1
attached hereto, and specifically excepting the assets listed in Section 2.
The assets, rights, interests, properties and goodwill sold, transferred,
conveyed, assigned and delivered by Seller to Purchaser hereunder
(collectively, the "Assets") shall include but not be limited to the following:
2. Section 2 of the Agreement is amended to read as follows:
2. Excluded Assets. The assets excluded from the Agreement (the
"Excluded Assets") are all of the assets of Seller not specifically identified
in Section 1, including without limitation the real property and fixtures of
Seller, any rents or profits from the rental of the real property or the right
to receive same, and all of the machinery located in the Seller's facility, any
rents or profits from the rental of the machinery or the right to receive same
and any rights of Seller in the Agreement and the Adjustable Note.
3. Section 3.2 of the Agreement is amended to read as follows:
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3.2 Payment of Purchase Price
3.2.1 On the Closing Date, the portion of the Purchase Price
identified in Section 3.1.1 of the Agreement shall be paid by Purchaser
delivering such amount in cash by wire transfer or other immediately available
funds to Seller (the "Initial Payment").
3.2.2 On the Closing Date the portion of the Purchase Price
identified in Section 3.1.2 shall be paid by Purchaser delivering to Seller an
adjustable note substantially in the form attached hereto as Exhibit 3.2.2 (the
"Adjustable Note"). The terms, conditions, covenants and procedures whereby
the principal amount of the Adjustable Note shall be adjusted based upon the
actual count of the Inventory, the application of the terms of the
representations and warranties set forth in Sections 7.12 and 7.15 of the
Agreement and the covenant of Seller set forth in Section 10.7 of this
Agreement are set forth more fully in Section 3.3 of this Agreement and the
Adjustable Note. The amount of any state or local transfer, conveyance or
recordation taxes imposed by the state or municipality on the transfer of title
of the personal property shall be paid by Seller.
4. Section 3.3.2 of the Agreement is amended to read as follows:
3.3.2 Terms Relating to Adjustment. Seller shall use its best
efforts to value the physical count of the Inventory to be taken immediately
after the Closing Date at its earliest convenience, but not later than thirty
(30) days after the Closing Date. The parties shall work together making such
personnel and records available as necessary to determine and finalize the
adjustments to the principal amount of the Adjustable Note in good faith at
their earliest convenience based upon the valuation of the physical count of
the Inventory, the calculations and standards set forth in Section 3.3.1, the
representations and warranties set forth in Section 7.12 and 7.15 of the
Agreement and the covenant of Seller set forth in Section 10.7 of the
Agreement. Notwithstanding the foregoing, forty-five days after the Closing
Date, Purchaser shall pay Seller in cash a partial payment under the Adjustable
Note of the greater of the amount of $200,000 or the sum of all categories of
the net tangible asset value as defined in Section 3.1.2 which are not in
dispute and are set forth in a preliminary memorandum of understanding executed
by the authorized representatives of each of the parties. The final adjusted
amount due under the Adjustable Note and the calculation of all remaining
adjustments to the Adjustable Note shall be payable in cash not later than
ninety days after the Closing Date, subject to reasonable reserve for amounts
in dispute. All such final adjustments shall be set forth in a memorandum of
understanding prepared and executed by the authorized representatives of each
of the parties.
In the event the parties are unable to agree upon any final
adjustments, such disputes shall be submitted to a partner at a national
accounting firm mutually selected by both sides with a determination to be made
no later than May 31, 1996.
5. Section 11.2.1 is amended to read:
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11.2.1 Purchaser shall deliver to Seller in cash the Initial Payment
and the Adjustable Note with the Adjustable Note.
6. Section 11.2.13 is amended by adding the following sentence at the end of
the section:
Purchaser shall have received from the secured lenders of Seller a
letter of nondisturbance subject to attornment and subordination in a form
acceptable to Purchaser which allows Purchaser the right to remain undisturbed
as a tenant of the real property of Seller and to use the machinery leased
under the Lease as long as Purchaser is a tenant in good standing under the
Lease.
7. All other provisions of the Agreement except as modified herein remain in
full force and effect.
MET-COIL SYSTEMS CORPORATION
BY: Xxxxxxx X. Xxxxxxxx\s\
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Xxxxxxx X. Xxxxxxxx, President
XXXX MACHINERY AND AUTOMATION,
INC.
BY: Xxxxxxx X. Xxxxxxxx\s\
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Xxxxxxx X. Xxxxxxxx, Chairman and
Senior Vice President
MESTEX, LTD., a Texas limited partnership
By: GENTEX PARTNERS, INC., its General
Partner
BY: X.X. Xxxxx\s\
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X.X. Xxxxx,
Vice President
