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EXHIBIT 10.42
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT (this
"Amendment") dated as of January 8, 1998, is among BINHAD, INC. (formerly known
as CAPITOL METALS CO., INC.), a California corporation ("Seller"), 00000 X.
Xxxxxxx Xxx., Xxxxxxxx, Xxxxxxxxxx 00000; CONSOLIDATED CAPITAL OF NORTH
AMERICA, INC., a Colorado corporation ("CCNA"), 000 - 00xx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000, and ANGELES ACQUISITION CORP., a Delaware corporation
("AAC"), 000 - 00xx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000. This Amendment
is made with reference to the following facts:
WHEREAS, Seller and CCNA have entered into that certain Asset
Purchase Agreement, dated as of December 1, 1997 (the "Asset Purchase
Agreement"), as amended by that certain Order Approving Sale of Substantially
All Property of the Estate Free and Clear of Liens and Interests (the "Sale
Approval Order"), entered December 29, 1997 by the U.S. Bankruptcy Court in
Seller's pending chapter 11 case;
WHEREAS, the Asset Purchase Agreement as amended by the Sale
Approval Order provides, among other things, for the sale by Seller and the
purchase by CCNA of the Assets (as defined in the Asset Purchase Agreement);
WHEREAS, CCNA, with the consent of Seller, desires to assign
to AAC all of CCNA's rights under the Asset Purchase Agreement as amended by
the Sale Approval Order, and AAC desires to assume the obligations of CCNA
under the Asset Purchase Agreement, on condition that CCNA remains liable,
jointly and severally with AAC, for all of CCNA's obligations under the Asset
Purchase Agreement as amended by the Sale Approval Order; and
WHEREAS, the parties further desire to amend Schedule 1.3 to
the Asset Purchase Agreement in its entirety as provided herein;
NOW, THEREFORE, in consideration of the foregoing recitals,
the mutual promises herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereby agree as follows:
1. Definitions. Except as otherwise indicated herein,
capitalized terms used herein and not otherwise defined shall have the meanings
ascribed thereto in the Asset Purchase Agreement.
2. Assignment. CCNA hereby assigns, transfers and
conveys to AAC all of CCNA's rights and interests in, to and under the Asset
Purchase Agreement as amended by the Sale Approval Order. AAC, and its
successors and assigns, shall be entitled to exercise and receive all rights
and benefits inuring to, and shall be subject to all obligations and
liabilities of, CCNA as "Purchaser" under the Asset Purchase Agreement as
amended by the Sale Approval Order, as though AAC was initially a party to the
Asset Purchase Agreement.
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3. Acceptance of and Consent to Assignment. AAC hereby
accepts the foregoing assignment from CCNA. Seller hereby consents to such
assignment upon all of the terms and conditions provided in this Amendment.
4. Assumption of Obligations. AAC hereby agrees to
assume, pay, perform, discharge and fulfill all of the duties, liabilities and
obligations of CCNA under the Asset Purchase Agreement as amended by the Sale
Approval Order; provided, however, that CCNA remains liable, jointly and
severally with AAC, to pay, perform, discharge and fulfill all of the duties,
liabilities and obligations of CCNA as "Purchaser" under the Asset Purchase
Agreement as amended by the Sale Approval Order, as if this Amendment had never
been made.
5. Further Assurances. Each party agrees to execute and
deliver such additional instruments and to take such further actions as may
reasonably be required by another party to fully effectuate the assignment of
rights and interests and the assumption of obligations and liabilities intended
hereby, including, without limitation, the execution and delivery by any party
of additional instruments of assignment and assumption.
6. Amendment to Schedule 1.3. The existing Schedule 1.3
to the Asset Purchase Agreement as amended by the Sale Approval Order shall be
deemed to be deleted in its entirety, and a new Schedule 1.3, in the form
attached to this Amendment, shall be substituted therefor.
7. Binding Effect. This Amendment shall bind and inure
to the benefit of the parties hereto and their respective successors and
assigns.
8. No Release. Nothing contained in this Amendment
shall, or shall be deemed to, release Seller or CCNA from any of their
respective obligations under the Asset Purchase Agreement. The parties hereby
ratify and confirm all of the provisions of the Asset Purchase Agreement, as
amended by the Sale Approval Order and this Amendment.
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IN WITNESS WHEREOF, the parties have caused this Amendment to
be executed by their duly authorized officers as of the date first set forth
above.
SELLER:
BINHAD, INC. (formerly known as
CAPITOL METALS CO., INC.)
By: /s/ Xxxxxx X. Eget
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Xxxxxx X. Eget
Chief Executive Officer
CCNA:
CONSOLIDATED CAPITAL OF NORTH
AMERICA, INC.
By: /s/ Xxxxxxxxx Xxxx
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Xxxxxxxxx Xxxx
Chief Executive Officer
AAC:
ANGELES ACQUISITION CORP.
By: /s/ Xxxxxxxxx Xxxx
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Xxxxxxxxx Xxxx
Chief Executive Officer
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