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EXHIBIT 10.78
This ASSIGNMENT AND XXXX OF SALE, is dated as of January 12,
1999 from Toledo Pickling & Steel Sales, Inc., an Ohio
corporation ("Seller"), to TPSS Acquisition Corporation, an Ohio
corporation ("Purchaser").
RECITALS:
WHEREAS, on the terms and subject to the conditions set
forth in the Asset Purchase Agreement dated as of December 31,
1998 between the Seller and Purchaser (the "Asset Purchase
Agreement"), Seller has agreed to sell, transfer and deliver to
Purchaser, and Purchaser has agreed to purchase, all right, title
and interest of Seller in and to all of the Assets, as defined in
the Asset Purchase Agreement;
WHEREAS, on the Closing Date hereof, in accordance with the
terms of the Asset Purchase Agreement, Seller is selling,
transferring and delivering to Purchaser, and Purchaser is
purchasing from Seller, all of the Seller's right, title and
interest in and to all Assets of the Seller as defined in the
Asset Purchase Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements hereinafter set forth, the
parties hereto agree as follows:
1. Recitals. Each of the above recitals is incorporated
herein as a term and provision of this Assignment and Xxxx of
Sale.
2. Defined Terms. All capitalized terms used in this
Assignment and Xxxx of Sale shall have the meanings ascribed to
such terms in the Asset Purchase Agreement unless otherwise
specifically defined herein.
3. Assignment and Sale. In consideration of the premises
and the payment by Purchaser of the Purchase Price and other good
and valuable consideration, the receipt, adequacy and sufficiency
of which are hereby acknowledged, Seller does hereby sell,
transfer and deliver to Purchaser and its successors and assigns
forever, the Assets of the Seller as defined in, and in
accordance with the terms of, the Asset Purchase Agreement, free
and clear of all mortgages, liens, security interests and
encumbrances.
4. Representations, Warranties and Covenants. Except as
otherwise disclosed in the Asset Purchase Agreement, Seller does
hereby represent and warrant to the Purchaser, and covenant and
agree, that:
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(A) Seller is the owner of, and has good title to, the Assets,
which are free and clear of all claims, liens, encumbrances,
security interests, charges, pledges, or assignments;
(B) Seller has not made any prior sale, assignment or transfer
of the Assets and will not further sell, assign, transfer or
otherwise dispose of any of the Assets, nor will the Seller
create, incur or permit to exist any pledge, lien, encumbrance or
security interest whatsoever with respect to any of the Assets or
the proceeds thereof;
(C) Seller has the present right, power and authority to sell
the Assets to Purchaser;
(D) All action has been taken which is required to make this
Assignment and Xxxx of Sale a legal, valid and binding obligation
of Seller;
(E) All representations, warranties and covenants of the Seller
set forth in the Asset Purchase Agreement are true and correct on
and as of the date hereof, before and after giving effect to the
purchase of the Assets evidenced hereby and to the application of
the proceeds therefrom, as though on and as of such date; and
(F) No event has occurred, or would result from such purchase or
from the application of the proceeds therefrom, which constitutes
or would constitute a breach or default if any one or more of the
representations, warranties and covenants set forth in the Asset
Purchase Agreement but for the requirement that notice be given
or time elapse or both.
5. Further Assurances. The Seller agrees that at any time
and from time to time, after the execution of this Assignment and
Xxxx of Sale, upon the request of Purchaser to execute,
acknowledge and deliver, or to cause to be done, executed,
acknowledged and delivered all such further acts, assignments,
transfers, conveyances, and assurances as may be required for the
consummation of the transactions contemplated by this Assignment
and Xxxx of Sale and the Asset Purchase Agreement.
6. Waiver. No waiver of a breach of, or default under,
any provisions of this Assignment and Xxxx of Sale, or failure to
enforce any right or privilege hereunder, shall be deemed a
waiver of such provision or of any subsequent breach or default
of the same or similar nature or of any other provision or
condition of this Assignment and Xxxx of Sale, or as a waiver of
any of such provisions, rights or privileges hereunder. Neither
the execution, delivery or performance of this Assignment and
Xxxx of Sale shall serve as or constitute a waiver of Purchaser's
rights under the Asset Purchase Agreement, nor do the terms and
provisions hereof amend or modify the Asset Purchase Agreement,
which remains in full force and effect.
7. Amendment. This Xxxx of Sale and Assignment may not be
changed orally, but only by an instrument in writing signed by
all the parties hereto.
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8. Headings. The heading of the sections and subsections
contained in this Xxxx of Sale and Assignment are inserted for
convenience only and do not form a part or affect the meaning
thereof.
9. Governing Law. This Assignment and Xxxx of Sale shall
be governed by and construed and enforced in accordance with the
laws of the State of Ohio.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Xxxx of Sale to be duly signed by an authorized
officer on the day and year first above written.
SELLER:
Toledo Pickling & Steel Sales,
Inc.
By: /s/ Xxxxxxx Xxxxxxxx
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Title: President
PURCHASER:
TPSS Acquisition Corporation
By: /s/ Xxxxxxx Xxxxxx
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Title: President
