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EXHIBIT 10.81
This Equipment Purchase Agreement, (this "Agreement"), dated
as of January 12, 1999 is made and entered into by and among TPSS
Acquisition Corporation, an Ohio corporation (hereinafter
referred to as "Purchaser"), and Xxxxxxx Xxxxxxxx and Xxxxx
Xxxxxxxx, husband and wife, having an address at 0000 Xxxxxxxx
Xxxx, Xxxxxx, Xxxx (hereinafter collectively referred to as the
"Seller").
RECITALS:
A. WHEREAS, Xxxxxxx Xxxxxxxx, as trustee under Self
determination of Trust dated December 5, 1985, as amended by an
amendment dated July 31, 1998, is the sole shareholder of Toledo
Pickling & Steel Sales, Inc. ("Toledo Pickling");
B. WHEREAS, Toledo Pickling is selling substantially all
of its assets to Purchaser pursuant to a certain Asset Purchase
Agreement ("Asset Purchase Agreement") dated as of December 31,
1998, by and between Toledo Pickling, as seller, and Purchaser,
as buyer, and, pursuant to the terms and conditions of such Asset
Purchase Agreement, Purchaser is assuming certain liabilities of
Toledo Pickling, including Toledo Pickling's rights and
obligations under leases of the Equipment (as defined below)
between Toledo Pickling and the Sellers;
C. WHEREAS, Purchaser desires to purchase such leased
Equipment and to use the same in Purchaser's business; and
D. WHEREAS, Seller desires to sell such Equipment to
Purchaser on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual
promises and covenants hereinafter set forth and other good and
valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties hereby agree as follows:
ARTICLE 1
PURCHASE AND SALE
Section 1.1 Agreement to Purchase and Sell. Subject to
all of the terms and conditions of this Agreement, Purchaser
shall purchase and the Seller shall sell at the Closing (as
hereinafter defined), all right, title and interest of Seller in
and to the Equipment identified in Section 2 hereof, free and
clear of all mortgages, liens, security interests and
encumbrances. Purchaser shall not exercise its rights hereunder
while there remains an uncured breach of the payment obligations
set forth in Section 4 of the leases of the Equipment between
Toledo Pickling and the Sellers.
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Section 1.2 Equipment to be Sold. The term "Equipment"
shall mean, collectively, (1) the Xxxx-Xxxx .50 inch maximum
level line (serial number 43315-96) and (2) the Xxxx-Xxxx .25
inch maximum level line.
Section 1.3 Purchase Price. As consideration for the
purchase of the Equipment, Purchaser shall, at Closing pay to or
on behalf of Seller the sum of Two Million Five Hundred Thousand
and 00/100 Dollars ($2,500,000.00) as follows (the "Purchase
Price"):
(a) Purchaser shall pay to Seller in immediately available funds
the amount of One Million One Hundred Thousand and no/100 Dollars
($1,100,000.00); and
(b) Purchaser shall deliver to Sellers shares of Series E
Convertible Preferred Stock (stated value $10,000) in
Consolidated Capital of North America, Inc., issued in the name
of Xxxxxxx Xxxxxxxx and Xxxxx Xxxxxxxx, having an aggregate
stated value equal One Million Four Hundred Thousand and no/100
Dollars ($1,400,000.00), which Preferred Stock shall have such
rights, preferences and features as are set forth in the Articles
of Amendment to Articles of Incorporation attached hereto and
incorporated by reference herein as Exhibit A.
ARTICLE II
CLOSING
Section 2.1 Time and Place of Closing. The Closing of
the transaction contemplated by this Agreement occur on April 30,
1998 at 10:00 a.m. at the offices of Xxxxxxx & Xxxxx, 0000
Xxxxxxxx Xxxxx, Xxxxxx, Xxxx 00000, or at such earlier date and
time and such other place, as Purchaser shall reasonably identify
in writing to Seller (the "Closing Date").
Section 2.2 Items to be Delivered at Closing and Delivery
of Possession. At Closing, (a) Seller shall deliver to Purchaser
a xxxx of sale transferring title to the Equipment to the
Purchaser free and clear of all mortgages, liens, security
interests and encumbrances, and shall take all steps as may be
required to put Purchaser in actual possession and operating
control of the Equipment; and(b) Purchaser shall deliver to or on
behalf of Seller the Purchase Price as set forth in Section 1.3
above.
Section 2.3 Further Assurances. From time to time after
the Closing, at Purchaser's request and expense, Seller shall
execute, acknowledge and deliver to Purchaser such other
instruments of conveyance and transfer and shall take such other
actions, including but not limited to, efforts to obtain any
necessary third-party consents, as Purchaser may reasonably
require.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as
follows:
Section 3.1 Title to Equipment; Prior Sale. As of
Closing, Seller shall have good and marketable title to the
Equipment, free and clear of all mortgages, liens, security
interests and other encumbrances and defects of title. Seller
shall have not made any prior sale, assignment, or transfer of
the Equipment, provided that nothing herein shall be construed to
prohibit Purchaser's assumption of the existing Lease with
respect to the Equipment.
Section 3.2 Right, Power and Authority. Seller has the
right, power and authority to execute, deliver and perform this
Agreement. All agreements and instruments required to be
executed by Seller hereunder will be duly executed and delivered
by Seller and constitute the valid and legally binding obligation
of Seller, enforceable against Seller in accordance with the
terms hereof and thereof.
Section 3.2 Implied Warranties. The Equipment is being
sold "as is." Seller makes no warranties with respect to the
Equipment, except as set forth in this Article III, including but
not limited to implied warranties of merchantability and fitness
for a particular purpose.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Headings. The subject headings of the
sections of this Agreement are included for purposes of
convenience only, and shall not affect construction or
interpretation of any of its provisions.
Section 4.2 Entire Agreement; Modification and Waiver.
This Agreement constitutes the entire agreement between the
parties pertaining to its subject matter and supersedes all prior
and contemporaneous agreements, representations and
understandings of the parties. No modification of this Agreement
shall be binding unless executed in writing by all the parties.
No waiver of any of the provisions of this Agreement shall be
deemed, or shall constitute, a waiver of any other provision. No
waiver shall be binding unless executed in writing by the party
making the waiver.
Section 4.3 Governing Law. This Agreement shall be
construed in accordance with, and governed by the laws of, the
State of Ohio.
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IN WITNESS WHEREOF, this Agreement has been executed as of the
12th day of January, 1999.
Seller: Xxxxxxx Xxxxxxxx Seller: Xxxxx Xxxxxxxx
Signature: /s/ Xxxxxxx Xxxxxxxx Signature: /s/ Xxxxx Xxxxxxxx
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Purchaser: TPSS Acquisition Corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President
