EXHIBIT 10.15
AGREEMENT OF PURCHASE AND SALE
[6900 Quad Avenue, Baltimore, Maryland]
THIS AGREEMENT is made and entered into as of the 31st day of May, 2004, by
and between Dale W. Brougher, Trustee ("Seller"), and Empire Resources, Inc, a
Delaware Corporation ("Buyer").
RECITALS:
A. Seller is the fee simple owner of the real property containing
approximately 6.899 acres and building and the related improvements and rights
located at 6900 Quad Avenue, Baltimore, Maryland, further known as Baltimore
County Tax Parcel Map 96, Grid 9, Parcel 236, and having Real Property tax
account identification as District 15, Account No. 1502654470, which is more
specifically described in Exhibit A attached hereto and made a part hereto
(which together with all easements, tenements, hereditaments, and appurtenances
pertaining thereto and the buildings, improvements and fixtures now situated
thereon is called the "Property").
B. Seller desires to sell, and Buyer desires to acquire, the Property on
the terms and conditions set forth in this Agreement.
NOW, THEREFORE, WITNESSETH:
In consideration of and in reliance upon the above Recitals (which are
incorporated in and made a part of this Agreement), and the mutual covenants,
promises and undertakings set forth in this Agreement, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller and Buyer, with intent to be legally bound, agree as
follows:
1. PURCHASE AND SALE OF PROPERTY.
Seller agrees to sell and convey and Buyer agrees to purchase and accept
all of Seller's right, title and interest in and to the Property and the Cranes.
The "Cranes" consists of the following items, which shall remain at the Real
Property following Closing: the three existing overhead cranes located in the
three 70 foot bays previously occupied by Coastal Steel Company and now vacant.
The "Cranes" do not include any cranes located in the portion of the Property
occupied by Gerdau AmeriSteel, Seller's tenant ("AmeriSteel"). Except as herein
otherwise expressly set forth, the Property and Cranes are being sold in "AS IS"
condition.
2. PURCHASE PRICE.
The purchase price ("Purchase Price") which Seller agrees to accept and
Buyer agrees to pay for the Property is Two million five hundred thousand
Dollars ($2,500,000).
3. DEPOSIT.
A. Within five (5) Business Days, as hereinafter defined, after execution
of this Agreement by Seller and Buyer, Buyer shall make an earnest money deposit
of Twenty-five thousand Dollars ($25,000) (the "Initial Deposit"). Within five
(5) business days after the expiration of the Study Period (defined below),
provided this Agreement has not been terminated, Buyer shall make an additional
earnest money deposit of Twenty-five thousand Dollars ($25,000) (the "Additional
Deposit" and together with the Initial Deposit, the "Deposit").
B. The Deposit shall be held in escrow by Manekin LLC ("Escrowee") in an
interest bearing account; interest on the Deposit shall accrue on Buyer's
behalf. The Deposit shall be applied to the Purchase Price at Closing, or
otherwise held and disbursed pursuant to the terms of this Agreement. In the
event the transaction contemplated by this Agreement is closed on the Closing
Date, the Deposit shall be applied to the Purchase Price at Closing and paid to
Seller. In the event that the Closing is not held on the Closing Date, Escrow
Agent shall pay the Deposit to Buyer or Seller, as the case may be, in
accordance with the provisions of this Agreement.
4. CLOSING.
Payment of the Purchase Price and the consummation of the transaction
contemplated by this Agreement is called the "Closing." The Closing shall occur
within ten (10) Business Days after the expiration of the Study Period. Closing
shall be held at the offices of the Buyer's attorneys, Piper Rudnick, 6225 Smith
Avenue, Baltimore, Maryland 21209 or a mutually agreeable location in the
Baltimore area.
5. PAYMENT OF PURCHASE PRICE.
At the Closing, Buyer shall deliver to the Title Company (defined below),
an amount equal to the Purchase Price less the Deposit, plus or minus prorations
as provided herein, via wire transfer in immediately available U.S. funds ("Cash
Balance"), and the Escrowee shall pay the Deposit to the Title Company.
6. STUDY PERIOD.
Within ten (10) days after execution of this Agreement by Seller and Buyer,
Seller shall provide to Buyer the following, to the extent in Seller's
possession: copies of any existing survey and/or as-built drawings of the
Property, any environmental reports pertaining to the Property, any reports
prepared within the past five years pertaining to the physical condition of the
Property, all service agreements currently in effect (which service agreements
are listed on Exhibit B attached hereto), copies of plans and specifications and
copies of warranties concerning the Property that Seller has in its possession,
copies of any owner's policies of title insurance, if any, previously obtained
by Seller with respect to the Property, copies of all real property tax
assessments or bills for the Property for the past three (3) years, copies of
any easement agreements and/or other agreements relating to the development of
the Property and copies of any leases pertaining to the Property. During the
period commencing on the date this
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Agreement is fully executed by both Buyer and Seller and terminating July 30,
2004 (the "Study Period"), Buyer and its agents and representatives may enter
upon and inspect the Property and conduct such environmental, soil, mechanical
and engineering inspections and such sampling or non-destructive testing (the
"Investigations") as Buyer shall deem necessary, subject to the following terms
and conditions.
A. Buyer shall give Seller and AmeriSteel reasonable prior notice of its
intention to inspect the Property or conduct any sampling or testing. Any entry
upon the Property and all Investigations shall be at the sole risk and expense
of Buyer and shall not interfere with the activities on or about the Property of
Seller or AmeriSteel.
B. Any such Investigations of the Property shall be at Buyer's sole cost
and expense, and Buyer agrees to keep the Property and the Cranes free and clear
of any liens which may arise as a result of such inspections, sampling, or
testing.
C. Buyer shall restore promptly any physical damage caused by the
Investigations of the Property and/or Cranes so that the Property and Cranes
shall be in the same condition as that which existed prior to such
Investigations, and so that Buyer shall not interfere with the conduct of
business by AmeriSteel.
D. Buyer shall ensure that all actions taken in connection with the
Investigations, and the equipment, materials, and substances generated, used or
brought onto the Property cause no damage to the Property, the Cranes, or other
property of Seller, AmeriSteel, or others.
E. Notwithstanding any provision in this Agreement to the contrary, if
Buyer shall terminate this Agreement and be entitled to a return of the Deposit,
when expressly permitted under this Agreement, it shall be a condition of the
return of the Deposit that Buyer shall have satisfied its obligations under
paragraphs A through D above; should Buyer fail to do so Seller shall have the
right to require the Deposit to be applied in satisfaction of such obligations
and Buyer shall remain liable for any deficiency in satisfying such obligations.
If Buyer reasonably requires additional time to complete the
Investigations, Buyer shall have the right to extend the Study Period for an
additional thirty (30) days by providing written notice to Seller given to
Seller prior to the expiration of the initial Study Period, in which event the
term "Study Period" shall mean the Study Period as extended.
Buyer shall have the right, in its sole discretion, to terminate this
Agreement by giving to Seller notice of termination which Seller must receive
prior to the end of the Study Period. If Buyer gives such notice, then this
Agreement shall terminate, and Seller shall direct the Escrowee to return the
Deposit to Buyer, and neither party shall have any liability to the other,
subject to the provisions of Section 6.E.
7. PRIOR TO CLOSING.
During the period from the date of Seller's and Buyer's execution of this
Agreement until Closing or the earlier termination of this Agreement, Seller
shall:
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A. not enter into any lease or other occupancy agreement affecting the
Property or modify or extend any existing lease or occupancy agreement
affecting the Property;
B. not enter into any new service contract, except those that are
cancelable on not more than thirty (30) days' written notice and except any
related to environmental testing at the Property;
C. not cause the title to the Property to be adversely changed from
its current status;
D. not sell, transfer, or dispose of all or any part of the Property
except as a result of the exercise of a condemnation (but subject to
Section 15 hereof); and
E. promptly give written notice to Buyer upon obtaining knowledge of
the occurrence of any event which affects the truth or accuracy of any
representations or warranties made by Seller in this Agreement.
8. CONDITIONS OF TITLE.
A. Buyer may obtain an ALTA Owner's Policy of Title Insurance (the "Owner's
Policy of Title Insurance") issued by a reputable title insurance company
selected by Buyer (the "Title Company"). The term "Permitted Encumbrances" shall
mean: (i) the lien of non-delinquent real estate taxes and assessments; (ii)
acts and deeds of Buyer; (iii) restrictions and covenants typically found in the
area where the Property is located; and (iv) the matters approved or deemed
approved by Buyer pursuant to Section 8.B. The premium for the Owner's Policy of
Title Insurance and any endorsements thereto will be paid by Buyer.
B. If Buyer's commitment to insure discloses that title to the Property is
subject to any defect, encumbrance, or other title objection other than the
Permitted Encumbrances, or if Buyer is unable to obtain such commitment to
insure, Buyer shall have the right until the conclusion of the Study Period to
give to Seller written notice specifying such defect, encumbrance, or other
title objection, or inability to obtain such commitment to insure. Seller shall
have (at Seller's election) fifteen (15) days after receipt of such written
notice ("Title Cure Period") to cure such objection. If Seller (in its sole
discretion) does not cure such objection within the Title Cure Period, Buyer
may, within three (3) Business Days after the earlier to occur of (x) receipt of
notice from Seller that Seller does not elect to cure the matter objected to by
Buyer, or (y) expiration of the Title Cure Period, (i) terminate this Agreement
upon written notice given to Seller, or (ii) elect, upon written notice given to
Seller, to take title as it then is without any set-off or deduction of any kind
against the Purchase Price or otherwise. If this Agreement is so terminated,
Seller shall direct the Escrowee to return the Deposit to Buyer, and neither
party shall have any liability to the other, subject to the provisions of
Section 6.E. If Seller does not receive written notice of Buyer's election to
terminate this Agreement within the three (3) Business Day period specified
above, Buyer shall be conclusively presumed to have elected to take title as it
then is.
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9. ENVIRONMENTAL STUDIES. Seller has heretofore had a Phase I Environmental
Audit of the Property conducted by a qualified environmental engineer, and has
commenced on Phase II environmental tests and studies. Within ten (10) days
following execution of this Agreement, Seller shall provide to Buyer, at
Seller's expense, a copy of the Phase I Environmental Audit, and shall request
that the engineer who conducted the study provide a written statement that it
may be relied upon by Buyer and its lender. Within ten (10) days following
receipt of the Phase II environmental tests and studies heretofore commenced,
Seller shall provide a copy thereof to Buyer. If Buyer is not satisfied with the
environmental condition of the Property as described in the Phase I
Environmental Audit and Phase II environmental tests and studies, Buyer may
terminate this Agreement within ten (10) days following its receipt of copies of
the Phase II environmental tests and studies, in which event Seller shall direct
the Escrowee to return the Deposit to Buyer subject to the provisions of Section
6.E, and Buyer and Seller shall be relieved from further liability hereunder, at
law and equity except for such rights or obligations that by the express terms
hereof survive any termination of this Agreement. If the Phase II environmental
tests and studies are not concluded at least ten (10) days prior to the end of
the Study Period, then the Study Period shall be extended to expire ten (10)
days after delivery to Buyer of the report of such Phase II tests and studies.
10. REPRESENTATIONS AND WARRANTIES.
A. Seller represents and warrants to Buyer that:
1. Seller is a trust validly existing under the laws of the
Commonwealth of Pennsylvania, has duly authorized the execution and performance
of this Agreement, and such execution and performance will not violate any
contract or agreement by which Seller is bound.
2. This Agreement is valid and enforceable against Seller in
accordance with its terms, and each instrument to be executed by Seller pursuant
to this Agreement will, when executed and delivered, be enforceable in
accordance with its terms, subject to bankruptcy, insolvency, and similar laws
affecting creditors' rights generally and to principles of equity.
3. As of the date of Closing, there will be no leases or other
occupancy agreements affecting the Property except as disclosed on Exhibit C
(the "Existing Lease").
4. A true correct and complete copy of the Existing Lease and all
amendments thereto is attached hereto as Exhibit D.
5. The Existing Lease is valid and in full force and effect, in
accordance with its terms;
6. To the Landlord's knowledge, the tenant under the Existing Lease is
not in default thereunder;
7. The commencement date of the Existing Lease was April 29, 1999 and
the expiration date of the current term is July 31, 2009, but may be terminated
by AmeriSteel on six months notice. The Lease contains no unexercised options to
extend the term.
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8. There are no attachments or executions affecting the Property,
general assignments for the benefit of creditors, or voluntary or involuntary
proceedings in bankruptcy, pending or, to the best of Seller's knowledge,
threatened against Seller.
9. No approvals or consents by third parties or governmental
authorities are required in order for Seller to consummate the transactions
contemplated hereby.
10. Seller is not a foreign person within the meaning of Section
1445(f)(3) of the Internal Revenue Code of 1986.
11. There are no unrecorded agreements with governmental authorities,
agencies, utilities or quasi-governmental entities with respect to the Property.
12. The contracts relating to the service, maintenance and operation
of the Property, each of which is listed on Exhibit B attached hereto, are all
contracts affecting the Property, that the copies thereof which have been, or
will be, delivered to Buyer are, and will be true, complete and accurate copies
thereof.
13. Seller has not received any currently applicable notice of any
contemplated or actual special assessments or reassessments for general real
estate tax purposes affecting the Property. The Property is separately assessed
for real property tax assessments purposes and not combined with any other
property for such purposes.
14. Seller is not subject to any commitment, obligation, or agreement,
including, but not limited to, any rights of first refusal, redemption rights,
option to purchase, management or leasing agreement in favor of a third party,
which would or could prevent it from completing the transfer of the Property
under this Agreement.
15. No federal, state, or local taxing authority has notified Seller
of any tax deficiency, lien or assessment against the Property which has not
been paid.
16 There are no outstanding construction accounts payable or
mechanics' liens or rights to claim a mechanics' lien in favor of any portion of
the Property as the result of work performed for Seller.
17. Seller has not received any currently applicable written notice
from a governmental agency that the Property is in violation of any
environmental law or regulation.
18. Seller has not received any currently applicable written notice
from a governmental agency of any claimed violation of any applicable laws,
ordinances, regulations, statutes, rules and restrictions pertaining to and
affecting the Property or the Cranes.
19. There is no pending or threatened condemnation or similar
proceeding affecting the Property or any portion thereof, and Seller has no
actual knowledge that any such action is presently contemplated.
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20. The Property is zoned MH IM. To Seller's actual knowledge, there
are no proceedings to change the zoning or land use classification of the
Property or the conditions applicable thereto, and Seller shall not itself apply
for or acquiesce in any such change.
21. To Seller's actual knowledge, the Property has never been used as
a landfill or as a garbage dump.
22. Neither Seller nor any of its agents or employees have made
unrecorded commitments or side agreements with any governmental authority,
utility company, school board, church or other religious body, or any homeowners
or homeowners' association, or with other organization, group, party, or
individual, relating to the Property or Cranes which would impose an obligation
upon Buyer or its successors or assigns to make any contribution or dedication
of money or land or to construct, install, or maintain any improvements of a
public or private nature on or off the Property.
23. To Seller's actual knowledge, the Property has not been identified
by any governmental body or private organization as the habitat of any species
of plant or animal which is endangered or which requires special conservation
measures.
24. To Seller's actual knowledge, no human burial grounds or
archeological sites have been identified as existing upon the Property, and no
improvements upon the Property have been designated by any governmental
authority as having special architectural or historical significance.
B. Buyer represents and warrants to Seller that:
1. The execution and performance of this Agreement will not violate
any contract or agreement by which Buyer is bound.
2. This Agreement is valid and enforceable against Buyer in accordance
with its terms and each instrument to be executed by Buyer pursuant to this
Agreement will, when executed and delivered, be enforceable in accordance with
its terms, subject to bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to principles of equity.
C. Seller represents and warrants to Buyer that it has had no dealings,
negotiations, or consultations with any broker or other intermediary in
connection with this Agreement or the sale of the Property, except for Colliers
Pinkard (the "Broker"). If, as, and when the transaction contemplated hereby is
consummated, Seller shall pay a brokerage commission to the Broker in an amount
previously agreed to by Seller and the Broker. Seller agrees that it will
indemnify, defend and hold Buyer free and harmless from the claims (including
attorneys' fees) of any other broker or other intermediary claiming to have
dealt with Seller in connection with this Agreement or the sale of the Property.
Buyer represents and warrants to Seller that it has had no dealings,
negotiations, or consultations with any broker or other intermediary in
connection with this Agreement or the sale of the Property, except for Manekin,
LLC and the Broker. Buyer agrees that it will indemnify, defend and hold Seller
free and harmless from the claims (including attorneys' fees) of Manekin, LLC or
any other broker or other intermediary (other than the
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Broker) claiming to have dealt with Buyer in connection with this Agreement or
the sale of the Property.
D. It shall be a condition to each party's obligation to close that the
representations and warranties of the other party are true and correct in all
material respects as of Closing.
11. CLOSING COSTS AND PRORATIONS.
A. Any state or county recordation and transfer taxes relating to the
transfer of the Property to Buyer shall be shared equally by Seller and Buyer.
Except as otherwise specifically provided in this Agreement, each party shall
bear its own costs in performing its obligations under this Agreement including,
without limitation, its own attorneys' fees and, in the case of Buyer, all costs
and expenses in connection with the Owner's Policy of Title Insurance as
provided in Section 8 above.
B. The following items are to be prorated or adjusted as of 12:01 a.m. on
the date of Closing:
1. Special assessment liens, sewer charges, and operating or utility
charges actually collected, billed, or paid as of the date of Closing.
2. Real and personal property taxes.
3. Utilities.
4. Rental under the Existing Lease.
C. All prorations and Closing adjustments shall be made on the basis of a
365 day calendar year. All such prorations and adjustments shall be subject to
post-Closing adjustments as necessary to reflect later relevant information not
available at Closing and to correct any errors made at Closing with respect to
such apportionments. The party receiving more than it was entitled to hereunder
shall reimburse the other party hereto in the amount of such overpayment within
thirty (30) days after receiving written demand therefor. Notwithstanding the
foregoing, such apportionments shall be deemed final and not subject to further
post-Closing adjustment if no such adjustments have been requested within ninety
(90) days after Closing.
12. CLOSING DOCUMENTS AND MATTERS.
A. On the Closing Date, Seller shall deliver the following original
documents into escrow, each acknowledged and executed (as appropriate):
1. A Special Warranty Deed to the Property subject to the Permitted
Encumbrances.
2. A special warranty bill of sale with covenants of further
assurances conveying good and marketable title to the Cranes to Buyer subject
only to the Permitted Exceptions.
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3. An Affidavit pursuant to the Foreign Investment in Real Property
Tax Act.
4. An Owner's Title Affidavit on a commercially reasonable form so as
to allow the Title Company to remove the standard exceptions from the Owner's
Policy of Title Insurance.
5. A Settlement Sheet.
6. Such other documents as may be reasonably requested by the Buyer in
accordance with this Agreement or as are customarily executed in Maryland to
effectuate the conveyance of property similar to the Property and/or Cranes.
7. An assignment, without recourse, of all right, title and interest
of Seller in and to that Agreement for industry Track dated November 2, 1966,
between "The Pennsylvania Railroad Company lessee The Philadelphia, Baltimore
and Washington Railroad Company: and Brocker Manufactguring & Supply Company.
B. On the Closing Date, Buyer shall deliver or cause to be delivered
the following original documents into escrow, each acknowledged and executed (as
appropriate):
1. Any evidence of the authority of any permitted assignee of Buyer to
consummate the transaction contemplated hereby that is reasonably requested by
the Title Company.
2. Settlement Sheet.
C. At Closing, Buyer shall cause to be paid to the Title Company the Cash
Balance as required pursuant to Section 5 above and shall direct the Escrowee to
release to the Title Company the Deposit, which Cash Balance and Deposit shall
be immediately disbursed pursuant to the Settlement Statement.
D. Buyer shall be entitled to possession of the Property at the conclusion
of Closing subject only to the matters expressly permitted by or pursuant to
this Agreement.
E. Effective upon Closing, Seller may notify the utility companies serving
the Property of the sale of the Property and direct such companies to (i) return
to Seller any deposit or deposits posted by Seller, (ii) terminate Sellers'
accounts effective on noon on the date of Closing, and (iii) direct to Buyer all
bills for services provided to the Property on and after the date of Closing.
All service contracts relating to the Property shall be terminated by Seller as
of Closing, and Buyer shall have no liability in connection therewith.
13. CONDITIONS PRECEDENT.
The obligation of Buyer to purchase the Property shall be subject to the
satisfaction of the following conditions precedent as of the time of Closing:
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A. Title shall be in the condition contemplated in Section 8.
B. No material change shall have occurred in the physical or environmental
condition of the Real Property.
C. Seller shall have delivered an Estoppel Certificate signed by AmeriSteel
in the form attached hereto as Exhibit E.
In the event any of the conditions set forth in this Section 13 are not
satisfied as of the date of Closing, Buyer shall have the right to (i) waive the
unsatisfied condition and proceed to Closing, or (ii) terminate this Agreement.
In the event of termination under this Section 13, Seller shall direct the
Escrowee to return the Deposit to Buyer, subject to the provisions of Section
6.E. Thereafter the parties shall be relieved of all liability under this
Contract; provided, however, that if any condition(s) are not satisfied as the
result of a breach or default by Seller, Seller shall not be relieved of
liability, Buyer shall be entitled to an immediate refund of the Deposit subject
to the provisions of Section 6.E, and shall further be entitled to pursue any
other rights and remedies which Buyer may have at law or in equity.
14. CASUALTY.
If, prior to Closing, the Property is destroyed or damaged by fire or other
casualty, then Buyer may elect to terminate this Agreement. Buyer shall give
written notice of its election to Seller within ten (10) days after receiving
notice or knowledge of damage. In such event, Seller shall direct the Escrowee
to return the Deposit to Buyer, subject to the provisions of Section 6.E, and
thereupon this Agreement shall be null and void and neither party shall have any
further obligations under this Agreement. If Buyer fails to give such written
notice within such ten (10) day period, the transaction contemplated by this
Agreement shall be consummated as otherwise provided herein. In such event,
Seller will assign to Buyer at Closing the physical damage proceeds of any
insurance policy payable to Seller (including the amount of any deductible), in
an amount not to exceed the Purchase Price. Seller shall have Buyer named on its
insurance policy for the Property, as its interest may appear. Seller shall
maintain in effect until Closing any and all risk casualty insurance currently
maintained by Seller with respect to the Property.
15. CONDEMNATION.
If, prior to Closing, the Property or any part thereof is condemned, then
Buyer may elect to terminate this Agreement. Buyer shall give written notice of
its election to Seller within ten (10) days after receiving notice or knowledge
of damage or condemnation. In such event, Seller shall direct the Escrowee to
return the Deposit to Buyer, and thereupon this Agreement shall be null and void
and neither party shall have any further obligations under this Agreement,
subject to the provisions of Section 6.E. If Buyer fails to give such written
notice within such ten (10) day period, the transaction contemplated by this
Agreement shall be consummated as otherwise provided herein. In such event,
Seller will assign to Buyer at Closing Seller's portion of the condemnation
award (less any costs or expenses paid by Seller in connection therewith), in an
amount that does not exceed the Purchase Price.
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16. DEFAULT.
A. If Buyer shall default under this Agreement prior to Closing, the
Deposit shall be paid by the Escrowee to Seller as liquidated damages, and both
parties shall be relieved of and released from any further liability hereunder,
subject to the provisions of Section 6.E. Seller and Buyer agree that the
Deposit is a fair and reasonable amount to be retained by Seller as agreed and
liquidated damages in light of Seller's removal of the Property from the market
and the costs incurred by Seller, and shall not constitute a penalty or
forfeiture.
B. If Seller shall default under this Agreement prior to Closing or refuse
or fail to convey the Property as herein provided, Buyer's sole remedy therefor
shall be either (1) to terminate this Agreement, and have the Deposit returned
to Buyer, subject to the provisions of Section 6.E, or (2) seek the specific
performance of this Agreement.
17. MISCELLANEOUS.
A. No alteration, modification, or interpretation of this Agreement shall
be binding unless in writing and signed by both parties.
B. If any provision of this Agreement or any application to any party or
circumstances shall be determined by any court of competent jurisdiction to be
invalid and unenforceable to any extent, the remainder of this Agreement or the
application of such provision to such person or circumstances, other than those
as to which it is so determined invalid or unenforceable, shall not be affected
thereby, and each provision hereof shall be valid and shall be enforced to the
fullest extent permitted by law, except that, if as a result thereof, the
consideration to be paid to Seller under this Agreement is diminished in any
material respect, Seller shall have the option, upon written notice to Buyer, to
terminate this Agreement. If this Agreement is so terminated, Seller shall
direct the Escrowee to return the Deposit to Buyer, and neither party shall have
any liability to the other, subject to the provisions of Section 6.E.
C. This Agreement shall be construed and enforced in accordance with the
laws of the State of Maryland.
D. This Agreement may be assigned by Buyer and shall be binding upon and
inure to the benefit of Buyer and Seller and their successors and assigns.
E. Neither Seller nor Buyer shall make any public disclosure of the terms
of this transaction without the prior written consent of the other, except as
may be required by law or applicable governmental regulation.
F. The captions in this Agreement are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope
of this Agreement or the scope or content of any of its provisions.
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G. When used in this Agreement, the term "Business Day" shall mean any day
when national banks located in the State of Maryland are open for business,
other than Saturday or Sunday.
H. Nothing contained in this Agreement shall be construed to create a
partnership or joint venture between the parties or their successors in interest
or any relationship other than seller and buyer.
I. Time is of the essence of this Agreement.
J. This Agreement may be executed and delivered in any number of
counterparts, each of which so executed and delivered shall be deemed to be an
original and all of which shall constitute one and the same instrument.
K. No failure or delay by a party to exercise any right it may have by
reason of the default of the other party shall operate as a waiver of default or
as a modification of this Agreement or shall prevent the exercise of any right
by the first party while the other party continues to be so in default.
L. For the purpose of complying with Internal Revenue Service reporting
requirements for this transaction, the Title Company shall be obligated to
prepare and file the 1099-S form (and any necessary supporting documentation),
and Seller and Buyer shall cooperate with any requests from the Title Company in
connection therewith.
18. NOTICES.
Any notices or requests required or permitted to be given hereunder shall
be (i) hand delivered, or (ii) sent by Federal Express or similar overnight
service for next business day delivery, or (iii) sent by U.S. certified mail,
return receipt requested, or (iv) by telecopier transmission with the original
machine generated transmit confirmation report in all cases addressed to the
parties at their respective addresses set forth below, or, in each case to such
other address as either party may from time to time designate by giving notice
in writing to the other party. Notice shall be considered given as of the date
of hand delivery; the date of the facsimile if a confirmation is received by 5
p.m. local time of a Business Day, otherwise on the next following Business Day;
one (1) Business Day after delivery to the overnight delivery service, or three
(3) Business Days after the date of mailing, independent of the date of actual
delivery or whether delivery is ever in fact made, as the case may be, provided
that the giver of notice can establish that notice was given as set forth
herein.
If to Seller: Dale Brougher
1200 Country Club Road
York, PA 17403
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With a copy to: Friedman & Friedman, LLP
Attn: Gary P. Aiken, Esq.
409 Washington Avenue, Suite 900
Towson, MD 21204
Fax No. 410-494-1429
If to Buyer: Empire Resources, Inc.
Attn: Joe Wolf
One Parker Plaza, 10th Floor
Fort Lee, NJ 07024
Fax No. (201) 944-2226
with a copy to: Piper Rudnick
Attn: Todd Chase, Esq.
6225 Smith Avenue
Baltimore, MD
Fax No. (410) 580-3256
If to Escrowee: Manekin LLC
Attn: Richard Fields
7061 Columbia Gateway Drive
Fax No. 410-423-2017
19. PROVISIONS REGARDING ESCROWEE.
The following provisions are applicable to the Escrowee:
A. Escrowee shall hold and disburse the Deposit in accordance with the
terms and provisions of this Agreement and shall cause the Deposit to be applied
in accordance with the provisions hereof.
B. In the event this Agreement shall be terminated by the mutual written
agreement of the parties, then Escrowee shall pay the Deposit in accordance with
written instructions directed to Escrowee and signed by the parties hereto
authorizing Escrowee to disburse the Deposit in accordance with the terms and
conditions of such written instructions.
C. In the event that Escrowee shall be unable to determine at any time to
whom the Deposit should be paid or a dispute shall develop between the parties
concerning to whom the Deposit should be paid, then, unless Escrowee shall have
received written instructions from the parties within ten (10) days after
Escrowee has served a written request upon the parties for instructions
authorizing Escrowee to disburse the Deposit in accordance with such written
instructions, Escrowee shall have the right by bill of interpleader to pay the
Deposit, less the reasonable expenses of Escrowee, as hereinafter set forth,
into a court of competent jurisdiction
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and interplead the parties in respect thereof, and thereafter Escrowee shall be
discharged of any obligations in connection with this Agreement.
D. All reasonable costs or expenses incurred by Escrowee because of
litigation or dispute between the parties arising out of the holding of the
Deposit in escrow shall be paid by the losing party and charged and assessed as
court costs in favor of the prevailing party. Except for such costs or expenses,
no fee or charge shall be due or payable to Escrowee for its services as escrow
holder.
E. The parties agree that Escrowee assumes no liability in connection
herewith except for its gross negligence or willful misconduct.
F. Escrowee is authorized to disregard any notices received by it except
communications expressly provided for herein and all orders and processes of any
court pertaining hereto.
G. Escrowee shall not be personally liable for any act taken or omitted
hereunder if taken or omitted by it in good faith and in the exercise of its
reasonable judgment. Escrowee shall be fully protected in relying on any written
notice, certificate, or other communication which it in good faith believes to
be genuine.
H. By joining herein, Escrowee undertakes to perform the duties and
obligations imposed upon Escrowee under the terms of this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above, being the date inserted by Seller
as the date of its execution and delivery hereof to Buyer.
Seller:
ATTEST/WITNESS:
Nancy M. Brougher By:
-----------------------------------
Name: W. Dale Brougher
Title: Trustee
Date signed: May 26, 2004
Buyer:
ATTEST/WITNESS: EMPIRE RESOURCES, INC.
Joe Wolf By:
-----------------------------------
Name: Nathan S. Kahn
Title: President
Date signed: May 25, 2004
ATTEST/WITNESS: Escrowee:
MANEKIN LLC
Danielle Kravitz By:
-----------------------------------
Name: Richard Fields
Title: Senior Vice President
Date signed: June 1, 2004
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