EXHIBIT 10.23
REAL PROPERTY
ASSET PURCHASE AGREEMENT
THIS REAL PROPERTY ASSET PURCHASE AGREEMENT, made and entered into as
of February 8, 2002, by and among NEW YORK JOB DEVELOPMENT AUTHORITY, d/b/a
EMPIRE STATE DEVELOPMENT CORPORATION (the "Seller"), and DUNKIRK ACQUISITION,
LLC (the "Buyer") provides:
RECITALS
WHEREAS, Seller is the secured creditor of and has liens on certain
assets owned by EMPIRE SPECIALTY STEEL, INC. ("ESSI") located in Chautauqua
County, New York; and
WHEREAS, Seller desires to sell to Buyer substantially all of ESSI's
real property which serves as collateral for Seller, and Buyer desires to
purchase such real property all on the terms and conditions set forth below
("Transaction"); and
NOW THEREFORE, in consideration of the promises and of the mutual
agreements and covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, each intending to be legally bound, do hereby agree as follows:
ARTICLE 1
DEFINITIONS
INTENTIONALLY OMITTED
ARTICLE 2
PURCHASE AND SALE
ARTICLE 2.1 AGREEMENT TO PURCHASE AND SELL. Subject to and in accordance
with the terms and conditions of this Agreement, at Closing, Buyer agrees to
purchase, and Seller agrees to sell, transfer, convey and assign all of its
rights, title and interests in and good and marketable title, free and clear of
liabilities, obligations, security interests, liens (including tax liens),
mortgages, leases or leasehold interests, encumbrances and rights of others of
any kind whatsoever (except as permitted in Article 2.4 below) to the following
assets (collectively, the "Assets"):
REAL PROPERTY, all of the mortgaged premises, as described more specifically in
the attached Property Description (EXHIBIT A) and shown on the attached Survey
(EXHIBIT B) that are being foreclosed upon by the Lessor in a mortgage
foreclosure action pending in Chautauqua County under index number 2001-1407,
including but not limited to buildings, structures, improvements, fixtures,
leasehold interests located thereon that have been mortgaged as collateral to
Seller (collectively called the "Premises" or the "Property"). A copy of the
complaint in the foreclosure action attached hereto as EXHIBIT C ("Foreclosure
Action").
ARTICLE 2.2 PURCHASE PRICE.
a) Buyer agrees to pay an aggregate amount to Seller of One
Million, One Hundred Thousand and 00/100 Dollars
($1,100,000.00) pursuant to the payment schedule outlined in
this Agreement (the "Purchase Price"). All funds payable
under this Article shall be paid by means of a wire transfer
to an account designated by the recipient, unless otherwise
mutually agreed to by Buyer and Seller.
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b) MANNER OF PAYMENT.
(i) The sum of One Million, One Hundred Thousand and no/100
Dollars ($1,100,000.00) consisting of the entire Purchase Price shall be paid to
Seller at Closing, as set forth herein. A promissory note (the "Note") in the
form of the Attached EXHIBIT D, in the principal amount of One Million, One
Hundred Thousand and no/100 Dollars ($1,100,000.00), which Note shall bear
interest at a rate of five percent per annum. No payments or interest shall
accrue until the first anniversary of the Closing Date (as defined below).
Thereafter, principal and interest shall be paid in one hundred and eight
consecutive equal monthly installments beginning on the first day of the month
following the first anniversary of the Closing Date.
ARTICLE 2.3 CLOSING ADJUSTMENTS. Buyer shall pay the Purchase Price at
Closing, as adjusted as follows:
a) PRORATIONS.
(i) At Closing, all customary adjustments with respect to
the Assets, and applicable to the period of time before and after Closing, shall
be allocated between Seller and Buyer as of the Closing Date. To the extent
applicable, such amounts shall be shown on the Closing Balance Sheet (as
hereinafter defined), and shall include, without limitation, current and prepaid
real estate taxes, water and sewage charges and other assessments against the
Assets; such amounts owed by Buyer and Seller shall be netted and such net
amount shall be the Purchase Price adjustment at Closing.
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(ii) Each party shall pay its own attorney's fees. Seller
shall be responsible for the payment of real property taxes, assessments and
other charges against the Assets which have accrued and relate to the period
prior to the Closing Date or resulting from the transaction; such amounts owed
by Seller shall be netted and such net amount shall be a Purchase Price
adjustment at Closing.
b) CLOSING BALANCE SHEET. Buyer and Seller shall prepare a
closing balance sheet (the "Closing Balance Sheet") showing the adjustments to
the Purchase Price. Any dispute as to the Closing Balance Sheet shall be
resolved by a Court.
ARTICLE 2.3. EXCLUDED ASSETS AND LIABILITIES. The list of Assets described
in this Agreement as being purchased is exclusive and the Parties agree that all
remaining assets of ESSI and/or Seller are not to be purchased pursuant to this
Agreement and shall be Excluded Assets. It is further agreed that in acquiring
the Assets, Buyer is not assuming or undertaking to assume and shall have no
responsibility for any liabilities whether fixed or contingent, past, present or
future, or direct or indirect, arising out of or in connection with the Assets,
or any other acts or omissions of ESSI and/or Seller in connection therewith
prior to the Closing (collectively referred to as the "Excluded Liabilities"),
including without limitation, (i) any claim arising out of or in connection with
the failure by ESSI or Seller to comply with any applicable government
regulation; (ii) federal, state or local tax liabilities (including any
depreciation, investment tax credit recapture and rollback taxes); (iii) any
claim arising out of or in connection with any Employee Plans of ESSI or Seller
or with the employment by ESSI or Seller of any of its employees or any past
employees or with the termination of any current employees; (iv) any claim
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resulting from defective products or workmanship (including any recalls or
returns with respect thereto) related to goods or services invoiced prior to
Closing; (v) any claim arising from environmental liabilities, and (vi) any
claim under any provision of the New York Uniform Commercial Code or bulk sales
law.
LIMITATIONS ON WARRANTIES. EXCEPT FOR THOSE WARRANTIES EXPRESSLY SET FORTH
IN THIS AGREEMENT, SELLER EXPRESSLY DISCLAIMS AND NEGATES AND BUYER HEREBY
WAIVES, ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE. AS EXAMPLES AND FOR THE AVOIDANCE OF DOUBT, BUT WITHOUT LIMITATION OF
THE FOREGOING, THE ASSETS SHALL BE CONVEYED PURSUANT HERETO WITHOUT ANY WARRANTY
OR REPRESENTATION WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT
TO THE QUANTITY, PROFITABILITY, COLLECTIBILITY, QUALITY, CONDITION, SIZE,
WEIGHT, SERVICEABILITY, CONFORMITY TO SAMPLES OR ANY OTHER ASPECT OF THE
FIXTURES, EQUIPMENT OR OTHER PERSONAL PROPERTY INCLUDED AMONG THE ASSETS, ALL OF
WHICH SHALL BE CONVEYED TO THE BUYER AS IS, WHERE IS, AND WITH ALL FAULTS AND
DEFECTS AND IN THEIR PRESENT CONDITION AND STATE OF REPAIR AND WITHOUT ANY
WARRANTIES WHATSOEVER OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.
THE BUYER ACKNOWLEDGES THAT THIS WAIVER IS CONSPICUOUS.
ARTICLE 2.4 SECURITY INTEREST. At the Closing, Buyer shall grant to
Seller a lien on the Assets to the extent of any unpaid balance on the Note.
Buyer agrees to execute all documents
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necessary to grant to Seller such a lien, including but not limited to the
documents ordinarily used by Seller. Copies of such documents that are
applicable to this transaction are attached hereto as EXHIBIT E.
ARTICLE 3
CLOSING
ARTICLE 3.1. CLOSING. The Closing of the sale of the Assets contemplated
by this Agreement ("Closing") shall take place as soon as possible according to
the foreclosure process on real property and once contingency items are
resolved, but not later than February 14, 2002 (the "Closing Date") or such
other earlier time and place as the Parties may mutually agree. All funds
transfers to be made and documents to be delivered on the Closing Date shall be
consummated at that time and place. TIME IS OF THE ESSENCE.
ARTICLE 3.2. SELLER'S CLOSING DOCUMENTS. At the Closing, Seller shall
deliver or cause to be delivered to Buyer in form satisfactory to Buyer's
counsel documents necessary to convey good and marketable title to the Assets
into the name of the Buyer, free and clear of all liens and encumbrances,
including a Bargain and Sale deed with covenant against Grantor's acts.
Notwithstanding the foregoing, Buyer acknowledges that there are open mortgage
liens in favor of Korea First Bank and the parties agree that the existence of
these liens do not constitute a defect in marketable title. Buyer agrees that
Seller and Buyer shall cooperate, after the Closing Date, to discharge such
liens of record. This provision shall apply, where applicable, throughout this
Agreement and shall survive the Closing and the termination of this Agreement. A
certificate signed by Seller's authorized officer that the representations and
warranties herein are true as of the Closing Date.
ARTICLE 3.3. BUYER'S CLOSING DOCUMENTS. At the Closing, Buyer shall
deliver or cause to be delivered to Seller in form satisfactory to Seller's
counsel its Note for payment of Purchase Price, including all prorations and
adjustments thereto, a Mortgage, a Security Agreement, a properly executed
financing statement and a guarantee of payment. Copies of such documents are
attached hereto
A certificate signed by Buyer's authorized officer that the
representations and warranties herein are true as of the Closing Date.
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ARTICLE 4
COVENANTS
ARTICLE 4.1. COVENANTS OF SELLER.
a) The Seller, to the best of its ability and to the extent such books,
records and properties are available from ESSI, will afford Buyer, its advisors
and representatives, and its potential debt and equity financing sources and
their advisors and representatives, immediate and continuing access to such of
the books, records and properties of ESSI as may be necessary in the opinion of
Buyer, its counsel, accountants, environmental consultants and other
representatives to conduct a satisfactory due diligence investigation of all
aspects of ESSI, including, without limitation, the following areas:
environmental, employee obligations, intellectual property, financial, labor
agreements, commercial, operations, utilities, real estate orders and contracts.
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In connection with Buyer's due diligence investigation, the Seller will
permit Buyer and its counsel, financial and other advisors, accountants,
environmental consultants, potential debt and equity financing sources, and
their representatives to conduct such investigation of ESSI's businesses,
assets, liabilities, books and records as Buyer may desire, and will cooperate
fully with Buyer in such investigation. Buyer will be afforded an opportunity to
discuss the environmental status and condition of the Premises with applicable
government authorities.
b) Seller shall cause the Transaction contemplated by this Agreement to
be consummated, including without limitation, the bidding of up to the Seller's
upset price in the foreclosure action if necessary to acquire the title to the
Assets at any foreclosure sale, and shall use its reasonable efforts to obtain
all consents and authorizations of third parties and to make all filings with
and give all notices to third parties which may be necessary or reasonably
required in order to effect the transactions contemplated hereby.
c) From the date of this Agreement Seller will not sell, exchange, or
compromise its existing claims against ESSI or its property.
ARTICLE 4.2. COVENANTS OF BUYER.
a) Buyer shall use its reasonable efforts to cause the transactions
contemplated by this Agreement to be consummated, and shall use its reasonable
efforts to obtain all consents and authorizations of third parties and to make
all filings with and give all notices to third parties which may be necessary or
reasonably required in order to effect the transactions contemplated hereby.
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b) After Closing, Buyer will preserve for a reasonable length of time all
books and records included in the Assets and will give Seller the right, during
normal business hours, to inspect the same and make copies thereof for all
reasonable purposes.
ARTICLE 5
MATERIAL TERMS AND CONDITIONS TO TRANSACTION
In addition to the satisfactory completion of due diligence, the Closing is
subject to satisfaction of various conditions, including the following unless
such condition is waived by Buyer in writing if Seller, through no fault of
Buyer, is unable to satisfy:
a) DEFINITIVE AGREEMENT AND RELATED DOCUMENTATION
. Transfer of clean and unencumbered title to all personal property
of ESSI, as described in the Personal Property Asset Purchase
Agreement between the parties, to Buyer.
. The negotiation, execution and delivery of all necessary permits,
and all supply and utility agreements necessary to the respective
operations of Empire on terms satisfactory to Buyer no later than
February 12, 2002.
b) PROTECTION OF ASSETS
. Seller will immediately take all necessary steps to protect the
Assets from exposure to adverse weather conditions.
. There shall have been no material adverse change, in the
condition of the Assets since June 29, 2001, except as set forth
in Exhibit F.
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c) REGULATORY CONSENTS
. Obtaining appropriate antitrust and other regulatory permits,
consents and approvals and the absence of any injunction or
proceeding which seeks to block the consummation of the
Transaction or any related transaction.
d) ENVIRONMENTAL MATTERS
. With respect to any existing environmental condition on or at the
Premises that may be reasonably expected to impose requirements
for remediation in order to comply with existing environmental
laws, obtaining the agreement or approval from applicable federal
and state regulatory agencies (in the form of a prospective
purchaser agreement, voluntary remediation agreement, or similar
arrangement under applicable federal or state environmental laws
and programs) as to remediation requirements with respect to such
existing environmental conditions, on terms that are reasonably
acceptable to Buyer and to Seller. In this regard, Buyer shal1
have entered into an agreement with the New York DEC regarding
environmental matters, the terms of which shall be satisfactory
to Buyer. In this regard, Seller shal1 have entered into an
agreement with the New York DEC regarding environmental matters,
the terms of which shall be satisfactory to Seller.
e) CORPORATE APPROVALS
. The receipt of all required approvals of the Board of Managers of
Buyer with respect to the consummation of the Transaction and
related transactions.
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. The receipt of all required approvals of the Board of Directors
of the Seller with respect to the consummation of the Transaction
and related transactions.
f) TITLE AND POSSESSION OF PREMISES
. Seller, prior to or on the Closing Date, shall have obtained good
and marketable title to and possession of the Assets free and
clear of all liens, claims and encumbrances.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
ARTICLE 6.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby
represents and warrants to Buyer as follows:
. Organization and Qualification. Seller is a public benefit
corporation duly organized, validly existing and in good standing
under the laws of the State of New York, and has all requisite
corporate power and authority to own, and lease the properties
and assets it now owns, or is foreclosing on and to carry on its
business as presently conducted to execute and deliver this
Agreement and the other documents and instruments to be executed
and delivered by Seller hereunder, and to consummate the
transactions contemplated hereby and thereby. Seller is duly
licensed or qualified to do business and is in good standing in
each jurisdiction in which the ownership, operation or lease of
the Assets by it, except where the failure
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to be so licensed or qualified or in good standing would not have
a material adverse effect on the business or financial condition
of Seller taken as a whole. Seller has delivered to Buyer true
and correct copies of its Amended Articles of Incorporation and
Regulations, in each case as presently in effect.
. Authority Concerning this Agreement. The execution and delivery
of this Agreement and the other documents and instruments to be
executed and delivered by Seller hereunder, the performance by
Seller of its obligations hereunder and thereunder, and the
consummation by Seller of the transactions contemplated hereby
and thereby have been duly authorized by the Board of Directors,
of Seller. Seller will deliver to Buyer at or prior to the
Closing a complete and correct copy, certified by its corporate
secretary or assistant secretary, of all resolutions theretofore
duly and validly adopted by its Board of Directors evidencing
such authorization (which resolution will not have been modified
or rescinded prior to and will be in full force and effect on the
Closing Date). No other corporate act or proceeding on the part
of Seller is necessary to approve the execution and delivery of
this Agreement by Seller, the execution and delivery of the other
documents and instruments to be executed and delivered by Seller
hereunder, the performance by Seller of its obligations hereunder
and thereunder and the consummation of the transactions
contemplated hereby and thereby.
. Execution and Binding Effect. This Agreement has been duly and
validly executed and delivered by Seller and constitutes, and the
other documents
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and instruments to be executed and delivered by Seller hereunder
upon their execution and delivery by Seller on or prior to the
Closing Date will constitute (assuming in each case the due and
valid authorization, execution and delivery thereof by the other
parties thereto), valid and binding agreements of Seller,
enforceable against Seller in accordance with their respective
terms, except that enforceability may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights, and (b) the remedies of specific performance or
injunctive and other forms of equitable relief may be subject to
certain equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
. Absence of Certain Changes or Events. Except as contemplated by
this Agreement or as set forth on EXHIBIT F attached hereto,
since June 29, 2001, there has not been:
a. Any mortgage or pledge or material lien or other encumbrance
which has not been foreclosed on in Seller's mortgage
foreclosure action, upon any of the Assets, other than
Permitted Liens (as defined in EXHIBIT G hereof);
b. Any sale, transfer or other disposition of any assets of
ESSI that would be included in this Agreement but for such
sale, transfer or other disposition by Seller, and Seller
has not entered into any contract or commitment material to
the business or operations of ESSI, except in the ordinary
course of business with Buyer.
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c. Any destruction or casualty loss, whether or not covered by
insurance, adversely affecting the Assets.
. Seller, prior to the Closing Date, has obtained good and
marketable title to the Assets free and clear of all liens,
claims and encumbrances.
. Seller has legally enforceable debt and lien claims against ESSI
as follows:
1. Note dated January 31, 2001, in the face amount of
$3,360,000.00 amount owed: $2,523,971.39 plus interest and
other charges from December 14, 2001 secured by: mortgage
dated January 31, 2001, executed by Empire Specialty Steel
Inc. to New York Job Development Authority, and recorded in
the Chautauqua County Clerk's Office on January 31, 2001, in
Book 02434 at Page 0372; security agreement in machinery,
equipment furniture and fixtures dated January 31, 2001
between Empire Specialty Steel Inc. and New York Job
Development Authority d\b\a Empire State Development Corp.;
security agreement dated October __, 1999 between Dunkirk
Specialty Steel Inc. and Atlas Steels Inc. and thereafter
assigned to New York Job Development Authority d\b\a Empire
State Development Corp. pursuant to a subordination
agreement dated January 31, 2001
2. Note dated October __, 1999, in the face amount of
$2,499.000.00 amount owed: $1,990,666.60 plus interest and
other charges from October 31, 2001 secured by: mortgage in
the face amount of $10,000,000.00 given by Al Tech Specialty
Steel Corporation to New York State, Department of Commerce-
Trust Fund 226-01, and recorded in the Chautauqua County
Clerk's office on August 2, 1976, in Book 1376 of Mortgages
at page 175, as corrected by correction mortgage recorded in
the Chautauqua County Clerk's office on January 25, 1979, in
Book 1501 of Mortgages at page 186, which was subsequently
subordinated to the aforementioned mortgage dated January
31, 2001;
security agreement in equipment dated October __, 1999
between Dunkirk Specialty Steel Inc. and New York Job
Development Corp. d\b\a Empire State Development Corp.
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3. Note dated January 31, 2001, in the face amount of
$1,000,000.00 amount owed: $973,395.15 plus interest and
other charges from October 31, 2001 secured by:
security agreement in machinery, equipment, furniture and
fixtures dated January 31, 2001, between Empire Specialty
Steel Inc. and New York Job Development Authority d\b\a
Empire State Development Corp
ARTICLE 6.2 REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby
represents and warrants to Seller as follows:
. Organization and Qualification. Buyer is a Limited Liability
Company duly organized, validly existing and in good standing
under the laws of the State of Delaware, and has all requisite
corporate power and authority to own, and lease the properties
and assets it now owns, or is foreclosing on and to carry on its
business as presently conducted to execute and deliver this
Agreement and the other documents and instruments to be executed
and delivered by Buyer hereunder, and to consummate the
transactions contemplated hereby and thereby. Buyer is duly
licensed or qualified to do business and is in good standing in
each jurisdiction in which the ownership, operation or lease of
the Assets by it or the conduct of the business of Dunkirk
requires such licensing or qualification, except where the
failure to be so licensed or qualified or in good standing would
not have a material adverse effect on the business or financial
condition of Buyer taken as a whole. Buyer has delivered to Buyer
true and correct copies of its Articles of Organization and
Operating Agreement, in each case as presently in effect.
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. Authority Concerning this Agreement. The execution and delivery
of this Agreement and the other documents and instruments to be
executed and delivered by Buyer hereunder, the performance by
Buyer of its obligations hereunder and thereunder, and the
consummation by Buyer of the transactions contemplated hereby and
thereby have been duly authorized by the Board of Managers, of
Buyer. Buyer will deliver to Seller at or prior to the Closing a
complete and correct copy, certified by its corporate secretary
or assistant secretary, of all resolutions theretofore duly and
validly adopted by its Board of Managers evidencing such
authorization (which resolution will not have been modified or
rescinded prior to and will be in full force and effect on the
Closing Date). No other corporate act or proceeding on the part
of Buyer is necessary to approve the execution and delivery of
this Agreement by Buyer, the execution and delivery of the other
documents and instruments to be executed and delivered by Buyer
hereunder, the performance by Buyer of its obligations hereunder
and thereunder and the consummation of the transactions
contemplated hereby and thereby.
. Execution and Binding Effect. This Agreement has been duly and
validly executed and delivered by Buyer and constitutes, and the
other documents and instruments to be executed and delivered by
Buyer hereunder upon their execution and delivery by Buyer on or
prior to the Closing Date will constitute (assuming in each case
the due and valid authorization, execution and delivery thereof
by the other parties thereto), valid and binding agreements of
Buyer, enforceable against Buyer in accordance
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with their respective terms, except that enforceability may be
limited by (a) bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to
creditors' rights, and (b) the remedies of specific performance
or injunctive and other forms of equitable relief may be subject
to certain equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
ARTICLE 7
CONDITIONS PRECEDENT
ARTICLE 7.1. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER. Seller's
obligations hereunder are contingent upon the fulfillment of the following
conditions :
. Buyer shall not be in default of any of its other Agreements with
Seller and shall have performed in all material respects its
obligations hereunder to be performed on or before the Closing
Date.
a. The Seller shall have signed an Agreement (acceptable to
Seller) with the New York State Department of Environmental
Conservation regarding the environmental condition of the
property and release from liabilities.
b. Satisfactory completion of Article 5 of the Agreement
applicable to Seller.
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c. Seller to receive Representations and Warranties from Buyer
as to the authority to buy the Property.
ARTICLE 7.2. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER. Buyer's
obligations hereunder unless waived by Buyer in writing are contingent upon the
fulfillment of the following conditions:
a) Seller shall not be in default of any of its other Agreements
with Buyer and shall have performed in all material respects its
obligations hereunder to be performed on or before the Closing
Date.
b) The Buyer shall have signed an Agreement (acceptable to Buyer)
with the New York State Department of Environmental Conservation
regarding the environmental condition of the property and release
from liabilities.
c) The Buyer shall have received from the New York State Department
of Environmental Conservation and others all applicable permits
to operate the facilities.
d) Satisfactory completion of Article 5 of the Agreement applicable
to Buyer.
e) Buyer to receive Representations and Warranties from Seller as to
the Authority to sell the Property.
f) On or before the Closing Date, Seller shall have acquired title
to the Premises, free and clear of any and all liens, claims and
encumbrances.
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ARTICLE 8
RISK OF LOSS; INSURANCE
ARTICLE 8.1 The risk of loss to any of the Assets shall remain with
Seller until Closing, and shall then pass to Buyer and from that time on Buyer
shall be entitled to the proceeds of any insurance obtained by the Buyer and
covering the Assets upon loss due to an insured event or occurrence. In the
event of any material destruction of, or loss or damage to all or any material
portion of the Assets by any casualty prior to the Closing, Buyer may, at its
option, either (i) terminate this Agreement or (ii) waive the foregoing right of
termination and notify Seller of its election to hold the Closing as provided
herein. If Buyer shall so notify Seller, any proceeds of insurance shall be paid
to Seller and Seller, to the extent of insurance proceeds received by Seller,
plus any coinsurance penalty stipulated in the insurance policy promptly, but in
any event not later than thirty (30) days after the casualty, shall replace or
repair that portion of the Assets so damaged such that the Assets are in as good
condition and equivalent value and fit for Buyer's purposes as were the Assets
immediately prior to the casualty, to Buyer's reasonable satisfaction, and the
Purchase Price payable hereunder as to the affected Assets shall not be
adjusted. In the event of any non-material destruction of, or damage or other
casualty to, any of the Assets, or any part thereof, any proceeds of insurance
shall be paid to the Seller, and the Purchase Price payable hereunder as to the
affected Assets shall be appropriately adjusted on the Adjustment Date in
accordance with Article 2.4.
ARTICLE 9
TERMINATION
ARTICLE 9.1 TERMINATION EVENTS. This Agreement may be terminated by:
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a) Buyer, upon written notice to Seller prior to the Closing Date, if any
of the conditions in this Agreement have not been satisfied as of the Closing
Date or if satisfaction of such a condition is or becomes impossible (other than
through the failure of Buyer to comply with its obligations under this
Agreement) and Buyer has not waived such condition on or before the Closing
Date; or
b) Seller, upon written notice to Buyer prior to the Closing Date, if any
of the conditions in this Agreement have not been satisfied as of the Closing
Date or if satisfaction of such a condition is or becomes impossible (other than
through the failure of Seller to comply with its obligations under this
Agreement) and Seller has not waived such condition on or before the Closing
Date; or
c) mutual consent of Buyer and Seller.
ARTICLE 10
MISCELLANEOUS
ARTICLE 10.1 Deleted.
ARTICLE 10.2 CONFIDENTIALITY. This Agreement and any and all discussions
and negotiations related hereto shall be treated as confidential and proprietary
information by each Party, and shall not be disclosed to any third party, except
those parties with a need to know such information to assist such Party in
completing its obligations hereunder, and each Party shall use at least the same
degree of care in protecting such confidential information as it uses in
protecting its own proprietary and confidential information. This obligation of
confidentiality shall terminate with respect to the existence of this Agreement
on the date upon which the Parties
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jointly and publicly announce the signing of this Agreement. Any such public
announcement shall be mutually agreed to by Buyer and Seller prior to
dissemination.
ARTICLE 10.3 EXPENSES AND COMMISSIONS. Seller and Buyer agree to bear
their own legal, accounting and other expenses in connection with the
preparation and consummation of this Agreement and the transactions contemplated
hereby. In the event of a breach of this Agreement, the prevailing party in a
lawsuit or other dispute resolution procedure shall be entitled to recover its
reasonable attorney's fee, costs and expenses from the other party.
ARTICLE 10.4 BENEFIT OF AGREEMENT; ASSIGNMENT. The terms of this
Agreement shall be binding upon and inure to the benefit of the heirs,
successors and assigns of the Parties hereto. No Party shall assign its interest
under this Agreement, by operation of law or otherwise, without the prior
written consent of the other Parties.
ARTICLE 10.5 NOTICES. All notices, demands or other communications given
under this Agreement shall be in writing, and shall be sent by certified or
registered mail, postage prepaid, return receipt requested or by personal
delivery or by overnight courier and addressed as follows: if to Buyer at:
Dunkirk Acquisition, LLC, C/O Universal Stainless & Alloy Products, Inc.,
General Counsel, 600 Mayer Street, Bridgeville, Pennsylvania 15017, with a copy
to Buyer's counsel at William J. Brown, Esq., 3400 HSBC Center, Buffalo, New
York 14203; if to Seller at Empire State Development Corporation, Garry Ryan,
633 Third Street, New York, New York 10017 with a copy to Seller's counsel at
McNamee, Lochner, Titus & Williams, P.C. , Attn: Kevin Laurilliard, Esq., 75
State Street, P.O. Box 459, Albany, New York 12201-0459; or to such other
address as may be designated in writing, which notice of change of address shall
be given in the same manner. A notice shall be deemed delivered (a) three (3)
business days after
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sending, if sent by certified or registered mail, (b) upon delivery, if
personally delivered, or (c) one (1) business day after sending if sent by
overnight courier.
Notices relating to Article 9, Termination may be made by facsimile, e-mail or
in person and are effective immediately upon sending such notice.
ARTICLE 10.6 SEVERABILITY. All agreements and covenants herein are
severable. In the event that any provision of this Agreement should be held to
be unenforceable, the validity and enforceability of the remaining provisions
hereof shall not be affected thereby.
ARTICLE 10.7 GOVERNING LAW; JURISDICTION. This Agreement shall be
enforced, construed and performed in accordance with the laws of the State of
New York as applied to contracts made and fully performed in such state, without
any effect to the choice of law principles thereof. Seller and Buyer hereby
agree that any suit, action or proceeding arising out of or based upon any claim
under this Agreement shall be instituted in the Supreme Court located in
Chautauqua County, New York, and the Seller and Buyer waive any objection which
it may have to the laying of venue of such suit, action or proceeding therein.
ARTICLE 10.8 COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the different parties hereto on separate counterparts (by
facsimile or otherwise), each of which, when so executed and delivered, shall be
an original, but all the counterparts shall together constitute one and the same
instrument.
ARTICLE 10.9 ENTIRE AGREEMENT. This Agreement, together with agreements
executed contemporaneously herewith, constitutes the entire agreement among the
Parties in respect of the transactions contemplated hereby and supersedes all
prior agreements, arrangements and
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undertakings relating to the subject matter hereof. No covenants or conditions
not expressed in this Agreement or in the agreements executed contemporaneously
herewith shall affect or be effected to interpret, change or restrict this
Agreement. This Agreement may be amended only by a writing specifically amending
the Agreement and signed by all of the Parties hereto.
ARTICLE 10.10 MODIFICATION; WAIVER. This Agreement may not be modified,
terminated, rescinded, discharged or canceled, nor may any provision be waived
without the prior written consent of the Party or Parties against whom such
modification, termination, recision, discharge, cancellation or waiver is or may
be asserted. No delay or omission by any Party to exercise any right or power
shall impair any such right or power or be construed to be a waiver thereof. A
waiver of any provision of this Agreement on any occasion shall not constitute a
waiver of such provision on any succeeding occasion.
ARTICLE 10.11 CUMULATIVE REMEDIES. Unless stated otherwise, all remedies
available under this Agreement shall be cumulative and in addition to and not in
lieu of any other remedies available at law, in equity or otherwise. The use of
any one right or remedy by any Party shall not preclude or waive its right to
use any or all other remedies.
ARTICLE 10.12 HEADINGS. The section headings and subheadings contained in
this Agreement, Exhibits, and Schedules are for convenient reference only, and
shall not in any way affect the meaning or interpretation of this Agreement.
ARTICLE 10.13. STRICT CONSTRUCTION. The parties agree that this Agreement
was a result of their joint representation and negotiations. IN THE EVENT THAT
ANY PARTY TO THIS AGREEMENT IS NOT REPRESENTED BY AN ATTORNEY, THEY ARE HEREBY
ADVISED THAT THEY SHOULD CONSULT WITH AN ATTORNEY AND THAT THEY
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HAVE THE RIGHT TO NEGOTIATE THE TERMS OF THIS AGREEMENT. THIS CONSTITUTES A
VALID AND BINDING AGREEMENT. The parties hereby agree that no provision shall be
construed against a particular party to this Agreement on the basis that this
Agreement or any particular provision in this Agreement was proposed, negotiated
or written by such party. This rule of construction is important so that none of
the parties are discourages from drafting this Agreement.
ARTICLE 10.14 GUARANTEE. All of Buyer's obligations under this Agreement
are hereby unconditionally and irrevocably guaranteed by Universal Stainless &
Alloy Products, Inc. upon Closing.
ARTICLE 10.15 INDEMNITY. Seller shall indemnify and hold each of Universal
Stainless & Alloy Products, Inc. and Dunkirk Acquisition LLC and their
respective officers, employees and related parties harmless from, and against,
any and all liabilities, obligations, losses, damages, penalties, claims,
actions, judgments, suits, costs, expenses, and disbursements of any kind or
nature whatsoever (including without limitation, counsel and special counsel
fees and disbursements in connection with any litigation, investigation, hearing
or other proceeding) (collectively, "Liabilities") in connection with, or with
respect or in any way related to, or arising directly or indirectly from this
Agreement or the Transaction related to Seller's failure to sell, transfer,
convey and assign title and interests in and good and marketable title, free and
clear of liabilities, obligations, security interests, liens (including tax
liens), mortgages, leases or leasehold interests, encumbrances and rights of
others of any kind whatsoever (except as permitted in Article 2.4 herein). This
indemnification shall survive the Closing and the termination of this Agreement.
* * *
[Note: In accordance with Item 601(b)(2) of Regulation S-K, the registrant has
omitted the exhibits to this Agreement referenced herein. The registrant hereby
agrees to furnish supplementally a copy of any omitted exhibit to the Commission
upon request.]
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IN WITNESS WHEREOF, the Parties have executed, or caused to be executed,
this Agreement in a manner sufficient to bind them as of the day and year first
above written.
STATE OF NEW YORK NEW YORK JOB
COUNTY OF DEVELOPMENT AUTHORITY
---------------------------- d/b/a EMPIRE STATE
DEVELOPMENT CORPORATION
On this the day of , 20 ,
----- ------------ ---
Before me , the By: /s/ Garry P. Ryan
------------------------------- ---------------------------------------
undersigned officer, personally appeared, known
to me (or satisfactorily proven) to be the person
whose name is subscribed to the within instrument, Its: Controller
and acknowledge that he/she executed the same for --------------------------------------
the purposes therein contained.
In witness whereof, I hereunto set my hand and
Official seals.
- -------------------------------------------
Notary Public
COMMONWEALTH OF PENNSYLVANIA DUNKIRK ACQUISITION, LLC
COUNTY OF
---------------------------------
On this the day of , 20 ,
--------- -------- ---
Before me , the By: /s/ Paul A. McGrath
------------------------------- ---------------------------------------
undersigned officer, personally appeared, known
to me (or satisfactorily proven) to be the person
whose name is subscribed to the within instrument, Its: Executive Officer
and acknowledge that he/she executed the same for --------------------------------------
the purposes therein contained.
In witness whereof, I hereunto set my hand and
Official seals.
- ---------------------------------------------
Notary Public
COMMONWEALTH OF PENNSYLVANIA UNIVERSAL STAINLESS & ALLOY
PRODUCTS, INC.
COUNTY OF Guarantor pursuant to Article 10.14
-----------------------------------
On this the day of , 20 ,
------- ------------- ----
Before me , the By: /s/ C. M. McAninch
---------------------------------- ---------------------------------------
undersigned officer, personally appeared, known
to me (or satisfactorily proven) to be the person
whose name is subscribed to the within instrument, Its: President and Chief Executive Officer
--------------------------------------
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and acknowledge that he/she executed the same
for the purposes therein contained.
In witness whereof, I hereunto set my hand and
Official seals.
- ----------------------------------------------
Notary Public
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