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EXHIBIT 2.1h
ASSIGNMENT AND ASSUMPTION
ASSIGNMENT AND ASSUMPTION, dated as of August 31, 1999, by and between
Coach and Car Acquisition Corp., a Nevada corporation ("Purchaser"), and Coach
and Car Equipment Corporation, an Arizona corporation ("Seller").
WHEREAS, by an Asset Purchase Agreement dated August 31, 1999, (the
"Purchase Agreement"), Seller agreed to sell, transfer and deliver, to the
extent transferable, to Purchaser at the Closing certain assets of Seller in
consideration of (i) the payment by Purchaser to Seller of the Purchase price of
such assets, and (ii) delivery by Purchaser to Seller of an undertaking of the
character set forth below.
NOW, THEREFORE, in consideration of the premises and to complete the
actions required of Seller and Purchaser by the Purchase Agreement to effect the
Closing, Purchaser and Seller hereby undertake and agree as follows:
1. The terms defined in the Purchase Agreement, unless otherwise
defined herein or unless the context otherwise requires, shall have the same
defined meanings herein.
2. Purchaser agrees to assume the liabilities of Seller as of August
30, 1999 set out as Exhibit A hereto.
3. Seller hereby assigns to Purchaser all of Seller's right, title and
interest in, to and under the Leases, Contracts, Commitments, and other
agreements described on Schedules 1.1(c)-A, 1.1(c)-B, 1.1(d), 2.9, 2.10, 2.14
and 2.16-A and Exhibit L under the Purchase Agreement (the "Assigned
Instruments").
4. Purchaser hereby assumes and agrees to pay, perform and discharge
the non-delinquent liabilities and obligations of Seller under the Assigned
Instruments.
5. Simula, Inc. ("Simula"), the sole shareholder of Seller, is a
guarantor of Seller's obligations and liabilities under the following Assigned
Instruments:
i) Freightliner Truck Lease and Service Agreement with Rollins
Leasing Corp. dated September 3, 1998;
ii) Elk Grove Village Building Lease Agreement, as amended, with
Edward Buker, Trustee under Trust Agreement dated December 14,
1997; and
iii) Contract for provision of rail seats to N.V.T.C. dated July 8,
1998.
To the extent Simula is not expressly released in writing from the guarantees at
or prior to Closing, Purchaser shall indemnify Seller in the event Purchaser
defaults in its obligations under any Assigned Instrument and recourse against
Simula is made by the third party seeking to enforce the guarantee.
6. Any and all other liabilities and obligations of Seller (whether by
contract or otherwise) are specifically excluded and excepted from the
liabilities and obligations assumed by Purchaser hereunder and shall be
discharged and paid by Seller. Purchaser's assumptions of liabilities
shall be only to the extent disclosed to Purchaser under the Purchase Agreement
and assumed hereunder and
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Purchaser shall be entitled to Seller's duty of indemnification under the
Purchase Agreement in connection with this Assignment and Assumption.
7. Notwithstanding anything to the contrary in this Assignment and
Assumption or in the Purchase Agreement, to the extent that the assignment
hereunder of any of the Assigned Instruments shall require the consent of any
other party which has not been obtained (or in the event that any of the same
shall be non-assignable), neither this Assignment and Assumption nor the
Purchase Agreement nor any action taken pursuant to their respective provisions
shall constitute any assignment or any agreement to assign if such assignment or
attempted assignment would constitute a breach of such Assigned Instruments or
result in the loss or diminution thereof; provided, however, that in each such
case, the parties shall use their best efforts to obtain the consent of such
third party to an assignment to Purchaser and the release of Seller, or a
novation of the Assigned Instrument. If such consent or novation is not
obtained, the parties shall cooperate in any reasonable arrangement designed to
transfer to Purchaser the benefits and obligations of the Assigned Instruments
including, without limitation, enforcement for the account and benefit of
Purchaser, of any and all rights of Seller against any other person with respect
to the Assigned Instruments.
8. This Assignment and Assumption shall be binding upon and shall inure
to the benefit of Purchaser, Seller and their respective successors and assigns.
The purpose hereof is to relieve Seller of certain liabilities and obligations
and to assign certain rights and benefits to Purchaser and not to create third
party beneficiary rights. Therefore, this Assignment and Assumption may be
modified by a writing signed by Seller and Purchaser without the consent of any
third party.
IN WITNESS WHEREOF, Seller and Purchaser have caused this Assignment
and Assumption to be signed by their duly authorized officers as of the date
first above written.
COACH AND CAR ACQUISITION CORP.
By /s/ Scott E. Miller
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Its President
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COACH AND CAR EQUIPMENT CORPORATION
By /s/ Inam Khan
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Its President
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EXHIBIT A
LIABILITIES ASSUMED
Coach & Car Equipment Corp. liabilities at August 30, 1999 are as follows:
Accounts Payable $2,556,500
Accrued Expenses 632,577
Customer Deposits 1,063,000
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$4,252,077
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