EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
between
BIRCH BRANCH, INC.
as Seller
and
MICHAEL L. SCHUMACHER
as Purchaser
TABLE OF CONTENTS
1. Purchase and Sale of Assets.............................................1
1.1. Purchased Assets................................................1
1.2. Excluded Assets.................................................1
1.3. Purchase Price for Assets: Allocations..........................1
1.4. Payment of Aggregate Price......................................1
2. Liabilities of Birch Branch Relating to the Purchased Assets............1
3. Creditor Matters........................................................2
4. Brokerage Commissions...................................................2
5. Representations and Warranties..........................................2
5.1. Representations and Warranties of Birch Branch..................2
5.1.1. Ownership of Birch Branch...............................2
5.1.2. Due Organization; Name and Address; Good Standing,
Authority of Birch Branch...............................2
5.1.3. Authorization and Validity of Agreements................2
5.1.4. Agreement Not in Conflict with Other Instruments;
Required Approvals Obtained.............................2
5.1.5. Disclaimer of Fraudulent Intent.........................3
5.2. Representations and Warranties of the Purchaser.................3
5.2.1. Due Organization; Good Standing; Power..................3
5.2.2. Authorization and Validity of Documents.................3
5.2.3. Accepting Purchased Assets "as is" with No Warranties...3
6. Closing.................................................................4
6.1. Time, Date and Place............................................4
6.2. Birch Branch's Conditions to Close..............................4
6.3. Purchaser's Conditions to Close.................................4
6.4. Actions to Be Taken at the Closing..............................4
6.5. Contemporaneous Transfer........................................5
7. Indemnification by Purchaser to Birch Branch............................5
7.1. Indemnification by the Purchaser................................5
7.2. Survival of Obligation to Indemnify.............................5
7.3. Notice and Procedure............................................5
8. Expenses of Transactions................................................6
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9. Miscellaneous...........................................................6
9.1. Survival of Representations, Warranties and Agreements..........6
9.2. Notices.........................................................6
9.3. Entire Agreement................................................7
9.4. Assignability...................................................7
9.5. Binding Effect; Benefit.........................................7
9.6. Severability....................................................7
9.7. Amendment; Waiver...............................................7
9.8. Section Headings................................................7
9.9. Counterparts and Facsimile Signatures...........................7
9.10. Applicable Law; Jurisdiction and Venue; Service of Process......8
9.11. Legal Expenses..................................................8
9.12. Remedies........................................................8
9.13. Further Assurances..............................................8
9.14. Use of Genders..................................................8
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made and entered into
and effective as of December 6, 2006, by and among BIRCH BRANCH, INC., a
Colorado corporation ("Birch Branch") and MICHAEL L. SCHUMACHER AND/OR ASSIGNS
("Purchaser").
EXPLANATORY STATEMENT
A. Birch Branch owns five lots in Nebraska (the "Business") and has
constructed a studio and bed and breakfast on one of the lots with all the real
property subject to a first lien in the original principal amount of $430,000
payable to Michael L. Schumacher, the Purchaser, pursuant to this Agreement.
B. The Purchaser owns or controls shares of no par value common stock of
Birch Branch and is an officer and director of Birch Branch.
C. Purchaser desires to purchase and Birch Branch desires to sell and
transfer to Purchaser, substantially all of the assets of Birch Branch used in
connection with the Business on the terms and conditions stated herein.
NOW THEREFORE, for and in consideration of the Explanatory Statement that
shall be deemed a substantive part of this Agreement, and the mutual covenants,
promises, agreements, representations and warranties contained herein, and other
good and valuable consideration the receipt and sufficiency of which is hereby
acknowledged by the parties, the parties hereto agree, represent and warrant as
follows:
1. Purchase and Sale of Assets.
1.1. Purchased Assets. Except as and to the extent otherwise provided
in Section 1.2 below, Purchaser agrees to purchase from Birch Branch, and Birch
Branch agrees to sell, transfer and assign to Purchaser, the real property set
forth in attached Exhibit A that is made a part hereof (the "Purchased Assets").
1.2. Excluded Assets. All other assets owned by Birch Branch other
than the Business shall not be sold, but shall be retained by Birch Branch (the
"Excluded Assets"). Notwithstanding anything to the contrary set forth in
Section 1.1, the Purchased Assets shall not include any of the Excluded Assets.
1.3. Purchase Price for Assets: Allocations. The purchase price for
the Purchased Assets shall be the transfer to Birch Branch of 12,500 shares of
no par value common stock of Birch Branch that is owned by Purchaser together
with the cancellation of the Balloon Note dated October 1, 2005 in the original
principal amount of $430,000 ("Note") secured by a Deed of Trust encumbering the
Purchased Assets and a release by the Purchaser of any and all other liability
owed by Birch Branch to the Purchaser (the "Purchase Price").
1.4. Payment of Aggregate Price. On the terms and subject to the
conditions of this Agreement, at Closing the Purchaser shall pay the Purchase
Price to Birch Branch by stock assignment, cancellation of the Note and
executing a release releasing Birch Branch from any and all liability to
Purchaser for any monies loaned by Purchaser to Birch Branch.
2. Liabilities of Birch Branch Relating to the Purchased Assets. Purchaser
assumes and shall be solely liable and responsible for all debts, obligations,
duties, and liabilities of Birch Branch relating in any manner to the Purchased
Assets incurred prior to Closing and shall indemnify and hold Birch Branch
harmless therefrom.
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3. Creditor Matters. The transactions contemplated by this Agreement are
intended by the parties to be a contemporaneous exchange between Birch Branch
and the Purchaser and will be accomplished at Closing. The transactions
contemplated by this Agreement represent a regularly conducted, noncollusive
sale, and have been negotiated by the parties in an arm's length manner with due
regard for the respective obligations of the parties and value of the assets
transferred.
4. Brokerage Commissions. Each party hereto represents to the other party
that it, he or she, as applicable, has not incurred any obligation or liability,
contingent or otherwise, for brokerage fees, finder's fees, agent's commissions,
or the like in connection with this Agreement or the transactions reflected
hereby.
5. Representations and Warranties.
5.1. Representations and Warranties of Birch Branch. Birch Branch
represents and warrants to the Purchaser as of the date hereof and as of the
Closing on the Closing Date that:
5.1.1. Ownership of Birch Branch. Birch Branch has the power and
authority to sell, assign, transfer and deliver the Purchased Assets to the
Purchaser in accordance with the terms of this Agreement, to consummate the
transactions contemplated hereby and to enter into the Agreement.
5.1.2. Due Organization; Name and Address; Good Standing, Authority of
Birch Branch. Birch Branch is a corporation duly organized, validly existing and
in good standing under the laws of the State of Colorado. Birch Branch has full
right, power and authority to own, lease and operate its properties and assets,
and to carry on its Business. Birch Branch is duly licensed, qualified and
authorized to do business in each jurisdiction in which the properties and
assets owned by it or the nature of the business conducted by it make such
licensing, qualification and authorization legally necessary. Birch Branch is
not in breach or violation of, and the execution, delivery and performance of
this Agreement will not result in a breach or violation of, any of the
provisions of Birch Branch's Articles of Incorporation, Bylaws, shareholder
agreements or any other corporation documents or agreements, amended to the date
of this Agreement ("Birch Branch's Corporate Documents").
5.1.3. Authorization and Validity of Agreements. Birch Branch has the
full right, power and authority to execute, acknowledge and deliver this
Agreement and to perform the transactions contemplated by this Agreement. The
execution, acknowledgment and delivery of this Agreement by Birch Branch and the
performance by Birch Branch of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action. This Agreement
has been duly executed, acknowledged and delivered by Birch Branch and is the
legal, valid and binding obligation of Birch Branch, enforceable against Birch
Branch in accordance with its terms, except in each case as such enforceability
may be limited by general principles of equity, bankruptcy, insolvency,
moratorium and similar laws relating to creditors rights generally.
5.1.4. Agreement Not in Conflict with Other Instruments; Required
Approvals Obtained. The execution, acknowledgment, delivery, and performance of
this Agreement, and the consummation of the transactions contemplated by this
Agreement will not (a) violate or require any consent, approval, or filing
under, (i) any common law, law, statute, ordinance, rule or regulation
(collectively referred to throughout this Agreement as "Laws") of any federal,
state or local government (collectively referred to throughout this Agreement as
"Governments") or any agency, bureau, commission, instrumentality or judicial
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body of any Governments (collectively referred to throughout this Agreement as
"Governmental Agencies"), or (ii) any judgment, injunction, order, writ or
decree of any court, arbitrator, Government or Governmental Agency by which
Birch Branch (b) conflict with, require any consent, approval, or filing under,
result in the breach or termination of any provision of, constitute a default
under, or result in the creation of any claim, security interest, lien, charge,
or encumbrance upon any of the Purchased Assets pursuant to, (i) Birch Branch's
Corporate Documents, (ii) any indenture, mortgage, deed of trust, license,
permit, approval, consent, franchise, lease, contract, or other instrument,
document or agreement to which Birch Branch is a party or by which Birch Branch
or any of the Purchased Assets is bound, or (iii) any judgment, injunction,
order, writ or decree of any court, arbitrator, Government or Governmental
Agency by which Birch Branch or any of the Purchased Assets is bound; and all
permits, licenses and authorizations of any Government or Governmental Agency
required to be obtained prior to the Closing, shall have been obtained and shall
be in full force and effect as of the Closing Date.
5.1.5. Disclaimer of Fraudulent Intent. The transactions described in
this Agreement have been undertaken by Birch Branch in good faith, considering
their obligations to any person or entity to whom Birch Branch owes a right to
payment, whether or not the right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, claims are called
"Creditors" under this paragraph), and have undertaken these transactions
without any intent to hinder, delay or defraud any such Creditors, and either
have disclosed in the ordinary course of business or will undertake to disclose
to all such Creditors the existence of this transaction, and have not and will
not conceal this transaction or the proceeds of this transaction from any such
Creditors. Birch Branch further represents and warrants that: (i) it will not
retain possession or control of any of the property transferred under this
Agreement following the Closing; (ii) Birch Branch has not been sued or
threatened with suit by any Creditor prior to the execution of this Agreement;
(iii) Birch Branch has not removed or concealed any assets from any Creditors;
(iv) Birch Branch has not incurred any individual or aggregate debt that is
significantly greater than the normal and customary debts of Birch Branch in the
ordinary course of business; and (v) Birch Branch at Closing believes in good
faith that Birch Branch will receive consideration reasonably equivalent to the
value of the assets transferred under this Agreement.
5.2. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to Birch Branch, as of the date hereof and as of the
Closing on the Closing Date that:
5.2.1. Due Organization; Good Standing; Power. The Purchaser has full
right, power and authority to enter into this Agreement and to perform its
obligations hereunder and thereunder.
5.2.2. Authorization and Validity of Documents. The execution,
delivery and performance by the Purchaser of this Agreement and the transactions
contemplated hereby and thereby, have been duly and validly authorized by the
Purchaser. This Agreement has been duly executed, acknowledged and delivered by
the Purchaser and is a legal, valid and binding obligation of the Purchaser and
when executed and delivered, will be legal, valid and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with its terms except
as such enforceability may be limited by general principles of equity,
bankruptcy, insolvency, moratorium and similar laws relating to creditors'
rights generally.
5.2.3. Accepting Purchased Assets "as is" with No Warranties.
Purchaser acknowledges and agrees that he is accepting the Purchased Assets in
an "as is" condition with no warranties as to title or condition and will accept
a "Quit Claim" Deed for the transfer of such property. It is acknowledged by
Purchaser that Purchaser has requested and has received all due diligence
information Purchaser deemed necessary regarding the Purchased Assets.
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6. Closing.
6.1. Time, Date and Place. The closing of the purchase and sale of the
Purchased Assets and the other transactions contemplated by this Agreement
(referred to throughout this Agreement as the "Closing") shall take place on
December 6, 2006 at a time and place mutually agreeable to the parties. The
time, place and date of the Closing are referred to throughout this Agreement as
the "Closing Date." The Purchaser shall be solely responsible for and pay any
Closing costs associated with the transactions contemplated herein. Further, the
Purchaser shall be responsible for all legal fees and costs relating to the
preparation and review of this Agreement and the transactions contemplated by
this Agreement.
6.2. Birch Branch's Conditions to Close. Birch Branch's obligation to
close the transactions contemplated hereby at the Closing shall be subject to
the complete satisfaction and fulfillment of all of the following conditions
precedent, any or all of which may be waived in whole or in part by Birch Branch
(but no such waiver of any such condition precedent shall be or constitute a
waiver of any covenant, promise, agreement, representation or warranty made by
the Purchaser in this Agreement):
6.2.1. All representations and warranties made by the Purchaser
in this Agreement shall be complete and accurate at and as of the Closing on the
Closing Date.
6.2.2. All covenants, promises and agreements made by the
Purchaser in this Agreement and all other actions required to be performed or
complied with by the Purchaser under this Agreement prior to or at the Closing
shall have been fully performed or complied with by the Purchaser.
6.3. Purchaser's Conditions to Close. The Purchaser's obligation to
close the transactions contemplated hereby at the Closing shall be subject to
the complete satisfaction and fulfillment of all of the following conditions
precedent, any or all of which may be waived in whole or in part by the
Purchaser (but no such waiver of any such condition precedent shall be or
constitute a waiver of any covenant, promise, agreement, representation or
warranty made by Birch Branch in this Agreement):
6.3.1. All representations and warranties made by Birch Branch in
this Agreement shall be complete and accurate at and as of the Closing on the
Closing Date.
6.3.2. All covenants, promises and agreements made by Birch
Branch in this Agreement and all other actions required to be performed or
complied with by Birch Branch under this Agreement prior to or at the Closing
shall have been fully performed or complied with by Birch Branch.
6.3.3. If any condition or contingency applicable to Purchaser is
not satisfied at or before Closing or if Purchaser shall otherwise exercise any
right it may have to terminate this Agreement, then this Agreement shall
terminate, each party hereto shall be released and relieved from any further
duty, liability or obligation hereunder.
6.4. Actions to Be Taken at the Closing. At the Closing, the following
actions, among others, shall occur:
6.4.1. Purchaser shall have endorsed and delivered to Birch
Branch a stock certificate or a stock power transferring 12,500 shares of Birch
Branch common stock to Birch Branch for cancellation.
6.4.2. Purchaser shall deliver the Note marked "cancelled, paid
in full."
6.4.3. Purchaser shall deliver a Release to Birch Branch
releasing Birch Branch from any and all obligations and debts to Purchaser.
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6.4.4. Birch Branch shall execute and deliver to the Purchaser a
quit claim deed transferring and conveying the Purchased Assets to the
Purchaser.
6.5. Contemporaneous Transfer. All transfers, assignments, conveyances
and transactions under this Agreement shall be effected contemporaneously and
shall be a contemporaneous exchange for present value between Birch Branch and
the Purchaser.
7. Indemnification by Purchaser to Birch Branch.
7.1. Indemnification by the Purchaser. The Purchaser hereby agrees to
indemnify and hold harmless Birch Branch and its officers, directors and
shareholders, against and in respect of:
7.1.1. Any loss, claim, liability, obligation or damage suffered
or incurred by Birch Branch resulting from or arising in connection with any
misrepresentation, breach of warranty, or non-fulfillment of any covenant or
agreement on the part of Birch Branch or the Purchaser contained in this
Agreement;
7.1.2. Any liability or claim which may be asserted against Birch
Branch arising out of, relating to, or in connection with Birch Branch's
ownership of it's the Purchased Assets prior to the Closing, or Birch Branch's
business or other activities prior to the Closing;
7.1.3. Any taxes or governmental impositions, arising out of or
relating to the transaction contemplated by this Agreement, including without
limitation any state or federal income taxes realized as a result of the
transfer of the Purchased Assets to the Purchaser; and
7.1.4. All actions, suits, investigations, proceedings, demands,
assessments, judgments, reasonable attorneys' fees, costs and expenses incident
to the foregoing, including, but not limited to, any audit or investigation by
any governmental entity.
7.2. Survival of Obligation to Indemnify. The indemnity obligations of
this Section 7 shall survive the Closing and the payment of the consideration
therefor for a period of one (1) year from the Closing (or in the case of
Section 7.1.2, the expiration of the applicable statute of limitation within
which claims may be brought against Birch Branch for such activities, or in the
case of Section 7.1.3., three (3) years from the date of filing of any required
return), and shall continue thereafter with respect to: (a) matters which the
party seeking indemnity hereunder shall have given the other party written
notice of as provided herein prior to one (1) year from the Closing; and (b) any
claims, actions, suits, investigations or proceedings based on fraud or willful
misconduct, willful misrepresentation or willful breach of warranty.
7.3. Notice and Procedure. Any party claiming indemnity hereunder
(hereinafter referred to as the "Indemnified Party") shall give the party
against whom indemnity is sought (hereinafter referred to as the "Indemnifying
Party") prompt written notice after obtaining knowledge of any claim or the
existence of facts as to which recovery may be sought against it in respect of
which the Indemnifying Party may be liable because of the indemnity provisions
set forth in this Section 7. If such claim for indemnity arises in connection
with a legal action instituted by a third party (hereinafter a "Third Party
Claim"), the Indemnified Party hereby agrees that, within ten (10) Business Days
after it is served with notice of the assertion of any Third Party Claim for
which it may seek indemnity hereunder, the Indemnified Party will notify the
Indemnifying Party in writing of such Third Party Claim.
7.3.1. The Indemnifying Party shall, within ten (10) Business
Days after the date that the Indemnified Party gives notice of a claim (whether
a Third Party Claim or otherwise) as provided above, notify the Indemnified
Party whether it accepts or contests its obligation of indemnity hereunder as
claimed by the Indemnified Party.
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7.3.2. If the claim for indemnity arises in connection with a
Third Party Claim and the Indemnifying Party accepts its indemnity obligation
hereunder, the Indemnifying Party shall have the right, after conceding in
writing its obligation of indemnity hereunder, to conduct the defense of such
action at its sole expense through counsel reasonably acceptable to the
Indemnified Party. The Indemnified Party shall cooperate in such defense as
reasonably necessary to enable the Indemnifying Party to conduct its defense,
including providing the Indemnifying Party with reasonable access to such
records as may be relevant to its defense. The Indemnifying Party shall be
entitled to settle any such Third Party Claim without the prior written consent
of the Indemnified Party provided that the Indemnifying Party provides the
Indemnified Party with reasonable assurances that the Indemnified Party will be
fully indemnified by the Indemnifying Party in connection with any such Third
Party Claim. The Indemnified Party shall be entitled to retain its own counsel
at its own expense in connection with any Third Party Claim that the
Indemnifying Party has elected to defend. If the Indemnifying Party accepts its
indemnity obligations hereunder in connection with a Third Party Claim but
elects not to conduct the defense thereof, the Indemnified Party may defend
and/or settle such Third Party Claim and shall be entitled to be indemnified for
the full amount of such claim and all costs and expenses, including attorneys'
fees, incurred in connection therewith pursuant to this Section 7.3.2.
7.3.3. If the claim for indemnity arises in connection with a
Third Party Claim and the Indemnifying Party contests or does not accept its
indemnity obligation hereunder, the Indemnified Party shall have the right to
defend and/or settle such Third Party Claim and thereafter seek indemnity from
the other party pursuant to this Section 7.3.3, however, that the Indemnified
Party shall not settle any such claim without the prior written consent of the
Indemnifying Party, which consent shall not be unreasonably withheld.
7.3.4. If the claim for indemnity arises other than in connection
with a Third Party Claim and the Indemnifying Party accepts its indemnity
obligation hereunder, the Indemnifying Party shall, upon the request of the
Indemnified Party, pay the full amount of such claim to the Indemnified Party or
to the third party asserting such claim as directed by the Indemnified Party. If
the claim for indemnity arises other than in connection with a Third Party Claim
and the Indemnifying Party contests its indemnity obligation hereunder, the
Indemnified Party shall have the right to defend, settle or take any other
action with respect to such claim and thereafter seek indemnity pursuant to this
Section 7.3.4; provided, however, that the Indemnified Party shall not settle
any such claim without the prior written consent of the Indemnifying Party,
which consent shall not be unreasonably withheld.
8. Expenses of Transactions. All sales, transfer and use taxes incurred in
connection with the sale, assignment, transfer and delivery of the Purchased
Assets shall be paid by the Purchaser.
9. Miscellaneous.
9.1. Survival of Representations, Warranties and Agreements. All of
the representations, warranties, covenants, promises and agreements of the
parties contained in this Agreement (or in any document delivered or to be
delivered pursuant to this Agreement or at or in connection with the Closing)
shall survive the execution, acknowledgment and delivery of this Agreement and
the consummation of the transactions contemplated hereby.
9.2. Notices. All notices, requests, demands, consents, and other
communications which are required or may be given under this Agreement
(collectively, the "Notices") shall be in writing and shall be given either (a)
by personal delivery against a receipted copy, or (b) by certified or registered
United States mail, return receipt requested, postage prepaid, to the following
addresses:
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(i) If to Birch Branch, to:
Birch Branch, Inc.
2525 Fifteenth Street, Suite 3H
Denver, Colorado 80211
Attn: Michael L. Schumacher, President
(ii) If to the Purchaser, to:
Michael L. Schumacher
2525 Fifteenth Street, Suite 3H
Denver, Colorado 80211
or to such other address of which written notice in accordance with this Section
9.2 shall have been provided by such party. Notices may only be given in the
manner hereinabove described in this Section 9.2 and shall be deemed received
when given in such manner.
9.3. Entire Agreement. This Agreement (including the Schedules and
Exhibits hereto) constitutes the full, entire and integrated agreement between
the parties hereto with respect to the subject matter hereof, and supercedes all
prior negotiations, correspondence, understandings and agreements among the
parties hereto respecting the subject matter hereof.
9.4. Assignability. This Agreement shall not be assignable by any
party hereto without the prior written consent of the other parties hereto;
provided, however, the Purchaser may assign this Agreement to any existing
entity owned or controlled by the Purchaser except that upon such assignment,
the Purchaser, Michael L. Schumacher shall no be released from any
representation, indemnification, duty, liability or obligation hereunder.
9.5. Binding Effect; Benefit. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective heirs,
personal and legal representatives, guardians, successors and permitted assigns.
Nothing in this Agreement, express or implied, is intended to confer upon any
other person any rights, remedies, obligations, or liabilities.
9.6. Severability. Any provision of this Agreement which is held by a
court of competent jurisdiction to be prohibited or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability, without
invalidating or rendering unenforceable the remaining provisions of this
Agreement.
9.7. Amendment; Waiver. No provision of this Agreement may be amended,
waived or otherwise modified without the prior written consent of all of the
parties hereto. No action taken pursuant to this Agreement, including any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representation,
warranty, covenant or agreement herein contained. The waiver by any party hereto
of a breach of any provision or condition contained in this Agreement shall not
operate or be construed as a waiver of any subsequent breach or of any other
conditions hereof.
9.8. Section Headings. The section and other headings contained in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.
9.9. Counterparts and Facsimile Signatures. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original and all of which together shall be deemed to be one and the same
instrument. A facsimile signature shall be deemed an original signature for all
purposes.
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9.10. Applicable Law; Jurisdiction and Venue; Service of Process. This
Agreement was made in the State of Colorado, and shall be governed by,
construed, interpreted and enforced in exclusive accordance with the laws of the
State of Colorado.
9.11. Legal Expenses. If any legal action is commenced to enforce any
provision of this Agreement, the prevailing party in such legal action shall be
entitled to receive, in addition to any damages or other legal remedy, his, her
or its legal costs including but not limited to legal fees, court costs and
expert fees, incurred in such action.
9.12. Remedies. The parties hereto acknowledge that in the event of a
breach of this Agreement, any claim for monetary damages hereunder may not
constitute an adequate remedy, and that it may therefore be necessary for the
protection of the parties and to carry out the terms of this Agreement to apply
for the specific performance of the provisions hereof. It is accordingly hereby
agreed by all parties that no objection to the form of the action or the relief
prayed for in any proceeding for specific performance of this Agreement shall be
raised by any party, in order that such relief may be expeditiously obtained by
an aggrieved party. All parties may proceed to protect and enforce their rights
hereunder by a suit in equity, transaction at law or other appropriate
proceeding, whether for specific performance or for an injunction against a
violation of the terms hereof or in aid of the exercise of any right, power or
remedy granted hereunder or by law, equity or statute or otherwise. No course of
dealing and no delay on the part of any party hereto in exercising any right,
power or remedy shall operate as a waiver thereof or otherwise prejudice its
rights, powers or remedies, and no right, power or remedy conferred hereby shall
be exclusive of any other right, power or remedy referred to herein or now or
hereafter available by law, in equity, by statute or otherwise.
9.13. Further Assurances. Birch Branch agrees to execute, acknowledge
and deliver, after the date hereof, without additional consideration, such
further assurances, instruments and documents, and to take such further actions,
as the Purchaser may reasonably request in order to fulfill the intent of this
Agreement and the transactions contemplated hereby.
9.14. Use of Genders. Whenever used in this Agreement, the singular
shall include the plural and vice versa, and the use of any gender shall include
all genders and the neuter.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Asset Purchase Agreement on the date first above written.
PURCHASER: BIRCH BRANCH:
Birch Branch, Inc.
/s/ Michael L. Schumacher By: /s/ Michael L. Schumacher
- --------------------------------- --------------------------------
Michael L. Schumacher Michael L. Schumacher, President
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