This Assumption Agreement (this "Agreement") is entered into by and
between Empire Metals, Inc., an Arizona corporation ("Empire"), and EMCO
Recycling Corp., an Arizona corporation ("EMCO").
A. General Parametrics Corporation ("GPAR"), GPAR Merger, Inc.,
Copperstate Metals, Inc., Empire, EMCO, Gerald Zack, David Zack, Raymond Zack,
Donald Moorehead, George Moorehead and Harold Rubenstein have entered into that
certain Merger Agreement, dated December 1, 1995, as amended by that certain
First Amendment to Merger Agreement dated December ___, 1995, as amended by that
certain Second Amendment to Merger Agreement dated February 16, 1996.
B. Pursuant to the Mager Agreement, GPAR will acquire all of the
issued and outstanding shares of EMCO in a merger whereby GPAR Merger, Inc.
merges into EMCO, and the shareholders of EMCO transfer all their issued and
outstanding shares to GPAR.
C. In connection with the closing of the transactions
contemplated by the Merger Agreement, Empire agrees to assume primary liability
for the payment of certain liabilities for which EMCO may also have liability.
In consideration of the premises, and the mutual warranties, covenants
and agreements contained herein, the parties hereto agree as follows:
1. Assumption. Empire agrees to assume primary liability for the
payment of the Obligations set forth on Exhibit "A" attached hereto, which
obligations are currently reflected as liabilities on EMCO's balance sheet.
2. Payment to Empire. EMCO hereby pays Empire the sum of
$42,273.92 in exchange. for Empire's assumption of the indebtedness set forth
on Exhibit "A" attached hereto.
3. Indemnification. Empire agrees to indemnify and hold harmless
EMCO from and against the liabilities set forth on Exhibit "A" pursuant to that
certain Indemnity Agreement of even date herewith.
4. General Provisions.
a. Notices. AU notices, requests, demands, claims, and
other communications hereunder shall be in writing and shall be delivered by
certified or registered mail (first class postage prepaid), guaranteed
overnight delivery, or facsimile transmission if such transmission is confirmed
by delivery by certified or registered mail (first class postage pre-paid) or
guaranteed overnight delivery, to the following addresses and telecopy numbers
(or to such other addresses or telecopy numbers which such party shall
designate in writing to the other party):
(i) IF TO EMCO TO:
EMCO Recycling Corp.
Attn: George Moorehead
3700 W. Lower Buckeye
Phoenix, Arizona 85009
WITH A COPY TO:
Mr. Gerard Jacobs
General Parametrics Corp.
7600 Augusta Street
River Forest IL 60305
(ii) IF TO EMPIRE:
Empire Metals, Inc.
2010 W. Lower Buckeye Drive
Phoenix, Arizona 85009
WITH A COPY TO:
Rob Kimball, Esq.
Sachs Tierney P.A.
2929 N. Central Avenue Fourteenth Floor
Phoenix, Arizona 85004
5. Entire Agreement. This Agreement, the Merger Agreement and
the Indemnity Agreement executed by the parties on this date contain the entire
understanding of the parties in respect of its subject matter and supersede all
prior agreements and understandings (oral or written) between or among the
parties with respect to such subject matter.
6. Amendment: Waiver. This Agreement may not be modified,
amended, supplemented, canceled or discharged, except by written instrument
executed by all parties. No
failure to exercise, and no delay in exercising, any right, power or privilege
under this Agreement shall operate as a waiver, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude the exercise of
any other right, power or privilege. No waiver of any breach of any provision
shall be deemed to be a waiver of any preceding or succeeding breach of the
same or any other provision, nor shall any waiver be implied from any course of
dealing between the parties. No extension of time for performance of any
obligations or other acts hereunder or under any other agreement shall be
deemed to be an extension of the time for performance of any other obligations
or any other acts. The rights and remedies of the parties under this Agreement
are in addition to all other rights and remedies, at law or equity, that they
may have against each other.
7. Binding Effect: Assignment. The rights and obligations of
this Agreement shall bid and inure to the benefit of the parties and their
respective successors and assigns. Nothing expressed or implied herein shall
be construed to give any other person any legal or equitable rights hereunder.
8. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original but all of which together
shall constitute one and the same instrument.
9. Interpretation. When a reference is made in this Agreement to
an article, section, paragraph, clause, schedule or exhibit, such reflect shall
be deemed to be to this Agreement unless otherwise indicated. The headings
contained herein are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. Whenever the words
"include", "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation." Time shall be of the
essence in this Agreement.
10. Governing Law: Interpretation. This Agreement shall be
construed in accordance with and governed for all purposes by the laws of the
State of Arizona applicable to contracts executed and to be wholly performed
within such state.
11. Arm's Length Negotiations. Each party herein expressly to all
other parties hereto that (a) before executing this Agreement, said party has
hilly informed itself of the terms, contents, conditions and effects of this
Agreement; (b) said party has relied solely and completely upon its own
judgment in executing this Agreement; (c) said party has had the opportunity to
seek and has obtained the advice of counsel before executing this Agreement (d)
said party has acted voluntarily and of its own free will in executing this
Agreement; (e) said party is not acting under duress, whether economic or
physical, in executing this Agreement; and (f) this Agreement is the result of
arm's length negotiations conducted by and among the parties and their
12. Attorneys' Fees. If any action at law or in equity, including
an action for declaratory relief, is brought to enforce or interpret the
provisions of this Agreement, the prevailing party shall be entitled to recover
reasonable attorney's fees and all other costs and expenses of litigation from
the other party, which amounts may be set by the court in the trial
of such action or may be enforced in a separate action brought for that
purpose, and which amounts shall be in addition to any other relief which may
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year written below.
EMPIRE METALS, INC.,
an Arizona corporation
Date: 4-11-96 By: HAROLD RUBENSTEIN
Harold Rubenstein, President
EMCO RECYCLING CORP.,
an Arizona corporation
Date: 4-11-96 By: GEORGE MOOREHEAD
George Moorehead, President
EMPIRE METALS, INC. - Pre-Petition Payables
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ACCOUNTS WITH REMAINING BALANCES:
3T Tanakaya 10,865.00
SECORE & NIEDZIALER 6,894.65
Superior Retreading 12,154.35
INLAND KENWORTH (Mike Kennedy) 7,121.51
PTO SALES & SERVICE 493.41
Sanifill of Arizona (AAZ CRUSHERS) 4,745.00
TOTAL OF OPEN ACCOUNTS 42,273.92