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CCOM Group, Inc. – ‘8-K’ for 2/15/01 – EX-10.III

On: Friday, 2/16/01, at 12:16pm ET · For: 2/15/01 · Accession #: 909012-1-115 · File #: 1-06663

  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 2/16/01  CCOM Group, Inc.                  8-K:2,7     2/15/01    5:67K                                    Toledo Graphics Group/FA

Current Report — Form 8-K
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 8-K         Colonial Commercial Corp.                              4     14K 
 2: EX-10.A.I   Rearrifrmation Agreement                               4     17K 
 3: EX-10.A.II  Reaffirmation Agreement                                4     14K 
 5: EX-10.A.IV  Bill of Sale                                           1      5K 
 4: EX-10.III   Foreclosure Agreement                                 18     60K

EX-10.III — Foreclosure Agreement

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                                                                 Exhibit 10(iii)

 FORECLOSURE AGREEMENT

       This Foreclosure Agreement (the "Agreement"), dated as of the 1st day
of February, 2001, is entered into by and among Independent Steel Products, LLC,
a New York limited liability company ("Buyer"), LaSalle Bank National           
Association, a national banking association ("Bank"), Atlantic Hardware & Supply
Corporation, a New York corporation ("Atlantic Hardware"), Universal Supply     
Group, Inc., a New York Corporation, formerly known as Colonial Commercial Sub  
Corp. ("Universal Supply"), and Well-Bilt Steel Products, Inc., a New Jersey    
corporation ("Well-Bilt Steel" or "Borrower").                                  

RECITALS

     I. Pursuant to that certain Loan and Security Agreement dated as of
June 24, 1999 by and between Bank and Atlantic Hardware, as amended by that     
certain First Amendment dated as of September 21, 1999 (the "First Atlantic     
Hardware Amendment"), as further amended by that certain Second Amendment dated 
as of September 29, 1999 (the "Second Atlantic Hardware Amendment"), as further 
amended by that certain Third Amendment dated as of November 1, 1999 (the "Third
Atlantic Hardware Amendment"), as further amended by that certain Fourth        
Amendment dated as of December 2, 1999 (the "Fourth Atlantic Hardware           
Amendment"), as further amended by that certain Fifth Amendment dated as of June
1, 2000 (the "Fifth Atlantic Hardware Amendment") and as further amended by that
certain Sixth Amendment dated as of July 14, 2000 (the "Sixth Atlantic Hardware 
Amendment") (the Loan and Security Agreement as so amended and as otherwise     
previously amended, restated, supplemented or otherwise modified from time to   
time, the "Atlantic Hardware Security Agreement"), and pursuant to certain other
documents, instruments and agreements executed pursuant thereto or in connection
therewith (collectively, the "Atlantic Hardware Related Agreements" and together
with the Atlantic Hardware Agreement, the "Atlantic Hardware Documents"), Bank  
has made loans to, and made other financial accommodations to or for the benefit
of, Atlantic Hardware (all such loans and other financial accommodations being  
herein referred to collectively as the "Atlantic Hardware Loans"). The Atlantic 
Hardware Loans and all other obligations of Atlantic Hardware to Bank, howsoever
created, arising or evidenced (collectively, the "Atlantic Hardware             
Obligations"), are secured by substantially all of Atlantic Hardware's assets,  
consisting of both real and personal property. Further, payment of the Atlantic 
Hardware Obligations is guaranteed by the third party guaranty dated June 24,   
1999 of Universal Supply, by the third party guaranty dated June 24, 1999 of    
Colonial Commercial Corp., a New York corporation ("Colonial"), and by the third
party guaranty dated June 1, 2000 of Well-Bilt Steel (Universal Supply, Colonial
and Well-Bilt Steel, in such capacity, sometimes hereinafter are referred to    
individually as an "Atlantic Hardware Guarantor" and collectively as "Atlantic  
Hardware Guarantors").                                                          

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      II. Pursuant to that certain Loan and Security Agreement dated as of
June 24, 1999 by and between Bank and Universal Supply, as amended by that      
certain First Amendment dated as of September 20, 1999 (the "First Universal    
Supply Amendment"), as further amended by that certain Second Amendment dated as
of September 23, 1999 (the "Second Universal Supply Amendment"), as further     
amended by that certain Third Amendment dated as of October 7, 1999 (the "Third 
Universal Supply Amendment"), as further amended by that certain Fourth         
Amendment dated as of December 2, 1999 (the "Fourth Universal Supply            
Amendment"), as further amended by that certain Fifth Amendment dated as of June
1, 2000 (the "Fifth Universal Supply Amendment") and as further amended by that 
certain Sixth Amendment dated as of July 14, 2000 (the "Sixth Universal Supply  
Amendment") (the Loan and Security Agreement as so amended and as otherwise     
previously amended, restated, supplemented or otherwise modified from time to   
time, the " Universal Supply Security Agreement"), and pursuant to certain other
documents, instruments and agreements executed pursuant thereto or in connection
therewith (collectively, the "Universal Supply Related Agreements" and together 
with the Universal Supply Agreement, the "Universal Supply Documents"), Bank has
made loans to, and made other financial accommodations to or for the benefit of,
Universal Supply (all such loans and other financial accommodations being herein
referred to collectively as the "Universal Supply Loans"). The Universal Supply 
Loans and all other obligations of Universal Supply to Bank, howsoever created, 
arising or evidenced (collectively, the "Universal Supply Obligations"), are    
secured by substantially all of Universal Supply's assets, consisting of both   
real and personal property. Further, payment of the Universal Supply Obligations
is guaranteed by the third party guaranty dated June 24, 1999 of Atlantic       
Hardware, by the third party guaranty dated June 24, 1999 of Colonial and by the
third party guaranty dated June 1, 2000 of Well-Bilt Steel (Atlantic Hardware,  
Colonial and Well-Bilt Steel, in such capacity, sometimes hereinafter are       
referred to individually as a "Universal Supply Guarantor" and collectively as  
"Universal Supply Guarantors").                                                 

       III. Pursuant to that certain Loan and Security Agreement dated as of
June 1, 2000 by and between Bank and Well-Bilt Steel, as amended by that certain
First Amendment dated as of July 14, 2000 (the "First Well-Bilt Steel           
Amendment") (the Loan and Security Agreement as so amended and as otherwise     
previously amended, restated, supplemented or otherwise modified from time to   
time, the "Well-Bilt Steel Security Agreement"), and pursuant to certain other  
documents, instruments and agreements executed pursuant thereto or in connection
therewith (collectively, the "Well-Bilt Steel Related Agreements" and together  
with the Well-Bilt Steel Agreement, the "Well-Bilt Steel Documents"), Bank has  
made loans to, and made other financial accommodations to or for the benefit of,
Well-Bilt Steel (all such loans and other financial accommodations being herein 
referred to collectively as the "Well-Bilt Steel Loans"). The Well-Bilt Steel   
Loans and all other obligations of Well-Bilt Steel to Bank, howsoever created,  
arising or evidenced (collectively, the "Well-Bilt Steel Obligations"), are     
secured by substantially all of Well-Bilt Steel's assets.                       

     IV. Bank and Borrower acknowledge that, as a result of a continuing
default by Borrower in repayment and performance of the Well-Bilt Steel         
Obligations and other liabilities under the Well-Bilt Steel Documents, Bank has 

EX-10.III 3rd Page of 18 TOC 1st Previous Next ↓Bottom Just 3rd
the right under Section 9-504 of the Illinois Uniform Commercial Code (the      
"UCC") to sell and transfer to any person or entity for value in a private sale 
all of Borrower's right, title and interest in and to any or all of the assets  
subject to Bank's security interest (such assets are collectively referred to   
herein as the "Encumbered Assets").                                             

       V. Borrower is willing to surrender possession to Bank solely for the
purpose of effecting such a private sale, and Buyer desires to purchase, certain
personal property assets of Borrower, which personal property includes certain  
tangible assets and intangible assets, the tangible assets of which are located 
in one or more states, including New York, on the terms and subject to the      
conditions set forth herein.                                                    

     VI. Bank desires to grant, sell, transfer and deliver to Buyer, and
Buyer desires to acquire from Bank for value in a sale pursuant to the UCC and  
on the terms and conditions hereinafter set forth, all of Borrower's and Bank's 
right, title and interest in the Subject Assets (as hereinafter defined).       

AGREEMENTS

       NOW THEREFORE, in consideration of the mutual promises and agreements
set forth herein, Buyer, Bank, and Borrower agree as follows:                   

         1. Incorporation of Recitals. The Recitals set forth above are true and
correct, and are incorporated into and form an integral part of the agreement   
between the parties contained in this Agreement; provided, however, that Buyer  
makes no representations with respect to the Recitals contained in I through IV 
above.                                                                          

        2. Purchase and Sale. Subject to the terms and conditions set forth in
this Agreement, in consideration of the Purchase Price (as hereinafter defined),
at the Closing referred to in Section 5 hereof, pursuant to Section 9-504 of the
UCC and other applicable law, Bank shall sell, assign, transfer and deliver to  
Buyer, and Buyer shall purchase, acquire and take assignment and delivery of,   
all of Borrower's rights, title and interest in and to all of the assets more   
particularly described on Schedule 2 attached hereto (all of which assets are   
hereinafter referred to collectively as the "Subject Assets"), whereupon,       
pursuant to applicable law, Bank's lien and security interest, and all liens and
security interests junior and/or subordinated thereto, will be discharged.      

               2.1 Excluded Assets. Notwithstanding the foregoing, Bank is
not selling and Buyer is not purchasing any of those assets more particularly   
described on Schedule 2.1 hereof (such assets being referred to hereinafter as  
the "Excluded Assets"). Buyer may elect to exclude any of the other Subject     
Assets from the sale, but such an exclusion shall not result in any reduction of
the Purchase Price (as hereinafter defined).                                    

                  2.2 Compliance with Section 9-504. It is the express intent of
the parties hereto that the sale of the Subject Assets contemplated hereby be   
consummated pursuant to Section 9-504 of the UCC. Accordingly, Bank has         
conducted searches of the records in the locations listed in Part I of Schedule 
2.2, which searches have revealed the entities listed on Part II of Schedule    

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2.2. To the extent not waived in writing to the sole satisfaction of Bank, Bank 
has sent or will send notices of the foreclosure sale contemplated hereby in    
advance of such sale to the parties listed in Part III of Schedule 2.2 and to   
any other party from whom Bank has received (before sending its notices to      
Borrower) written notice of a claim of an interest in the Subject Assets whose  
interest might be adversely affected hereby. Copies of such notices may later be
appended to Schedule 2.2 and made a part thereof.                               

             2.3 Assumption of Obligations or Liabilities. Buyer shall
assume no liabilities or accrued liabilities of Borrower except that Buyer shall
assume those liabilities specifically set forth on Schedule 2.3 hereto (the     
"Assumed Liabilities"). Bank shall not assume, nor shall Bank be deemed to have 
assumed, any liability or obligation of Borrower whatsoever.                    

                  2.4 Sale As Is; Where Is. Bank specifically disclaims (and the
parties hereto expressly agree that Bank makes and gives no covenant,           
undertaking, representation or warranty, express or implied, in connection with 
this Agreement, the Subject Assets or any other matter relating hereto or       
thereto) as to the following matters:                                           

               (a) Non-infringement of any of the trademarks or tradenames
owned by Borrower;                                            

               (b) The existence on the Closing Date of any specific items
        constituting the Subject Assets or the quantity or quality thereof; or

   (c) The condition, quality, suitability, value,
   merchantability or fitness for a particular purpose of any of the
     Subject Assets or of Borrower or any aspect of Borrower's financial
condition, businesses, prospects, or operations.              

      BUYER ACKNOWLEDGES AND AGREES THAT EXCEPT AS, AND ONLY TO THE EXTENT
SET FORTH HEREIN: (A) THE SALE OF SUBJECT ASSETS HEREUNDER IS: WITHOUT RECOURSE 
TO BANK; ON AN "AS IS, WHERE IS" BASIS; WITHOUT ANY REPRESENTATIONS OR          
WARRANTIES AS TO ITEMS, CONDITION, QUANTITY OR ANY OTHER MATTERS WHATSOEVER; (B)
BANK IS SELLING TO BUYER ALL ACCOUNTS RECEIVABLE WITHOUT RECOURSE TO BANK WITH  
RESPECT TO THE CREDITWORTHINESS OF ANY OBLIGOR WITH RESPECT TO SUCH ACCOUNTS    
RECEIVABLE; BANK MAKES NO REPRESENTATION AS TO THE VALUE, IF ANY, OF THE SUBJECT
ASSETS BEING TRANSFERRED HEREBY; AND BANK MAKES NO REPRESENTATION OR WARRANTY   
CONCERNING THE POSSIBLE INFRINGEMENT OF ANY TRADEMARKS, TRADENAME OR PATENT     
ARISING OUT OF THE USE BY BUYER OF ANY OF THE SUBJECT ASSETS; (C) BANK MAKES NO 
REPRESENTATIONS OR WARRANTIES THAT ALL OR A PORTION OF THE SUBJECT ASSETS ARE   
MERCHANTABLE (IN THE SENSE OF AN IMPLIED WARRANTY OF MERCHANTABILITY UNDER THE  
UCC) OR FIT FOR A PARTICULAR PURPOSE; AND (D) THE SOLE REPRESENTATIONS AND      
WARRANTIES OF BANK REGARDING THE SUBJECT ASSETS ARE THOSE SPECIFICALLY PROVIDED 
IN SECTIONS 9 AND 10 OF THIS AGREEMENT.                                         

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3.       Purchase Price; Payment of Consideration.            
----------------------------------------    

                3.1 Consideration. For purchase of the Subject Assets, Buyer
shall (i) issue to the Bank a Note and Security Agreement in the principal      
amount of $300,000 and (ii) pay to Bank $700,000 in cash (collectively, the     
"Purchase Price").                                                              

             3.2 Timing and Method of Payment. The cash portion of the
Purchase Price shall be paid to Bank at the Closing (as hereinafter defined) by 
cashier's check, certified check or wire transfer of immediately available      
funds, at the option of Bank. The remainder of the Purchase Price shall be paid 
to the Bank at the Closing by issuance of a note substantially in the form of   
Exhibit A hereto.                                                               

              3.3 Credit Against Purchase Price. At Closing, Buyer shall
receive a credit against the Purchase Price in an amount equal to the then      
outstanding amount of those liabilities of Borrower that are assumed by Buyer   
and that are reflected on Schedule 2.3 hereof.                                  

 4.       Liabilities and Liens Remain Outstanding; Bank Assumes
          ------------------------------------------------------
No Liabilities.                           
---------------                             

            4.1 Each of Bank, Borrower, Atlantic Hardware, Universal
Supply, Colonial and Well-Bilt, in its capacity as an Atlantic Hardware         
Guarantor and a Universal Supply Guarantor (Atlantic Hardware, Universal Supply,
Colonial and Well-Bilt, in its capacity as an Atlantic Hardware Guarantor and a 
Universal Supply Guarantor, sometimes hereinafter are referred to individually  
as a "Borrower Party" and collectively as "Borrower Parties") specifically      
acknowledge and agree that, except to the extent of cash actually and finally   
applied by Bank to such liabilities, the Loans and other Obligations shall      
remain outstanding, and Bank does not release any, but instead specifically     
reserves all, security interests, liens and other encumbrances and rights       
relating thereto, in all assets and collateral described in Bank Loan Documents 
which are not included in the Subject Assets and the assets which are not sold  
to Buyer hereunder, including, without limitation, all of the Excluded Assets.  

                4.2 Borrower and Buyer agree that, to date, Bank has assumed
no liability with respect to any of the Subject Assets or the Excluded Assets   
and Bank, under no circumstances (including, without limitation, with respect or
pursuant to this Agreement), assumes or shall assume any liability with respect 
to any of such assets.                                                          

                4.3 Borrower, Buyer and Bank agree that Buyer is responsible
for the Assumed Liabilities reflected on Schedule 2.3 of this Agreement.        

5.       Closing.                                             
-------                                     

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                 5.1 Closing Date. The "Closing Date" shall mean the date upon
which the Purchase Price is paid in cash by Buyer to Bank, Borrower's right,    
title and interest in the Subject Assets is transferred by Bank to Buyer, all of
which shall occur on or before February 1, 2001, or such later date to which the
Closing may be extended upon the mutual written consent of Bank and Buyer, such 
consent to be given or not given in the sole and absolute discretion of each    
such party. In the event that the Closing Date does not occur on or prior to    
February 1, 2001, the parties hereby agree that this Agreement shall be         
terminated, unless Bank and Buyer mutually agree to continue the Closing Date to
a date after February 1, 2001.                                                  

                  5.2 Time and Place. The transfer and delivery of all documents
and instruments necessary to consummate the transactions contemplated by this   
Agreement (the "Closing") shall be held at the offices of Katten Muchin Zavis,  
Chicago, Illinois, at 10:00 a.m. Chicago time on the Closing Date.              

  5.3  Transactions at Closing.  At the Closing:
-----------------------           

           (a) Bank shall execute and deliver to Buyer the General
    Assignment and Bill of Sale in substantially the form of Exhibit B
hereto.                                                       

            (b)      Buyer shall deliver to Bank the Purchase Price.

             (c) Bank's security interests and liens shall immediately
        attach to and be perfected with respect to the proceeds of the sale of
Subject Assets.                                               

                (d) Upon Bank's receipt of the Purchase Price, Bank shall be
        permitted to apply it to such of the Obligations as Bank determines in
its sole discretion.                                          

        6. Taxes. Any personal property taxes, sales taxes, and transfer taxes
arising as a result of the transactions and sales contemplated by this Agreement
shall be paid by Buyer.                                                         

         7. Representations, Warranties, and Covenants of Borrower. The Borrower
and each Borrower Party represents, warrants and covenants to Buyer and Bank as 
follows:                                                                        

              7.1 9-504 Notice. Notice to the Borrower and each Borrower
Party of the sale or disposition of the Subject Assets required under Section   
9-504(3) of the UCC has, by the Borrower's and each Borrower Party's execution  
of this Agreement, been waived.                                                 

               7.2 Conduct of Borrower's Business. Borrower covenants that
from the date of this Agreement through the Closing Date, Borrower will not: (a)
pay any dividends, make any distribution of capital or repurchase any capital   
stock; (b) make any advances, including salaries paid in advance, to officers,  
directors, shareholders or employees; (c) pay any bonuses, whether accrued,     
earned or unearned; (d) sell any asset, other than sales of inventory in the    

EX-10.III 7th Page of 18 TOC 1st Previous Next ↓Bottom Just 7th
ordinary course of business; (e) settle or compromise with respect to any claim 
or other asset of Borrower which exceeds $10,000 in book value, including       
accounts receivable, for less than book value; (f) terminate, amend, settle or  
waive any material right of substantial value; or (g) sell, or commit for future
delivery, any goods at prices below those which Borrower has, in the ordinary   
course of business, sold goods in the past. Borrower further covenants that it  
shall operate its business in a manner consistent with preserving its good      
standing with its customers and will keep all taxes current, including payroll  
taxes.                                                                          

                  7.3. Litigation. Except as previously disclosed by Borrower in
writing, to the best of Borrower's knowledge, no action, suit, proceeding or    
investigation is pending or threatened against Borrower.                        

          7.4. Existence of and Title to the Subject Assets. The
specific items constituting the Subject Assets will be in existence on the      
Closing Date (except for any accounts receivable collected by Borrower since the
date of this Agreement). Borrower has good title to the Subject Assets, subject 
to the security interests and liens listed on Part II of Schedule 2.2.          

             7.5 Taxes. Borrower has paid all sales taxes owing to any
governmental authority or agency.                                               

            7.6. No Bankruptcy. Borrower has not filed a petition in
voluntary bankruptcy or requested reorganization under any provision of any     
bankruptcy, reorganization or insolvency law nor has Borrower consented to the  
filing of any petition against it under any such law.                           

              7.7. Authorization. Borrower is duly authorized to conduct
business in the State of New York.                                              

8. Representations, Warranties, and Covenants of Buyer. Buyer 
represents, warrants and covenants to Bank as follows:                          

           8.1 Organization of Buyer. Buyer is a limited liability
company duly organized, validly existing and in good standing under the laws of 
the State of New York. Buyer has all limited liability company power and        
authority to purchase the Subject Assets pursuant to Section 9-504 of the UCC   
and other applicable law, to execute and deliver this Agreement and the other   
documents, instruments or agreements to be executed and delivered by it in      
connection herewith, and to carry out all of the actions required of it pursuant
to the terms of this Agreement. None of Buyer's equity interests are owned or   
controlled by the Borrower or any Borrower Party or any individual, person or   
entity which either directly or indirectly owns or controls any equity interest 
in the Borrower or any Borrower Party.                                          

                  8.2 Corporate Approval; Binding Effect. Buyer has obtained all
necessary authorizations and approvals required for the execution and delivery  
of this Agreement and the other documents, instruments or agreements to be      

EX-10.III 8th Page of 18 TOC 1st Previous Next ↓Bottom Just 8th
executed and delivered by it in connection herewith, and the consummation of the
transactions contemplated hereby. This Agreement has been duly executed and     
delivered by Buyer and constitutes, the legal, valid and binding obligation of  
Buyer, enforceable against Buyer in accordance with its terms.                  

              8.3 Litigation. Except as previously disclosed by Buyer in
writing, to the best of Buyer's knowledge, no action, suit, proceeding or       
investigation is pending or threatened against Borrower or Buyer, relating to,  
affecting, or questioning the validity of this Agreement or challenging any of  
the transactions contemplated hereby.                                           

             8.4 Indemnification and Hold Harmless. In addition to the
assumption of liabilities pursuant to Section 2.3 and 8.6, Buyer hereby agrees  
to indemnify, pay, defend and hold Bank, and its officers, directors, employees,
agents, affiliates and attorneys (collectively, the "Bank Indemnitees"), and    
Borrower and Borrower Parties, and their officers, directors, employees, agents,
affiliates and attorneys (collectively, the "Borrower Indemnitees"), harmless   
from and against any and all claims, liabilities, obligations, issues, damages, 
penalties, actions, judgments, suits, actions, causes of actions, demands,      
costs, expenses and disbursements of any kind or nature (collectively, a        
"Claim") that may be imposed on, incurred by or asserted, at any time, against  
Bank Indemnitees or Borrower Indemnitees as a result of any Claim that may now  
exist or that may hereafter arise, in whole or in part, in connection with or as
a result of any action by Bank with respect to Borrower or to Subject Assets    
from Buyer's failure to satisfy the Assumed Liabilities or the Assumed Leases   
(as herein defined). To the extent that the undertaking to indemnify, pay and   
hold harmless set forth in the preceding sentence may be unenforceable because  
it is violative of any law or public policy, Buyer shall contribute the maximum 
portion that it is permitted to pay and satisfy under applicable law to the     
payment and satisfaction of any claim incurred by Bank Indemnitees, Borrower    
Indemnitees or any of them.                                                     

         8.5 Brokers. Buyer has not retained, utilized or been
represented by any broker or finder in connection with the transactions         
contemplated by this Agreement.                                                 

               8.6 Assumption of Liabilities. Buyer shall assume, satisfy,
and pay only the obligations and liabilities of Borrower reflected on Schedule  
2.3 of this Agreement. Buyer shall also assume all unexpired leases relating to 
the Real Property and all leases set forth on Schedule 8.6 (collectively, the   
"Assumed Leases").                                                              

              8.7 Lack of Bad Faith. Buyer has no reason to believe that
Bank is acting in bad faith in connection with this Agreement.                  

              8.8 The Subject Assets and Bank's Security Interest in the
Subject Assets. Buyer is not aware of any fact or circumstance that would lend  
Buyer to conclude that Bank fails to hold a perfected, first priority (to the   
extent that priority can be determined from a search of the public records)     
security interest in and lien upon the Subject Assets. To the best of Buyer's   

EX-10.III 9th Page of 18 TOC 1st Previous Next ↓Bottom Just 9th
knowledge, information and belief, the Subject Assets encompass all personal    
property assets owned by Borrower.                                              

         9. Representations, Warranties, and Covenants of Bank. Bank represents,
warrants and covenants to Buyer that:                                           

           9.1 Release of Lien. Bank has not released any security
interest, lien or mortgage it may have in, or intentionally consented to the    
sale or disposition of, any Subject Assets being purchased hereunder (except for
sales in the ordinary course of Borrower's business and for the sale pursuant   
hereto), and has not heretofore sold, assigned, transferred or participated any 
of its interests in the Subject Assets being purchased hereunder.               

        9.2 Brokers. Bank has not retained, utilized or been
represented by any broker or finder in connection with the transactions         
contemplated by this Agreement.                                                 

               9.3 Bank's Right to Dispose of Subject Assets. Bank has the
right to sell the Subject Assets pursuant to the terms of Bank Loan Documents   
and pursuant to the applicable provisions of the UCC.                           

9.4      [Intentionally Omitted.]           

                  9.5 Enforceability of Bank Loan Documents. Bank Loan Documents
are enforceable against Borrower and the Subject Assets in accordance with their
terms, subject to applicable bankruptcy, insolvency, bank moratorium or similar 
laws affecting creditors' rights and remedies generally and, as to              
enforceability, to general principles of equity regardless of whether           
enforcement is sought in a preceding at law or in equity; provided, however,    
that Bank is unaware of any such principle that may be applicable.              

                9.6 Corporate Authority. The execution of this Agreement and
the other documents, agreements and instruments to be executed and delivered by 
Bank in connection herewith, and the consummation of the transactions           
contemplated hereby, are within the authority of the individual who shall       
execute this Agreement on behalf of Bank. The Bank is authorized to conduct     
business in the State of New York.                                              

             9.7 Security Interest, Lien and Mortgage. Pursuant to the
terms of Bank Loan Documents, at the Closing, Bank shall warrant that it has a  
perfected, first priority (to the extent that priority may be determined by     
public records) security interest in and lien upon the Subject Assets.          

             9.8 Litigation. Except as previously disclosed by Bank in
writing, to the best of Bank's knowledge, no action, suit, proceeding or        
investigation is pending or threatened against Borrower, relating to, affecting,
or questioning the validity of this Agreement or challenging any of the         
transactions contemplated hereby.                                               

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             9.9 Lack of Bad Faith. Bank has no reason to believe that
Buyer is acting in bad faith in connection with this Agreement.                 

               9.10 Subordinate Liens. Other than those liens reflected on
part II of Schedule 2.2, Bank has no knowledge of other liens on the Subject    
Assets.                                                                         

      10. Bank's Intent, Representation and Warranty Regarding Transfer of
the Subject Assets. Bank intends, under Section 9-504 of the UCC and Bank Loan  
Documents, and, in accordance with applicable law, to transfer all of Borrower's
rights, title and interest in the Subject Assets to Buyer for value and to      
discharge the security interest under which it is made and any security interest
or lien subordinate thereto. Bank represents and warrants to Buyer that, at     
Closing, Buyer shall receive, through execution of this Agreement, execution of 
Exhibit B, the transfer of Borrower's interests in and to the Subject Assets    
free and clear of Bank's security interest and lien therein, and any security   
interest or lien subordinate thereto. It is further understood and agreed by    
Bank and Borrower that regardless of Bank's application of the Purchase Price,  
the Purchase Price is in consideration of Borrower's Obligations to Bank,       
regardless of the validity or enforceability of Bank's lien with respect to any 
particular asset being sold.                                                    

        11. Limitation of Bank's Liability. Buyer agrees that Bank's liability
in the event that any of Bank's representations, covenants or warranties set    
forth in Sections 9 and 10 above are breached, shall not, in any event, exceed  
the Purchase Price.                                                             

      12. Agreement Concerning Post-Closing Collections. Bank and Borrower
each agrees that it will promptly turn over to Buyer, in form received, all     
cash, checks and other items of payment which are received by or otherwise come 
into its possession after the Closing Date, which represent payments by account 
debtors which shall become the property of Buyer. Buyer agrees that it will     
promptly turn over to Bank, in form received, all cash, checks, and other items 
of payment which are received by or otherwise come into Buyer's possession      
relating to refunds from Borrower's Workers' Compensation insurance plans and   
Borrower's real property insurance policies. Prior to delivery to Buyer of      
amounts which are the property of Buyer, Bank or Borrower, as applicable, will  
hold all such cash, checks and other items of payment in trust for Buyer.       

        13. Buyer's Conditions to Closing; Deliveries to Buyer at Closing. The
obligation of Buyer to consummate the Closing shall be subject to the           
satisfaction, at or prior to Closing, of the conditions that (a) Buyer shall    
have received, duly executed (unless waived) by Bank a General Assignment and   
Bill of Sale covering the Subject Assets in the forms of Exhibit B hereto dated 
as of the Closing Date; (b) Buyer shall have received possession of the Subject 
Assets; and, (c) no bankruptcy or insolvency petition shall have been filed by  
Borrower or filed against Borrower which has not been dismissed. Buyer          
specifically agrees that its obligation to consummate the transactions embodied 
in this Agreement is not conditioned or contingent upon: (a) the satisfactory   
results of any further due diligence by Buyer; or (b) the obtaining of any      
financing.                                                                      

EX-10.III 11th Page of 18 TOC 1st Previous Next ↓Bottom Just 11th
         The obligation of Buyer to consummate the Closing shall also be subject
to the satisfaction prior to the Closing of the following additional conditions 
(unless waived):                                                                

                  13.1 Representations and Warranties True. All representations,
certifications and warranties of Bank and Borrower hereunder shall be true as of
the Closing Date in every material respect.                                     

                  13.2 No Default by Bank or Borrower. Each of Bank and Borrower
shall have performed and complied with all agreements, covenants and conditions 
required by this Agreement, or by any agreement executed and delivered or to be 
executed and delivered in connection herewith or pursuant hereto, to be         
performed or complied with by either of them, prior to or at the Closing.       

                 13.3 No Statutes, Rules or Orders. There shall be no statute,
rule, regulation or order of any court or administrative agency in effect which 
prohibits Bank, Borrower or Buyer from consummating the transactions            
contemplated hereby.                                                            

              13.4 Closing. The Closing shall have occurred on or before
February 1, 2001, or such later date as Buyer and Bank may mutually agree upon  
in writing.                                                                     

               13.5 Completion of Schedules. All schedules and exhibits to
this Agreement shall be completed on or before the Closing to Bank's and Buyer's
satisfaction.                                                                   

    14. Bank's Conditions to Closing; Delivery to Bank at Closing. The
obligation of Bank to consummate the Closing shall be subject to the            
satisfaction, at or prior to Closing, of the following conditions (to the extent
noncompliance is not waived in writing by Bank):                                

                  14.1 Consideration Paid. Bank shall have received the Purchase
Price.                                                                          

                 14.2 Notice of Sale. Notice of the sale of the Subject Assets
contemplated hereby shall have been given (in form and substance satisfactory to
Bank) to all other entities entitled to notice under Section 9-504 of the UCC   
who have not waived in writing after default their right to receive such notice 
prior to the Closing Date.                                                      

           14.3 Reaffirmation by Borrower Parties. Bank shall have
received a Reaffirmation, Release, Consent and Acknowledgment dated as of the   
Closing Date in a form reasonably acceptable to Bank and the Guarantor.         

                 14.4 Reaffirmation, Release, Consent and Acknowledgment. Bank
shall have received a Reaffirmation, Release, Consent and Acknowledgment dated  
as of the Closing Date in a form reasonably acceptable to Bank and Borrower.    

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                 14.5 No Statutes, Rules or Orders. There shall be no statute,
rule, regulation or order of any court or administrative agency in effect which 
prohibits Bank, Borrower or Buyer from consummating the transactions            
contemplated hereby.                                                            

                  14.6 Representations and Warranties True. All representations,
certifications and warranties of Buyer and Borrower and the Borrowing Parties   
hereunder shall be true as of the Closing Date in every material respect.       

                 14.7 No Default By Buyer or Borrower. Each of Buyer, Borrower
and the Borrowing Parties shall have performed and complied with all agreements,
covenants and conditions required by this Agreement or by any agreement executed
and delivered or to be executed and delivered in connection herewith or pursuant
hereto, to be performed or complied with by either of them, prior to or at the  
Closing.                                                                        

          14.8 Violation of Law. No violations of law shall have
occurred which could, in Bank's judgment, have an adverse impact on Bank's      
ability to consummate the transactions contemplated hereby.                     

         14.9 Access. For the period between execution of this
Agreement and Closing, Borrower shall have made available to Bank and Buyer, and
allowed Bank and Buyer access to, the Subject Assets and the books and records  
of Borrower related thereto.                                                    

            14.10 No Violation of Agreements. The making, execution,
delivery, and performance of this Agreement by Bank and Buyer will not violate  
or conflict with any restriction binding upon or relating to Buyer or its       
business, operations, properties, or assets.                                    

              14.11 Other Documents. Bank shall have received such other
documents, instruments or certificates as Bank may reasonably request with      
respect to any matter relevant to this Agreement, the transfer of the Subject   
Assets, or the transactions contemplated by this Agreement.                     

               14.12 Closing. The Closing shall have occurred on or before
February 1, 2001, or such later date as Bank or Buyer may mutually agree upon in
writing.                                                                        

                14.13 Completion of Schedules. All schedules and exhibits to
this Agreement shall be completed on or before the Closing to Bank's and Buyer's
satisfaction.                                                                   

15.      General.                                             
-------                                     

           15.1 Expenses. Except as otherwise agreed herein, or as
provided in the Loan Agreement and related documents, all expenses of the       
preparation, execution and consummation of this Agreement and of the            
transactions contemplated hereby, including, without limitation, attorneys,     
accountants and outside advisor's fees and disbursements, shall be borne by the 

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party incurring such fees; provided, however, that: (i) nothing contained herein
shall in any manner alter, limit, or modify Bank's right to have such fees and  
expenses reimbursed pursuant to the provisions of the Loan Agreement and any of 
the Related Agreements and documents; and (ii) any and all such fees and        
expenses incurred by or on behalf of Bank are hereby deemed to be part of and   
added to the Obligations (as defined in the Loan Agreement) of Borrower and/or  
each of the Co-Borrowers/Guarantors.                                            

              15.2 Notice. All notices, demands and other communications
hereunder shall be in writing or by written telecommunication, and shall be     
deemed to have been duly given if delivered personally, if mailed by certified  
mail return receipt requested, if mailed postage prepaid, or if sent by written 
telecommunication, confirmation of receipt received, as follows:                

If to Bank, to:                                               

       LaSalle Bank National Association
135 South LaSalle Street  
  Chicago, Illinois 60603-4105
        Attn: Asset Based Lending Division

With a copy sent contemporaneously to:                        

Katten Muchin Zavis       
525 West Monroe Street    
  Chicago, Illinois 60661-3693
Attn: Jeff J. Marwil, Esq.

If to Buyer, to:                                              
     Independent Steel Products, LLC
c/o Kestenbaum & Mark     
40 Cattermill Road        
Great Neck, NY 11021      
Attn: Richard Kestenbaum  

With a copy sent contemporaneously to:                        

Richard Kestenbaum        
40 Cattermill Road        
Great Neck, NY 11021      

If to Borrower, to:                                           

   c/o Colonial Commercial Corp.
3601 Hempstead Turnpike   
Levittown, New York 11756 
Attn: James Stewart       

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With a copy sent contemporaneously to:                        

Oscar Folger              
521 5th Avenue, 24th Floor
New York, NY 10175        

         15.3 Entire Agreement. This Agreement and the related
schedules, exhibits and agreements delivered in connection herewith contain the 
entire understanding of the parties with respect to the subject matter hereof,  
supersede all prior agreements and understandings relating to the subject matter
hereof, and shall not be amended except by a written instrument hereafter signed
by all of the parties hereto.                                                   

             15.4 Governing Law. The validity and construction of this
Agreement shall be governed by the internal laws of the State of Illinois       
without regard to principles of conflicts of laws.                              

          15.5 Sections, Section Headings and Defined Terms. All
enumerated subdivisions of this Agreement are herein referred to as "sections"  
or "subsections." The headings of the sections and subsections are for reference
only and shall not limit or control the meaning thereof. Capitalized terms      
contained in the Exhibits or Schedules to this Agreement, which are not         
otherwise defined in such Exhibits or Schedules, shall have the meaning ascribed
to them in this Agreement.                                                      

             15.6 Successors. This Agreement shall be binding upon and
inure to the benefit of each of the parties hereto and their respective heirs,  
successors and assigns; provided, however, that no party may assign, whether    
absolutely or merely for collateral purposes, its rights, claims and benefits   
hereunder to any other person or entity without the express written consent of  
each of the other parties to this Agreement; provided, however, that Buyer      
cannot assign its indemnification obligations set forth in this Agreement.      

        15.7 Survival of Representations and Warranties. The
representations and warranties of the parties hereto contained in this          
Agreement, notwithstanding any investigation by Buyer, Borrower or Bank, shall  
be deemed to have been relied upon by Buyer, Borrower or Bank, as the case may  
be, and shall survive the Closing and consummation of the transactions          
contemplated hereby.                                                            

                 15.8 Further Assurances. From time to time, at the reasonable
request of another party hereto, each party hereto shall execute and deliver    
such further instruments and take such further actions at the expense of the    
requesting party, as such requesting party may in good faith deem necessary or  
desirable in order to assure that the transfers, purposes and objectives of this
Agreement are fully accomplished. Without limiting the generality of the        
foregoing, Borrower and Bank will render every reasonable assistance to Buyer   

EX-10.III 15th Page of 18 TOC 1st Previous Next ↓Bottom Just 15th
with respect to the sale, assignment, transfer, and delivery of the Subject     
Assets to Buyer; and in the event of commencement hereafter of any case by or   
against Borrower pursuant to Title 11, United States Code, Borrower and Bank    
will take all necessary action forthwith to cause, authorize, and support the   
effectuation of such sale, assignment, transfer, and delivery of the Subject    
Assets to Buyer pursuant to the terms of this Agreement.                        

           15.9 No Implied Rights or Remedies. Except as otherwise
expressly provided herein, nothing herein express or implied is intended or     
shall be construed to confer upon or to give any person, firm, or corporation   
other than Bank, Borrower and Buyer any rights or remedies under or by reason of
this Agreement.                                                                 

             15.10 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of   
which together shall constitute one and the same agreement.                     

                 15.11 Risk of Loss. Except with respect to a violation of any
of the representations and warranties made herein by Bank or Borrower, the risk 
of any loss that may occur with respect to any of the Subject Assets or the Real
Property being purchased hereunder shall be borne by Buyer immediately upon and 
at all times after the Closing Date. Except solely as provided in the last      
sentence of this Section 15.11, Bank and Borrower shall have no liability       
whatsoever to Buyer for any loss or damage to the Subject Assets or Real        
Property being purchased hereunder that may occur on and after consummation of  
the Closing. Bank and Borrower shall and do hereby assign and transfer to Buyer 
at Closing all claims, causes of action or rights relating to any insured loss  
for the Subject Assets or the Real Property.                                    

                15.12 Limited Responsibility. Each party hereto acknowledges
and agrees that it is the mutual intent of the parties hereto that the          
obligations, representations, warranties and undertakings hereunder or as a     
result hereof or of the transactions contemplated hereby are and be limited to  
only those expressly set forth herein, and not enlarged by implication,         
operation of law or otherwise. Without limiting the generality of the foregoing,
Bank shall have no responsibility, liability or any other obligation whatsoever 
to Buyer or any other person or entity for any breach by Borrower or any other  
person or entity (including Guarantor) of any of its respective representations,
warranties, covenants or other obligations to Buyer set forth in any document   
delivered to Buyer by or on behalf of Borrower or such other person or entity in
connection with this Agreement or the transactions contemplated hereby.         

              15.13 UCC Redemption. The parties acknowledge that, at any
time before the Closing, Borrower or any other secured party of Borrower may    
redeem the pertinent Subject Assets by tendering fulfillment of all Obligations 
(including but not limited to the expenses reasonably incurred by Bank in       
retaking, holding and preparing the Subject Assets for disposition, in arranging
for the sale, and to the extent not prohibited by law, Bank's reasonable        
attorneys' fees and legal expenses). If such a redemption should occur, Bank    

EX-10.III 16th Page of 18 TOC 1st Previous Next ↓Bottom Just 16th
shall be relieved of its obligations, and Buyer shall be entitled to the return 
of any portion of the Purchase Price theretofore paid by it pursuant to the     
provisions of this Agreement. Borrower hereby waives, to the fullest extent     
permitted by law, any right to redeem any of the Subject Assets.                

       16. No Indemnification. Neither Bank nor Borrower agree to hold Buyer
harmless from and with respect to any claims, liabilities, losses, damages,     
costs or expenses whatsoever, and nothing in this Agreement shall be construed  
to create any such indemnification.                                             

 [Signature Page Follows.]

EX-10.III 17th Page of 18 TOC 1st Previous Next ↓Bottom Just 17th
  IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly respective officers as of the date and the year first    
above written.                                                                  

                               WELL-BILT STEEL PRODUCTS, INC.,
                        a New Jersey corporation

                        By:/s./ James W. Stewart
                      Name: James W. Stewart
                      Title:  Vice President

                                       ATLANTIC HARDWARE & SUPPLY CORPORATION,
                      a New York corporation

                        By: /s/ James W. Stewart
                       Name:  James W. Stewart
                 Title:  Secretary

                             UNIVERSAL SUPPLY GROUP, INC.,
                      a New York corporation

                        By: /s/ James W. Stewart
                      Name: James W. Stewart
                               Title: Executive Vice President

                          COLONIAL COMMERCIAL CORP.,
                      a New York corporation

                        By: /s/ James W. Stewart
                       Name:  James W. Stewart
                               Title: Executive Vice President

                                  LASALLE BANK NATIONAL ASSOCIATION,
                              a national banking association

                   By:/s/ John Mostofi
                   Name:  John Mostofi
                           Title: First Vice President

EX-10.III Last Page of 18 TOC 1st Previous Next ↓Bottom Just 18th
                               INDEPENDENT STEEL PRODUCTS, LLC

                      By:  /s/ Steven Glaser
                    Name:  Steven Glaser
               Title:  Manager

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Dates Referenced Herein and Documents Incorporated by Reference

		Referenced-On Page
This ‘8-K’ Filing	Date	First	Last	Other Filings

Filed on:	2/16/01
For Period End:	2/15/01
	2/1/01	6	12
	7/14/00	1	2
	6/1/00	1	2	424B3
	12/2/99	1	2
	11/1/99	1
	10/7/99	2
	9/29/99	1
	9/23/99	2
	9/21/99	1
	9/20/99	2
	6/24/99	1	2
				List all Filings

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Filing Submission 0000909012-01-000115 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

CCOM Group, Inc. – ‘8-K’ for 2/15/01 – EX-10.III

On: Friday, 2/16/01, at 12:16pm ET · For: 2/15/01 · Accession #: 909012-1-115 · File #: 1-06663

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Current Report — Form 8-KFiling Table of Contents

EX-10.III — Foreclosure Agreement

Dates Referenced Herein and Documents Incorporated by Reference

Current Report — Form 8-K
Filing Table of Contents