EXHIBIT 10.2
TOLL MANUFACTURING AGREEMENT
THIS AGREEMENT is entered into as of the 18th day of December, 1997 by
and between NLV Transition, Inc., a Wisconsin corporation ("Seller"), and CMI
Limited Partnership, an Oklahoma limited partnership ("Buyer").
Unless the context otherwise requires, terms that are capitalized and
not otherwise defined in context have the meanings set forth in section 10 of
this Agreement.
RECITALS
Seller and Buyer acknowledge the following:
A. CMI Corporation ("CMI") and Rexworks Inc., a Delaware corporation
("Rexworks"), have entered into an Asset Purchase Agreement, dated as of October
1, 1997 (the "Asset Purchase Agreement"), which provides for the sale (the
"Asset Sale") by Rexworks to CMI or its assign of certain of Rexworks' assets
relating to the production of landfill and embankment compactors and material
reduction grinders.
B. Rexworks, Xxxxxxx Bros. Cranes, Inc., a Wisconsin corporation
("Xxxxxxx"), and 00xx Xxxxxx Acquisition Corp., a Delaware corporation and a
wholly owned subsidiary of Xxxxxxx ("Xxxxxxx Sub"), have entered into an
Agreement and Plan of Merger, dated as of August 15, 1997 (the "Merger
Agreement"), which provides for the merger of Xxxxxxx Sub with and into Rexworks
immediately after consummation of the Asset Sale.
C. CMI has assigned to Buyer all of its rights and obligations under
the Asset Purchase Agreement.
D. Section 9.02(f) of the Asset Purchase Agreement requires that
this Agreement be executed and delivered by Rexworks and Xxxxxxx as a condition
to Buyer's obligation to consummate the transactions contemplated by the Asset
Purchase Agreement in order for Seller to provide manufacturing services to
Buyer as a temporary source of supply for the Products.
E. Buyer and Seller desire that Seller provide manufacturing
services to Buyer pursuant to the terms of this Agreement using the Leased Space
and the Leased Employees to satisfy the condition contained in Section 9.02(f)
of the Asset Purchase Agreement.
AGREEMENTS
In consideration of the recitals and the mutual covenants contained
herein, the parties agree as follows:
1. Supply of the Products.
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(a) Seller's Obligation to Supply Products. During the term of
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this Agreement, Seller agrees to manufacture and supply Products to Buyer
pursuant to the terms of this Agreement. Seller will use reasonable efforts at
all times during the term of this Agreement to obtain from Rexworks and Xxxxxxx
the capacity to manufacture and supply Products as set forth on the Production
Schedule. If Seller fails to perform any work required to be performed on its
part as a result of an Unavoidable Delay, such failure will not constitute a
breach of this Agreement if Seller exercises reasonable diligence to effect the
required performance as soon as possible.
(b) Orders. For each order of Products to be supplied by Seller
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pursuant to this Agreement, Buyer will (i) deliver a separate written order
("Order") to Seller setting forth the quantity and specific description of the
Product(s) being ordered and requested delivery date(s), and (ii) deliver or
cause to be delivered to the Plant the Raw Materials and other supplies required
to produce the Product(s) ordered by Buyer pursuant to the Order. Seller will
promptly manufacture the Product(s) pursuant to the specifications contained in
each Order (to the extent consistent with the Specifications and the Production
Schedule) and pursuant to the terms of this Agreement and will make the finished
Product(s) available to Buyer for shipment from the Plant. Unless otherwise
agreed in writing by the parties, all terms of any Orders or other documents
which are inconsistent with or add to this Agreement are superseded by this
Agreement and will have no force or effect.
2. Manufacturing Fees. During the term of this Agreement, Buyer
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will pay Seller (a) a fee (the "Leased Salaried Employee Fee") for the use by
Seller of the Leased Salaried Employees which shall accrue on a daily basis and
shall equal the costs attributable to the Leased Salaried Employees used by
Seller to manufacture Products during each week of the term of this Agreement
based upon the daily rate of each Leased Salaried Employee set forth opposite
such Leased Salaried Employee's name on column D of Part II of Exhibit C hereto,
(b) a fee (the "Leased Hourly Employee Fee" and, collectively with the Leased
Salaried Employee Fee, the "Leased Employee Fee") for the use by Seller of the
Leased Hourly Employees which shall accrue on an hourly basis and shall equal
the product of (i) the costs attributable to the Leased Hourly Employees used to
manufacture Products during each week of the term of this Agreement based upon
the hourly rate of each Leased Hourly Employee set forth opposite such Leased
Hourly Employee's name on column D of Part I of Exhibit C hereto, multiplied by
(ii) the number of hours worked by such Leased Hourly Employees during each such
week, and (c) a fee (the "Leased Space Fee") for the use by Seller of the Leased
Space which shall accrue on a monthly basis and shall be calculated in
accordance with the schedule
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attached hereto as Exhibit B. Payment by Buyer to Seller of the Leased Employee
Fee and the Leased Space Fee in accordance with the terms of this Agreement
shall constitute payment in full for any Products manufactured by Seller during
the term of this Agreement. Buyer shall also pay the fees set forth on Exhibit D
for miscellaneous administrative and accounting services. Buyer and Seller
acknowledge that the number of Leased Employees will decrease over the term of
this Agreement substantially as set forth on Exhibit A attached hereto.
3. Shipment; Payment.
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(a) Shipment. Seller will use reasonable efforts to
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manufacture the Products by the delivery dates specified in the Order to the
extent consistent with the Production Schedule. Seller will make the Products
available at the Plant for shipment by Buyer. Buyer will make all arrangements
for and bear all costs involved in shipping finished Products from the Plant. On
the date of delivery of a finished Product to Buyer, Seller will deliver to
Buyer by facsimile an invoice showing order numbers for the shipment. Copies of
all such invoices shall be mailed to Buyer by U.S. mail.
(b) Payment.
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(i) Seller will use reasonable efforts to deliver to
Buyer by facsimile on Monday of every week during the term of this Agreement a
written estimate (the "Estimate") of the use by Seller of Leased Employees for
that week and the total amount of the Leased Employee Fee for that week (the
"Estimated Leased Employee Fee"). Buyer will pay to Seller the Estimated Leased
Employee Fee not later than the end of the next full business day following the
date of receipt by Buyer of the Estimate. For each such week during the term of
this Agreement, within three weeks after the date of delivery of the Estimate
for such week, Seller will deliver to Buyer a written reconciliation of the
actual amount of the Leased Employee Fee for such week and will reflect any
difference between the actual amount of the Leased Employee Fee for such week as
set forth in the reconciliation and the amount of the Estimated Leased Employee
Fee paid by Buyer for such week by increasing or decreasing, as applicable, the
amount of the Estimated Leased Employee Fee in the next Estimate delivered after
delivery to Buyer of the reconciliation. Within ten business days after the end
of the term of this Agreement, Seller will deliver to Buyer a final
reconciliation of all outstanding adjustments based on the difference between
the Estimated Leased Employee Fee and the actual Leased Employee Fee for any
week not previously reconciled and Buyer or Seller, as applicable, will pay to
the other party the difference between the Estimated Leased Employee Fee and the
actual Leased Employee Fee based upon such reconciliation.
(ii) Buyer will pay to Seller the Leased Space Fee each
month in advance, commencing with a payment of $25,124 on the date of this
Agreement for the month of December 1997. Thereafter, Buyer shall make each
subsequent monthly Leased Space Fee payment not later than three days prior to
the first day of each month during the term of this Agreement.
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(iii) All payments by Buyer to Seller under this Agreement
shall be made by wire transfer made in accordance with written instructions
provided to Buyer by Seller, provided, however, that if such instructions are
not provided within one business day prior to the date of payment, Buyer may
deliver a certified or bank check, payable to Seller.
(iv) Until two weeks after the receipt by Buyer of the
final reconciliation pursuant to Section 3(b)(i), Seller shall give Buyer and
its authorized representatives reasonable access to Seller's books and records
relating to the determination of the Estimate, the Estimated Leased Employee Fee
and the Leased Employee Fee.
4. Indemnification and Insurance.
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(a) Indemnification by Buyer. Buyer agrees to indemnify and hold
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harmless Seller and Rexworks, and their respective directors, officers,
employees and agents (collectively, the "Seller Indemnitees") from and against
all losses, damages, liabilities and expenses, including reasonable attorneys'
fees, of any kind or nature (collectively, "Damages"), incurred by reason of any
claim, action, suit or governmental investigation or proceeding (a "Claim")
brought against or involving the Seller Indemnitees or any of them, which
relates to or arises out of (i) Buyer's failure to comply with any provision of
this Agreement, or (ii) any matter relating to the design, quality, fitness,
sale, purchase or performance of any Product manufactured by Seller for Buyer,
including, without limitation, any product liability claims relating to the
Products.
(b) Third Party Indemnification. The obligation of Buyer to
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indemnify the Seller Indemnitees under Section 4(a) hereof, in each case
resulting from the assertion of a Claim by a third party (each, as the case may
be, a "Third Party Claim"), shall be further subject to the following terms and
conditions:
(i) Any party against whom any Third Party Claim is
asserted shall give the party required to provide indemnity hereunder written
notice of such Third Party Claim promptly after learning of such Third Party
Claim, and the indemnifying party may at its option undertake the defense
thereof with counsel chosen by it but reasonably satisfactory to the indemnified
party. Failure to give prompt notice of a Third Party Claim hereunder shall not
affect the indemnifying party's obligations under this Section 4, except to the
extent the indemnifying party is materially prejudiced by such failure to give
prompt notice. If the indemnifying party, within 30 days after notice of any
such Third Party Claim, or such shorter period as is reasonably required, fails
to assume the defense of such Third Part Claim, the Seller Indemnitee against
whom such Third Party Claim has been made shall have the right, but shall not be
obligated, to undertake the defense, compromise or settlement of such Third
Party Claim on behalf of and for the account and risk, and at the expense, of
the indemnifying party.
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(ii) Anything in this Section 4(b) to the contrary
notwithstanding, the indemnifying party shall not enter into any settlement or
compromise of any action, suit or proceeding or consent to the entry of any
judgment (A) which does not include as an unconditional term thereof the
delivery by the claimant or plaintiff to the Seller Indemnitee of a written
release from all liability in respect of such action, suit or proceeding, or (B)
for other than monetary damages without the prior written consent of the Seller
Indemnitee, which consent shall not be unreasonably withheld.
(d) Insurance. During the term of this Agreement, and for a
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period of three years thereafter, Buyer agrees to maintain, at its own expense,
general products liability insurance with a reputable insurance carrier and to
provide that such insurance name each of Seller and Rexworks as an additional
insured with minimum coverage amounts of not less than $1,000,000 per occurrence
for property damage, $1,000,000 per occurrence for personal injury and
$1,000,000 annual aggregate. At Seller's or Rexworks' request, Buyer shall
provide Seller and Rexworks with a certificate of insurance showing the
existence of such coverage.
(e) The respective obligations of the parties under this Section
4 shall survive the termination of this Agreement, however occurring.
5. Term and Termination.
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(a) Term of Agreement. Unless terminated earlier as provided
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herein, the term of this Agreement shall be for 194 days from the date hereof.
This Agreement may be renewed by mutual, written agreement of Seller, Buyer and
Rexworks.
(b) Termination of Agreement. This Agreement will terminate
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prior to the end of its term as provided in Section 5(a) above upon the
occurrence of any of the following:
(i) Mutual Agreement. The mutual, written agreement of
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Seller, Buyer and Rexworks;
(ii) Breach. Either party may terminate this Agreement
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(the "Terminating Party") in the event of a material breach by the other party
(the "Breaching Party") of any of its obligations under this Agreement. The
Terminating Party must provide the Breaching Party with written notice of the
reason for termination. The Breaching Party shall have five days from the date
of delivery of such notice to cure such breach to the reasonable satisfaction of
the Terminating Party and, if the breach is not so cured, the Terminating Party
has the right to terminate this Agreement immediately upon notice to the
Breaching Party at the end of such five days and at any time thereafter during
the pendency of such breach;
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(iii) Buyer's Option. By Buyer, in its sole discretion,
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upon not less than 65 days prior written notice to Seller;
(iv) Termination of Lease Agreement. Buyer may terminate
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this Agreement by giving written notice to Seller in the event that the Lease
Agreement is terminated pursuant to Section 3(b)(ii) or Section 3(b)(iii) of the
Lease Agreement; or
(v) Unavailability of Leased Hourly Employees. Buyer may
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terminate this Agreement by giving five days prior written notice to Seller in
the event that (A) Seller is unable for three consecutive business days to
provide the services of the "Minimum Allowable" number of Leased Hourly
Employees set forth on the last line of Exhibit A attached hereto for the then
current period, and (B) the number of employees terminated by Rexworks without
cause during the 90 days immediately preceding the date of the Layoff Report
(defined below) plus the number of Leased Hourly Employees who were available to
provide services hereunder on the date of the Layoff Report is less than 25.
Within one business day after Buyer's request, Rexworks shall notify Buyer in
writing (the "Layoff Report") of the number of employees terminated by Rexworks
without cause during the 90 days immediately preceding the date of the Layoff
Report and Buyer shall be entitled to rely on the Layoff Report for purposes of
this Section 5(b)(v).
(c) Effect of Termination in Event of Breach. In the event of a
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termination of this Agreement pursuant to Section 5(b)(ii), all remedies
available to the Terminating Party either in law or equity shall be preserved
and survive the termination of this Agreement.
Notwithstanding termination of this Agreement, other than
termination by Buyer pursuant to Section 5(b)(ii) or Section 5(b)(iv), Buyer
shall continue to pay the Leased Space Fee after the effective date of such
termination for the remainder of the original term of the Lease Agreement,
provided, however, that in the event of a termination by Buyer pursuant to
Section 5(b)(v), Buyer shall not be required to pay the Leased Space Fee for
more than 60 days after the date of termination or the date Buyer moves all of
its property out of the Plant, whichever is later.
6. Necessary License. Buyer hereby grants to Seller a fully paid,
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nonroyalty bearing nonexclusive license to all inventions, copyrights, patents,
trademarks, trade secrets, know-how and all other intellectual property rights
held by Buyer that are necessary for the manufacture of the Products by Seller
(the "Necessary Technology"). Seller agrees that the foregoing license to the
Necessary Technology is solely for the limited use of carrying out the purpose
of this Agreement and for no other purpose and automatically will terminate upon
the termination of this Agreement pursuant to Section 5 above. Any idea,
design, concept or other invention made or developed solely by Seller or jointly
by Seller and Buyer in the course of manufacturing Products hereunder shall
promptly be disclosed by Seller to Buyer in a complete written disclosure.
Seller hereby
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assigns to Buyer all right, title and interest in and to any such idea, design,
concept or other invention together with the right to file patent and other
similar applications with respect thereto in any country. Seller agrees to take
any and all actions as may be reasonably requested by Buyer to cause complete
and full ownership of all such ideas, designs, concepts and other inventions to
be vested completely in Buyer.
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7. Lease of Tangible Assets.
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(a) Lease. Buyer hereby leases to Seller without charge all
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Personal Property necessary for the manufacture of the Products by Seller (the
"NecessaryPersonal Property"). Seller agrees that the foregoing lease of the
Necessary Personal Property is solely for the limited use of carrying out the
purpose of this Agreement and for no other purpose and automatically will
terminate upon the termination of this Agreement pursuant to Section 5 above.
(b) Obligations With Respect to Necessary Personal Property.
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Buyer shall not be liable for any loss or injury to Seller or any other person
or property (including lost profits and consequential, incidental or special
damages) caused by the Seller's use of the Necessary Personal Property or its
failure to operate. Seller will keep the Necessary Personal Property in good
condition and repair, at Buyer's sole expense, provided, however, that Seller
will not effect any repair with respect to the Necessary Personal Property in
excess of $500 without Buyer's prior written consent. Buyer will promptly
reimburse Seller for all out-of-pocket costs with respect to any repair of the
Necessary Personal Property and Buyer agrees that any use of Leased Employees to
effect repairs of the Necessary Personal Property will be charged to Buyer as
part of the Leased Employee Fee. All replacement parts and additions to the
Necessary Personal Property will become the property of Buyer. Seller shall have
no obligation to insure the Necessary Personal Property against any risk.
(c) Limited Use. The Necessary Personal Property will be used
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solely for the purpose of manufacturing Products to be supplied by Seller to
Buyer hereunder. Without the prior written consent of Buyer, Seller shall not
make any alterations to the Necessary Personal Property, allow any portion of
the Necessary Personal Property to be used by anyone but Seller's employees or
the Leased Employees, or move any of the Necessary Personal Property to any
other location.
(d) Relocation of Necessary Personal Property. The parties
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acknowledge that, as individual items of the Necessary Personal Property are no
longer required for Seller to fulfill its obligations hereunder, Buyer intends,
at its expense, to move such items to Buyer's manufacturing facility in Oklahoma
City, Oklahoma. The parties shall cooperate in making arrangements for the
expeditious relocation of the Necessary Personal Property from the Leased Space
to Buyer's facility. Notwithstanding anything to the contrary herein, so long
as such action does not materially and adversely affect Seller's ability to
perform its obligations hereunder, Buyer shall be entitled at any time to take
possession of any item of the Necessary Personal Property and transport said
item to Buyer's facility.
8. Confidentiality.
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(a) Ownership of Information. Seller acknowledges that all
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information disclosed or made available to it by Buyer pursuant to this
Agreement as well
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as all information transferred to Buyer by Rexworks pursuant to the Asset
Purchase Agreement (the "Transferred Information"), including, without
limitation, the Necessary Technology and all information pertaining to the
conduct of Buyer's business and affairs shall, at all times, both during and
after the termination of this Agreement, however occurring, remain the exclusive
property of Buyer and that Seller shall not acquire any proprietary interest in
such information or any part thereof.
(b) Access to Confidential Information. Neither party shall,
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directly or indirectly, disclose, or permit anyone to disclose, any Confidential
Information disclosed or made available by the other party, and shall carefully
guard and keep secret all such Confidential Information. Neither party shall, at
any time, allow anyone other than the other party hereto, or those authorized by
the other party, to have access to or use any Confidential Information disclosed
or made available by the other party. Each party shall use all reasonable
efforts to protect the proprietary nature of any and all Confidential
Information of the other. Except as expressly provided otherwise in this
Agreement, neither party shall copy, modify, transcribe, store, sell, lease or
otherwise transfer or distribute any Confidential Information of the other in
whole or in part without prior authorization in writing from the other party.
Both parties shall make use of such information only during the term of this
Agreement and solely for the purpose of carrying out the intent of this
Agreement. For purposes of this Agreement, the term "Confidential Information"
includes, without limitation, a party's techniques, processes, procedures,
operations and other proprietary information relating to manufacturing,
operations, marketing and finances. Upon termination of this Agreement, however
occurring, both parties shall surrender to the other party all documents
including, but not limited to, plans, specifications, literature, samples,
documents and other tangible things, relating to Confidential Information
disclosed or made available by the other party and all supplies which are the
property of the other party. Notwithstanding anything to the contrary in this
Section 8(b), Confidential Information shall include and Seller shall not use or
disclose to any third party any Transferred Information and any other
information relating to the Products or any of the techniques, processes and
procedures used by Seller or Rexworks in manufacturing and marketing the
Products.
(c) Liability for Disclosure. Neither party shall be liable for
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disclosure to others of Confidential Information disclosed or made available to
it by the other party if the information: (i) can be demonstrated by
contemporaneous written records to have been in the other party's possession or
available to the other party prior to the receipt of same from Buyer or Seller
as the case may be; provided, however, Seller agrees that the Transferred
Information shall not in any event be disclosed to any third party or used by
Seller except as may be required to perform Seller's obligations pursuant to the
terms of this Agreement; (ii) can be demonstrated by clear and convincing
evidence to have been received from a third party having no obligation to hold
the same in confidence; (iii) can be demonstrated by clear and convincing
evidence to have been generally known or generally available to the public prior
to the date of the disclosure; (iv) becomes generally known or generally
available to the public through no act or
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failure to act on the part of either party or its affiliates; or (v) is required
by law to be disclosed.
(d) Use of Product Information. Notwithstanding anything to the
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contrary herein, Seller acknowledges and agrees that, after the termination of
this Agreement, however occurring, Buyer shall be entitled to utilize any and
all techniques, processes, procedures, operations and other proprietary
information developed or used by Seller in the manufacture and marketing of the
Products.
9. Inspection and Quality Control.
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(a) Right of Inspection. During the term of this Agreement,
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Buyer shall have the right to inspect and audit the parts of Seller's operations
which are used in the manufacture, packaging and storage of the Products.
Without limiting the generality of the foregoing sentence, Buyer shall have the
right to inspect all parts, assemblies and Products in process and all finished
Products to insure that such parts, assemblies and Products will at the time of
delivery to Buyer conform in all material respects to the Specifications
therefor and will be free from defects in materials and workmanship. All
inspections will be conducted during normal business hours and Buyer shall have
the sole right to determine the number and frequency of such inspections.
(b) No Warranty. After Seller completes and inspects a finished
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Product and makes the Product available for shipment by Buyer pursuant to
Section 3(a) and provides Buyer with the opportunity to inspect the Product
pursuant to Section 9(a), Buyer will either accept the Product or will specify
in writing to Seller any applicable defects in materials or workmanship. If any
such defects are specified by Buyer, Seller shall continue to perform the work
necessary under the terms of this Agreement to remedy such defects. Upon final
acceptance of a Product, Buyer shall take such Product on an "as is, where is"
basis, with all faults. SELLER MAKES NO WARRANTIES OR REPRESENTATIONS EITHER
EXPRESSED OR IMPLIED WITH RESPECT TO THE PRODUCTS INCLUDING ITS DESIGN, QUALITY,
PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(c) Quality Control. Upon Buyer's reasonable request, Seller
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shall provide Buyer with information regarding the manufacture by Seller of the
Products in compliance with the terms of this Agreement and all federal, state
and local laws, rules, ordinances and regulations and such additional
information directly related to the manufacture of the Products as Buyer shall
reasonably request.
10. Definitions. As used in this Agreement, the following terms have
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the following meanings:
(a) "Damages" shall have the meaning set forth in Section 4(a)
hereof.
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(b) "Lease Agreement" means the agreement between Rexworks and
Seller, in the form attached hereto as Exhibit E, with respect to the use of the
Leased Space and Leased Employees by Seller during the term of this Agreement
for the manufacture of Products by Seller for Buyer.
(c) "Leased Employees" means the Leased Salaried Employees and
the Leased Hourly Employees.
(d) "Leased Hourly Employees" means the employees of Rexworks
listed on Part I of Exhibit C attached hereto, as the same may be amended from
time to time by mutual written agreement of Buyer and Seller, whose services
Seller will lease pursuant to the Lease Agreement.
(e) "Leased Salaried Employees" means the employees of Rexworks
listed on Part II of Exhibit C attached hereto, as the same may be amended from
time to time by mutual written agreement of Buyer and Seller, whose services
Seller will lease pursuant to the Lease Agreement.
(f) "Leased Space" means that part of the Plant that Seller
leases from Rexworks for the manufacture by Seller of Products pursuant to the
Lease Agreement.
(g) "Necessary Personal Property" shall have the meaning set
forth in Section 7 hereof.
(h) "Necessary Technology" shall have the meaning set forth in
Section 6 hereof.
(i) "Personal Property" shall have the meaning set forth in the
Asset Purchase Agreement.
(j) "Plant" means Rexworks' manufacturing facility located at
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000.
(k) "Production Schedule" means the forecasted description of
Products and quantities thereof to be manufactured and supplied by Seller to
Buyer hereunder during the term of this Agreement set forth on Exhibit F
attached hereto, as the same may be amended by mutual, written agreement of
Buyer and Seller during the term of this Agreement.
(l) "Products" means landfill and embankment compactors and
material reduction grinders, service and replacement parts therefor, and
components or subassemblies of such compactors and grinders.
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(m) "Raw Materials" means the materials and supplies described
on Exhibit G attached hereto necessary for the manufacture of Products.
(n) "Specifications" means the quality and performance of the
specifications set forth on Exhibit H.
(o) "Transferred Information" shall have the meaning set forth
in Section 8(a) hereof.
(p) "Unavoidable Delay" means strikes, lockouts or labor
disputes; delays in receiving supplies from third party suppliers; inability to
obtain materials or reasonable substitutes therefor; acts of God, governmental
restrictions, regulations or controls; enemy or hostile government action; civil
commotion, a riot or insurrection, fire or other casualty or other events
similar to the foregoing beyond the reasonable control of Seller, and shall also
include any breach by Rexworks or Xxxxxxx of the Lease Agreement that adversely
affects Seller's ability to manufacture the Products.
11. Miscellaneous.
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(a) Assignment. Neither party shall transfer or assign this
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Agreement in whole or in part without the prior written consent of the other
party, which consent shall not be unreasonably withheld. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(b) Independent Contractor. This Agreement does not create any
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partnership, joint venture, trust or agency between the parties hereto. This
Agreement shall not cause either party to be considered an agent or legal
representative of the other for any purpose, nor shall this Agreement cause
either party's officers, directors, employees or agents to be considered agents
or employees of the other party. This Agreement shall not give either party or
any of its officers, directors, employees or agents any authority to bind the
other party in any contract with any third party on behalf of or in the name of
that third party.
(c) Waivers. The failure of either party to insist, in any one
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or more instances, upon full performance of the terms, covenants and conditions
of this Agreement shall not be construed as a waiver or a relinquishment of any
right granted hereunder or a waiver of future full performance of any such term,
covenant or condition.
(d) Severability. If any provision of this Agreement is held by
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a court of competent jurisdiction to be invalid or unenforceable for any reason
whatsoever, the parties agree that such invalidity or unenforceability shall not
affect any other provision of this Agreement, the remaining provisions hereof
shall remain in full force and effect and any court of competent jurisdiction
may so modify the objectionable provision as to make it valid and enforceable.
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(e) Remedies. The remedies set forth above for breach of
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warranty are exclusive of all other remedies.
(f) Governing Law. This Agreement shall be governed by and
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construed in accordance with the internal laws of the State of Oklahoma without
giving effect to any choice of law provision or rule (whether of the State of
Oklahoma or any other jurisdiction) that would cause the application of any of
the laws of any jurisdiction other than the State of Oklahoma.
(g) Notice. All notices and other communications given or made
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pursuant to this Agreement shall be in writing and shall be deemed to have been
duly given or made upon receipt, if delivered personally, on the third business
day following deposit in the U.S. mail if mailed by registered or certified mail
(postage prepaid, return receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
changes of address) or the next business day following electronic transmission
to the telecopier number specified below with receipt acknowledged (other than
with respect to the Estimate pursuant to Section 3(b)(i) which shall be deemed
to have been duly given when sent by electronic transmission to the telecopier
specified below with receipt acknowledged):
If to Buyer: CMI Limited Partnership
X.X. Xxx 0000
Xxxxxxxx Xxxx, XX 00000
Attn: Xx. Xxx X. Xxxxxxx
Facsimile: 000-000-0000
with a copy to: Xxxxxxx Xxxxxx & Xxxxx
1600 Bank of Oklahoma Plaza
000 Xxxxxx X. Xxxx
Xxxxxxxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxxx, Esq.
Facsimile: 000-000-0000
If to Seller: NLV Transition, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxxxxx X. Xxxxxx
Facsimile: 000-000-0000
with a copy to: Reinhart, Boerner, Van Deuren,
Xxxxxx & Xxxxxxxxxx, s.c.
0000 Xxxxx Xxxxx Xxxxxx,
Xxxxx 0000
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Facsimile: 000-000-0000
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(h) Entire Agreement. This Agreement and the exhibits hereto
----------------
constitute the entire agreement between the parties and supersede all prior
agreements, understandings and arrangements, oral or written, between the
parties with respect to the subject matter hereof. In the event of conflict
between any term of this Agreement and any term in a party's purchase orders,
quotations, acknowledgments, invoices, license or other communications to the
other party, this Agreement shall govern.
(i) Modification Amendment and Waiver. This Agreement may not be
---------------------------------
modified or amended (including by custom, usage of trade or course of dealing)
except by an instrument in writing signed by duly authorized officers of both
the parties hereto. The performance of any obligation required of a party
hereunder may be waived only by written waiver signed by a duly authorized
officer of the other party which waiver shall be effective only with respect to
the specific obligations described therein. The waiver by either party hereto of
a breach of any obligation of the other shall not operate or be construed as a
waiver of any subsequent breach of the same provision or any other provision of
this Agreement. Notwithstanding anything herein to the contrary, this Agreement
may not be amended or modified, nor may Seller waive the performance by Buyer of
any obligation of Buyer required hereunder, without the prior written consent of
Rexworks.
(j) Compliance With Law. Each party shall comply with all
-------------------
applicable federal, state and local laws and regulations in performing its
duties hereunder and any dealings with respect to the Products.
(k) Additional Indemnification by Buyer. Buyer agrees to
-----------------------------------
indemnify and hold harmless Rexworks and its directors, officers, shareholders,
employees and agents (collectively, the "Rexworks Indemnified Parties") from and
against all Damages incurred by the Rexworks Indemnified Parties or any of them
as a result of Buyer's failure to comply with any provision of this Agreement.
(l) Rexworks and Rexworks Indemnified Parties as Third Party
--------------------------------------------------------
Beneficiaries. Buyer acknowledges and agrees that Seller's ability to perform
-------------
under the Lease Agreement is dependent, in large part, upon Buyer's performance
of its duties and obligations under this Agreement. Accordingly, the parties
hereto specifically agree that Rexworks and each of the Rexworks Indemnified
Parties shall be a third party beneficiary of this Agreement. In addition, in
the event that Buyer fails to comply with any provision of this Agreement,
Rexworks shall have the right, but shall not be obligated, to enforce any of
Seller's rights under this Agreement.
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(m) Parties in Interest. Nothing in this Agreement express or
-------------------
implied is intended to or shall confer upon any third party, other than
Rexworks, the Rexworks Indemnified Parties and the Seller Indemnitees, any
rights, benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
(n) Damage, Destruction or Eminent Domain. In the event of
-------------------------------------
damage to the Leased Space or the Plant by fire, vandalism or any other
casualty, or any condemnation or public taking of all or any part of the Leased
Space or the Plant, Seller shall terminate the Lease Agreement pursuant to
Section 3(b)(iii) of the Lease Agreement at Buyer's written request if Buyer
also agrees in such request to indemnify the Seller and its directors, officers,
employees and agents from and against any and all Damages the Seller or its
directors, officers, employees or agents may suffer resulting from or in
connection with any dispute with Rexworks as to whether proper grounds existed
to terminate the Lease Agreement pursuant to Section 3(b)(iii) of the Lease
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
BUYER: CMI LIMITED PARTNERSHIP
BY: CMI Corporation, its General Partner
BY: /s/ XXX X. XXXXXXX
_____________________________________
Xxx X. Xxxxxxx, Senior Vice President
SELLER: NLV TRANSITION, INC.
BY: /s/ XXXXXXXX X. XXXXXX
-------------------------------------
Xxxxxxxx X. Xxxxxx, President
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JOINDER BY CMI CORPORATION
CMI Corporation, an Oklahoma corporation and the direct or indirect
holder of 100% of the ownership interests of Buyer, hereby joins this Agreement
for the sole purpose of guaranteeing the performance of all of the obligations
of Buyer as set forth in this Agreement.
Dated this 18th day of December, 1997.
CMI CORPORATION
BY: /s/ XXX X. XXXXXXX
-------------------------------------
Xxx X. Xxxxxxx, Senior Vice President
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