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EXHIBIT 2.4
EXECUTION COPY
FOURTH AMENDMENT TO
ASSET PURCHASE AGREEMENT
THIS FOURTH AMENDMENT TO ASSET PURCHASE AGREEMENT (the "Amendment") is
made and entered into as of the 23rd day of December, 1997, by and among
MACHINE TOOL AND GEAR, INC., a Michigan corporation ("Seller"), XXX X. XXXXXXX,
XXXXXX X. XXXXXXX, XXXXXX X. XXXXXXX, XXXXXX X. XXXXXXX, and XXXXXXX X.
XXXXXXX ("Indemnitors"), JMJ AND COMPANY, a Michigan co-partnership ("JMJ"),
and NEWCOR, INC., a Delaware corporation ("Buyer").
RECITALS
A. Seller, Indemnitors, JMJ and Buyer entered into an Asset Purchase
Agreement dated as of October 1, 1997, as amended by a First Amendment to Asset
Purchase Agreement dated as of October __, 1997, and amended by a Second
Amendment to Asset Purchase Agreement dated as of November __, 1997, and
amended by a Third Amendment to Asset Purchase Agreement dated as of December
12, 1997 (the "Agreement"), but subsequently have determined that certain
amendments to the Agreement are necessary and appropriate and therefore wish to
amend the Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements,
representations and warranties hereinafter set forth, Buyer, Seller,
Indemnitors and JMJ agree as follow:
1. As provided by the Agreement, one of the "Excluded Assets" is a
receivable owing to Seller from one or more of the Indemnitors, as may be
evidenced by a note or notes (the "Excluded Receivable"). It is hereby
acknowledged and agreed between Seller, Indemnitors and Buyer that is the
express intent and agreement of all parties that said Excluded Receivable
excluded from the sale and transfer of Assets (as defined in the Agreement)
under the Agreement be limited in an aggregate amount on the Closing Date (as
defined in the Agreement) to a sum not exceeding the balance outstanding as
shown on Seller's financial statements as of September 30, 1997 (i.e., the sum
of $563,864.69); that (a) to the extent the aggregate Excluded Receivable
obligation owing to Seller from one or more of the Indemnitors, individually or
in any combination, exceeds $563,864.69 on the Closing Date, and (b) to the
extent there have been distributions contrary to Section 8.01(g) since
September 30, 1997, the total amount of such excess under clause (a), and
distributions under clause (b), shall be due and owing to Buyer, and Buyer
shall offset said amount due and owing to Buyer, together with the amount of
state and county transfer taxes payable in respect of real estate transferred
from Seller to Buyer and premiums for title insurance policies for said
properties, against any cash or note payment owing from Buyer to Seller and/or
any one or more of the Indemnitors.
2. As provided in Section 6 of the Third Amendment to Asset Purchase
Agreement dated as of December 12, 1997, Seller has agreed
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to satisfy the conditions of Section 10.01 of the Agreement with respect to
those two (2) Plant Properties (as defined in the Agreement) located at (a)
0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxx, and (b) 0000 Xxxxx Xxxxxxxxxx, Xxxxxxx,
Xxxxxxxx, prior to the Financing Date (as defined in the Agreement). Without
limiting Seller's and/or Indemnitors' obligations or Buyer's rights thereunder,
Seller, Indemnitors and Buyer further agree that AKT Environmental Consultants,
Inc. shall be engaged, at Seller's and Indemnitors' sole cost and expense, but
according to Buyer's direction and control, to complete all "Phase I" type
work, "Phase II" type work and all other work necessary or advisable, in the
opinion of Buyer, to prepare, file with and have approved by the appropriate
state and/or federal governmental agencies and authorities having oversight of
environmental matters concerning said Plant Properties located at (a) 0000
Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxx, and (b) 0000 Xxxxx Xxxxxxxxxx, Xxxxxxx,
Xxxxxxxx, as well as the "Xxxxx Property" (as defined in the Agreement), on
terms and conditions satisfactory to Buyer, baseline environmental assessments
for each of said properties as promptly as possible and, in any case, no later
than forty-five (45) days from the Closing Date. Buyer shall cooperate with
Seller in any such filings, including, if required by statute or regulation,
being a signatory to such filings. If such government agencies, pursuant to
statutory or regulatory authority, require supplemental work to such work, then
AKT Environmental Consultants, Inc. shall prepare and file such supplemental
work as promptly as possible. All out-of-pocket costs and expenses, arising
from or out of any said work or activity, shall be paid, (a) if billed or paid
prior to Closing Date, solely by Indemnitors, or (b) if billed or paid after
the Closing Date, by Seller and/or Indemnitors, and Seller and the Indemnitors'
obligation in said respect shall be subject to claims for indemnification
against the Holdback Amount or any other sum available under the Escrow
Agreement; and, if said obligation is not promptly paid, Buyer may offset said
obligation against any cash or note payment owing from Buyer to Seller and/or
any one or more of the Indemnitors.
3. Except as amended hereby, the Agreement is ratified and confirmed in
all respects.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Third
Amendment as of the date and year first above written.
"SELLER"
MACHINE TOOL AND GEAR, INC.,
a Michigan corporation
By: /s/ Xxx X. XxXxxxx
-----------------------------
Xxx X. XxXxxxx
Its: President
"BUYER"
NEWCOR, INC., a Delaware corporation
By: /s/ W. Xxxx Xxxxxxxxx
----------------------------
W. Xxxx Xxxxxxxxx
Its: President
"INDEMNITORS"
/s/ Xxx X. XxXxxxx
----------------------------------
Name: Xxx X. XxXxxxx
Address: c/o North Lakes
Manufacturing, Inc.
0000 Xxxxx Xxxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
/s/ Xxxxxx X. XxXxxxx
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Name: Xxxxxx X. XxXxxxx
Address: c/o North Lakes
Manufacturing, Inc.
0000 Xxxxx Xxxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
/s/ Xxxxxx X. XxXxxxx
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Name: Xxxxxx X. XxXxxxx
Address: c/o North Lakes
Manufacturing, Inc.
0000 Xxxxx Xxxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
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"INDEMNITORS" (continued from previous page)
/s/ Xxxxxx X. XxXxxxx
-----------------------------------
Name: Xxxxxx X. XxXxxxx
Address: c/o North Lakes
Manufacturing, Inc.
0000 Xxxxx Xxxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
/s/ Xxxxxxx X. XxXxxxx
-----------------------------------
Name: Xxxxxxx X. XxXxxxx
Address: c/o North Lakes
Manufacturing, Inc.
0000 Xxxxx Xxxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
"JMJ"
JMJ and Company
/s/ Xxx XxXxxxx
-----------------------------------
Name: Xxx XxXxxxx
Partner
