EXHIBIT 10.46
MWE DRAFT
OCTOBER 10, 2001
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "AGREEMENT"), is made and entered into
as of September 28, 2001, by and between CONGRESS FINANCIAL CORPORATION
(SOUTHWEST), a Texas corporation ("SELLER") and OBB ACQUISITION CORP., a
Delaware corporation ("BUYER").
RECITALS
A. Seller has acquired all right, title and interest in certain of the
assets and properties of DRIVELINE TECHNOLOGIES, INC., an Oklahoma corporation
("DRIVELINE").
B. Buyer desires to purchase certain assets formerly held by Driveline
from Seller, and Seller desires to sell such assets to Buyer, on the terms and
subject to the conditions of this Agreement.
C. Accordingly, Buyer and Seller are desirous of entering into this
Agreement in order to evidence the terms and conditions of such acquisition of
assets by Buyer from Seller.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the parties agree as
follows:
ARTICLE I
DEFINITIONS
The terms defined in this Article shall have the following respective
meanings for all purposes of this Agreement and for all schedules and exhibits
hereto:
"AFFILIATE" means with respect to any Person any other Person that,
directly or indirectly, through one or more intermediaries, controls, is
controlled by or is under common control with, such first Person. For purposes
of this definition, the term "control" (including the correlative meanings of
the terms "controls," "controlled by," and "under direct or indirect control
with") as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
policies of such Person, whether through ownership of voting securities or by
contract or otherwise.
"AGREEMENT" shall have the meaning given such term in the introductory
paragraph hereof, and shall include any and all amendments, modifications or
supplements to this Agreement.
"ASSIGNMENT" means that certain Assignment, in the form attached as
EXHIBIT A to this Agreement, to be executed and delivered by Buyer and Seller at
the Closing.
"XXXX OF SALE" means that certain Xxxx of Sale, in the form attached as
EXHIBIT B to this Agreement, to be executed and delivered by Seller to Buyer at
the Closing.
"BUSINESS DAY" means a day other than a Saturday, Sunday or other day on
which commercial banks in Dallas, Texas or New York, New York are authorized or
required by law to close.
"BUYER" shall have the meaning given to such term in the introductory
paragraph hereof and shall include successors and permitted assigns of Buyer.
"BUYER'S DOCUMENTS" shall have the meaning given to such term in SECTION
6.2(a).
"CLOSING" means the consummation and effectuation of the transactions
contemplated herein pursuant to the terms and conditions of this Agreement,
which shall take place at the offices of Xxxxxx Xxxxx LLP, 0000 Xxxx Xxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxx 00000 on the same day this Agreement is fully executed
by Buyer and Seller, or at such other place as is mutually agreed upon by the
parties hereto. Upon consummation, the Closing shall be deemed to have taken
place as of 12:01 a.m. on the Closing Date.
"CLOSING DATE" means the date on which the Closing actually occurs.
"DRIVELINE" shall have the meaning given such term in Recital (A) hereof.
"GOVERNMENTAL AUTHORITY" means any foreign, domestic, federal, territorial,
state or local governmental authority, quasi-governmental authority,
instrumentality, court, government or self-regulatory organization, commission,
tribunal or organization or any regulatory, administrative or other agency, or
any political or other subdivision, department or branch of any of the
foregoing.
"INTELLECTUAL PROPERTY" shall mean, all rights to the registered and
unregistered patents, patents pending, patent rights, patent applications,
trademarks, trademark applications, trademark registrations, trade names,
service marks, copyrights, applications for the foregoing, trade secrets, good
will, processes, drawings, blueprints, customer lists and licenses, whether as a
licensor or licensee, which are more particularly described and listed on
Schedule 1.1.
"INVENTORY" means those inventory assets of Seller more particularly
described and listed on Schedule 1.2.
"KNOWLEDGE", whether capitalized or not, means a matter which is within the
Person's `knowledge' or which is otherwise `known' to such Person, and such
Person has "knowledge" of a matter if such Person or an executive officer of
such Person has actual knowledge of such matter or would reasonably be expected
to have actual knowledge of such matter following reasonable inquiry of the
appropriate employees and agents of such Person.
"LIABILITY" means, with respect to any Person, any liability or obligation
of such Person of any kind, character or description, whether known or unknown,
absolute or contingent, accrued or unaccrued, liquidated or unliquidated,
secured or unsecured, joint or several, due or to become due, vested or
unvested, executory, determined, determinable, or otherwise and whether or not
the same is required to be accrued on the financial statements of such Person
and whether or not the same appears on any schedule to this Agreement.
2
"LIEN" means any lien, pledge, mortgage, security interest, claim, lease,
charge, option, right of first refusal, easement, servitude, transfer
restriction, competing claim of ownership or any other encumbrance, restriction
or limitation whatsoever.
"LOSSES" means any and all claims, demands, losses, costs, expenses,
obligations, Liabilities, damages (including, without limitation, for physical
injury including sickness, disease or death or property damage), recoveries and
deficiencies, including interest, reasonable attorneys' fees and court costs.
"MACHINERY, EQUIPMENT, FURNITURE AND FIXTURES" means those items of office
equipment, office and shop furniture, fixtures, machinery, vehicles, equipment,
tools, hand held computers and other personal property and fixed assets of
Seller which are more particularly described and listed on Schedule 1.3.
"PERMITTED ENCUMBRANCES" means Liens for current taxes and assessments not
yet due and payable, including, but not limited to, Liens for nondelinquent ad
valorem taxes and nondelinquent statutory Liens arising other than by reason of
any default on the part of Seller.
"PERSON" means an individual, partnership, corporation, estate, joint-stock
company, limited liability company, trust, unincorporated organization,
association, joint venture or other entity or organization, including any
Governmental Authority.
"PRE-CLOSING LIABILITY" shall mean any Liability relating to or arising
from the ownership or operation of the Purchased Assets by Seller before August
20, 2001, any obligations to pay utilities or taxes for the period prior to
August 20, 2001 and any credit or other amount due a direct or indirect
purchaser of products produced using the Machinery, Equipment, Furniture and
Fixtures before August 20, 2001.
"PURCHASED ASSETS" means the Intellectual Property, the Inventory, the
Machinery, Equipment, Furniture and Fixtures and the Receivables.
"PURCHASE PRICE" shall have the meaning given such term in Article IV.
"RECEIVABLES" means the accounts receivable created on or after August 20,
2001 upon the sale of products produced using the Machinery, Equipment,
Furniture and Fixtures, the assets Buyer has purchased today from Prime
Financial Corporation and certain other assets of Driveline which have been made
available to Seller and Prime in connection therewith.
"REPOSSESSION" shall mean the repossession of and acquisition of title to
the Purchased Assets by Seller pursuant to the terms and conditions of the
Repossession Agreement, which took place on May 11, 2001.
"REPOSSESSION AGREEMENT" shall mean that certain Peaceful Repossession
Agreement, dated May 11, 2001, by and among Driveline, L & S Manufacturing Corp.
and Seller, a true and correct copy of which is attached to this Agreement as
EXHIBIT C hereto.
"SELLER" shall have the meaning given such term in the introductory
paragraph hereof.
3
"SELLER'S DOCUMENTS" shall have the meaning given such term in Section 5.2.
ARTICLE II
PURCHASE AND SALE OF PURCHASED ASSETS
On the terms and subject to the conditions hereof, Seller agrees at Closing
to sell, assign and convey to Buyer, and Buyer agrees to purchase at Closing
from Seller, all of Seller's right, title and interest in and to the Purchased
Assets free and clear of all Liens and encumbrances, other than the Permitted
Encumbrances, for the consideration set forth in this Agreement.
ARTICLE III
LIABILITIES
It is expressly understood and agreed that Buyer will be liable for all
Liabilities related to the ownership and operation of the Purchased Assets,
which arise or are incurred from and after August 20, 2001, to the extent that
the existence at or after such date of such Liabilities does not constitute a
breach of any representation or warranty made by Seller herein or in connection
herewith. It is expressly understood and agreed that Buyer will not assume any
Liability of Seller or of its Affiliates, including without limitation, any
Liability relating to the ownership or use of Purchased Assets or sale of
products produced using the Purchased Assets prior to August 20, 2001. Anything
to the contrary herein notwithstanding, or in any other writing delivered in
connection herewith, nothing herein or in any such other writing shall be
construed to constitute the assumption, express or implied, by Buyer of any
Liability of Seller or of any Affiliate of Seller, or of Driveline, or any of
its Affiliates.
ARTICLE IV
PURCHASE PRICE AND MANNER OF PAYMENT
As the consideration to be paid by Buyer to Seller for the purchase by
Buyer from Seller of all of the Purchased Assets, Buyer will pay Seller the sum
of (a) One Million Seven Hundred and Ten Thousand Dollars ($1,710,000) (the
"Base Amount") and (b) [$305,738.76] [to be brought forward to closing date]
(the "Receivables Amount" and, together with the Base Amount, the "Purchase
Price"), provided all of the conditions set forth in this Agreement have been
fulfilled. On the Closing Date, Buyer will wire transfer the Base Amount to
Seller in immediately available funds. Such wire transfer to Seller of the Base
Amount shall be made in accordance with Seller's written wire instructions
provided to Buyer no later than one (1) Business Day prior to the Closing Date.
The Receivables Amount shall be paid out of the proceeds of the Receivables,
which the parties have agreed that Seller shall collect on behalf of Buyer
following the Closing.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer as follows:
Section 5.1 ORGANIZATION. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the state in which it was
incorporated. Seller has all requisite
4
corporate right, power and authority to own and sell all of the Purchased Assets
to Buyer pursuant to this Agreement.
Section 5.2 AUTHORITY; CONSENTS AND APPROVALS.
(a) Seller has all requisite corporate right, power and authority
to execute, deliver and perform this Agreement and each other document and
agreement referenced herein to be executed and delivered by Seller pursuant
hereto (together, the "SELLER'S DOCUMENTS"). The execution, delivery, and
performance of the Seller's Documents by Seller has been duly and validly
authorized and approved by all necessary corporate action. The Seller's
Documents constitute the legal, valid and binding obligations of Seller,
enforceable against it in accordance with their respective terms.
(b) The execution, delivery and performance of the Seller's
Documents by Seller will not (with or without the giving of notice or the
passage of time, or both) (i) violate any applicable provision of law or any
rule or regulation of any federal, state or local Governmental Authority
applicable to Seller or the Purchased Assets, or any order, writ, injunction,
judgment or decree of any court, administrative agency or other Governmental
Authority applicable to Seller or the Purchased Assets, (ii) violate either the
Seller's Articles of Incorporation or Bylaws, as each is amended to the Closing
Date, (iii) require any consent under, conflict with or constitute a breach or
default under any agreement, indenture, mortgage, deed of trust, lease, or other
instrument to which Seller is a party or by which it is bound, or any license,
permit or certificate held by Seller, or (iv) require any consent of, approval
by, notice to or registration with any Governmental Authority.
Section 5.3 TITLE TO PURCHASED ASSETS.
(a) Prior to the Repossession, (i) Seller had a perfected
security interest in the Purchased Assets prior and superior to all others and
(ii) Driveline defaulted in the performance of its obligations secured by such
security interest. Pursuant to the Repossession, Seller came into lawful
possession of the Purchased Assets without breaching the peace in accordance
with all applicable laws and pursuant to the terms and conditions of the
Repossession Agreement. There are no parties with the right to redeem the
Purchased Assets (specifically including, but not limited to any guarantors or
holders of any Liens). Every aspect of the intended sale of the Purchased Assets
from Seller to Buyer is commercially reasonable. Seller has given legally
sufficient notice of the sale to Driveline and to all other parties that are
entitled to receive such notice.
(b) Seller is the sole and absolute owner of the Purchased Assets
and has good and marketable title to and the right to assign and convey the
Purchased Assets free and clear of any and all Liens of any kind whatsoever.
Seller's ownership of the Purchased Assets is not subject to any pending or, to
Seller's knowledge, threatened claim, defense, action or proceeding of any other
Person. At Closing, Seller will convey to Buyer, and Buyer upon delivery to it
of the Assignment and of the Xxxx of Sale by Seller at Closing will receive, all
legal and beneficial title in and to all of the Purchased Assets, free and clear
of any and all Liens thereon of any kind whatsoever.
5
Section 5.4 NO INJUNCTIONS OR ORDERS. Seller is not a party to any
agreement, and Seller is not subject to nor, to the knowledge of Seller,
threatened with, any injunctions of any court or orders of any other
Governmental Authority with respect to the Purchased Assets.
Section 5.5 LITIGATION. There is no suit, action, administrative
proceeding, arbitration, grievance or other proceeding or governmental
investigation pending or, to the knowledge of Seller, threatened, against Seller
which individually or in the aggregate could adversely affect the Purchased
Assets.
Section 5.6 COMPLIANCE WITH LAWS. Seller has not received any written
notice claiming it is in violation of, any order, law, ordinance, statute, rule
or regulation applicable to the Purchased Assets where the consequences of such
violation would have an adverse effect on the Purchased Assets.
Section 5.7 BROKERS. No agent, broker, investment banker, or other Person
acting on behalf of Seller or under its authority is or will be entitled to any
broker's or finder's fee or any other commission or similar fee, directly or
indirectly, in connection with the transaction contemplated by this Agreement.
Section 5.8 INTELLECTUAL PROPERTY RIGHTS. Seller acquired the
Intellectual Property from Driveline and L & S Manufacturing Corp. pursuant to
the Repossession. Seller has not received notice from any Person claiming that
any operation, or act, product, technology or service relating to the
Intellectual Property infringes or misappropriates the Intellectual Property of
any Person, or that Driveline or any of its Affiliates has engaged in unfair
competition or trade practices under the laws of any relevant jurisdiction (nor
does the Seller have knowledge of any basis therefor). Seller is the sole and
absolute owner of the Intellectual Property. Seller has not assigned,
transferred, or hypothecated its interest in the Intellectual Property to any
other person or entity. The Intellectual Property is not subject to any Liens,
charges or encumbrances.
Section 5.9 DISCLOSURES. The representations, warranties or statements by
Seller herein and in the Exhibits and Schedules attached hereto are true,
complete and correct in all material respects and do not contain any untrue
statement of a material fact.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
Section 6.1 ORGANIZATION. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the state in which it was
incorporated. Buyer has all requisite corporate right, power and authority to
purchase the Purchased Assets from Seller pursuant to this Agreement.
Section 6.2 AUTHORITY. Buyer has all requisite corporate right, power and
authority to execute, deliver and perform this Agreement and each other document
and agreement referenced herein to be executed and delivered by Buyer pursuant
hereto (together, the "BUYER'S DOCUMENTS"). The execution, delivery and
performance of the Buyer's Documents by Buyer have been duly and validly
authorized and approved by all necessary corporate action. The
6
Buyer's Documents constitute the legal, valid and binding obligations of Buyer,
enforceable against it in accordance with their respective terms.
Section 6.3 NO VIOLATIONS OR CONSENTS. The execution, delivery and
performance of the Buyer's Documents by Buyer will not (with or without the
giving of notice or the passage of time or both) (i) violate any applicable
provision of law or any rule or regulation of any federal, state or local
Governmental Authority applicable to Buyer, or any order, writ, injunction,
judgment or decree of any court, administrative agency or other Governmental
Authority applicable to Buyer, (ii) violate Buyer's Certificate of Incorporation
or Bylaws, as each is amended to the Closing Date, (iii) require any consent
under, conflict with or constitute a breach or default under any agreement,
indenture, mortgage, deed of trust, lease, license or other instrument to which
Buyer is a party or by which it or any Purchased Asset is bound, or any license,
permit or certificate held by Buyer, or (iv) require any consent of, approval
by, notice to or registration with any Governmental Authority.
Section 6.4 COMPLIANCE WITH LAWS. Buyer has not received any written
notice claiming Seller is in violation of, any order, law, ordinance, statute,
rule or regulation applicable to the Purchased Assets where the consequences of
such violation would have an adverse effect on the Purchased Assets.
Section 6.5 BROKERS. No agent, broker, investment banker, or other Person
acting on behalf of Buyer or under its authority is or will be entitled to any
broker's or finder's fee or any other commission or similar fee, directly or
indirectly, in connection with the transaction contemplated by this Agreement.
Section 6.6 DISCLOSURES. The representations, warranties or statements by
Buyer herein and in the Exhibits and Schedules attached hereto are true,
complete and correct in all material respects and do not contain any untrue
statement of a material fact.
ARTICLE VII
CLOSING DELIVERIES
The obligations of Buyer and Seller hereunder are subject to the
satisfaction of the following Closing deliveries that are conditions precedent
unless specifically waived by the parties.
Section 7.1 SELLER'S CLOSING DELIVERIES. Seller shall execute and
deliver, or cause to be executed and delivered, to Buyer on the Closing Date,
each of the following:
(a) This Agreement;
(b) The Xxxx of Sale;
(c) The Assignment;
(d) Executed UCC-3 Partial Releases in form satisfactory to
Buyer, in its sole and absolute discretion, sufficient to evidence the full and
complete release of any and all Liens on the Purchased Assets;
7
Section 7.2 BUYER'S CLOSING DELIVERIES. Buyer shall have executed and
delivered, or caused to be executed and delivered, to Seller at the Closing each
of the following:
(a) This Agreement;
(b) The Purchase Price, paid in the manner required by the
provisions of Article IV; and
(c) The asset purchase agreement of even date herewith between
Buyer and Prime Financial Corporation, shall have been executed and delivered,
and all conditions precedent thereto shall have been completed to the reasonable
satisfaction of Seller.
ARTICLE VIII
INDEMNIFICATION
Section 8.1 INDEMNIFICATION OF BUYER BY SELLER. Subject to the limitation
imposed by Section 8.5 below, notwithstanding any investigation by Buyer or its
representatives, the Seller, its successors and assigns, will indemnify and hold
the Buyer, and its Affiliates, harmless from and fully pay any and all Losses,
that Buyer, or any of its Affiliates, may suffer or incur as a result of or
relating to(a) the breach of any representations or warranties made by Seller in
Article and elsewhere in this Agreement, or in any other document delivered by
Seller to Buyer pursuant hereto to include, without limitation, the Xxxx of Sale
and the Assignment (collectively, the "TRANSACTION DOCUMENTS"), or any
allegation by a third party that, if true, would constitute such a breach, (b)
the breach of any covenant or agreement of Seller in this Agreement or the
Transaction Documents, or (c) any Pre-Closing Liability.
Section 8.2 INDEMNIFICATION OF SELLER BY BUYER. Notwithstanding any
investigation by Seller or its representatives, the Buyer, its successors and
assigns, will indemnify and hold Seller, and its Affiliates, harmless from and
fully pay any and all Losses that Seller, or any of its Affiliates, may suffer
or incur as a result of or relating to the breach of any representations or
warranties made by Buyer in Article and elsewhere in this Agreement.
Section 8.3 NOTICE. If a party is entitled to receive indemnification or
to recover from the other party for any Losses incurred pursuant to this Article
(the "INDEMNIFIED PARTY"), the Indemnified Party agrees to give prompt written
notice to the other party (the "INDEMNIFYING PARTIES") upon the occurrence of
any indemnifiable or recoverable Loss or the assertion of any claim or the
commencement of any action or proceeding by any third party in respect of which
such a Loss may reasonably be expected to occur (a "CLAIM"), but the Indemnified
Party's failure to give such notice will not affect the obligations of the
Indemnifying Party under this Article except to the extent that the Indemnifying
Party is materially prejudiced thereby. Such written notice will include a
reference to the event or events forming the basis of such Loss or Claim and the
amount involved, unless such amount is uncertain or contingent, in which event
the Indemnified Party will give a later written notice when the amount becomes
fixed.
Section 8.4 DEFENSE OF CLAIMS. The Indemnifying Party may elect to assume
and control the defense of any Claim, including the employment of counsel
reasonably satisfactory to the Indemnified Party and the payment of expenses
related thereto, if (a) the Indemnifying Party acknowledges its obligation to
indemnify the Indemnified Party for any Losses resulting from
8
such third party Claim and provides reasonable evidence to the Indemnified Party
of its financial ability to satisfy such obligation; (b) the Claim does not seek
to impose any liability or obligation on the Indemnified Party other than for
money damages; and (c) the Claim does not relate to the Indemnified Party's
relationship with its customers or employees. If such conditions are satisfied
and the Indemnifying Party elects to assume and control the defense of a Claim,
then (i) the Indemnifying Party will not be liable for any settlement of such
Claim effected without its consent, which consent will not be unreasonably
withheld; (ii) the Indemnifying Party may settle such Claim without the consent
of the Indemnified Party; and (iii) the Indemnified Party may employ separate
counsel and participate in the defense thereof, but the Indemnified Party will
be responsible for the fees and expenses of such counsel unless (A) the
Indemnifying Party has failed to adequately assume the defense of such Claim or
to employ counsel with respect thereto or (B) a conflict of interest exists
between the interests of the Indemnified Party and the Indemnifying Party that
requires representation by separate counsel, in which case the fees and expenses
of such separate counsel will be paid by the Indemnifying Party. If such
conditions are not satisfied, the Indemnified Party may assume and control the
defense of the Claim at the Indemnifying Party's cost and expense.
Section 8.5 LIMITATION ON MAXIMUM AMOUNT OF LIABILITY OF SELLER FOR
INDEMNIFICATION CLAIMS OR LOSSES. The maximum aggregate amount of Losses for
which any Indemnifying Party, shall be obligated to pay to an Indemnified Party,
pursuant to its obligations under Section 8.1 or 8.2 above, as the case may be,
shall NOT, in any event, exceed a total sum equal to the amount of the Purchase
Price.
ARTICLE IX
FURTHER AGREEMENTS
Section 9.1 ADDITIONAL ACTIONS SELLER AND BUYER. On and after the Closing
Date, Seller shall execute and deliver such documents and do and perform all
such other acts as may reasonably be required by Buyer in order fully to convey
and transfer to and vest in Buyer all of the Purchased Assets of Seller intended
to be assigned, transferred and conveyed pursuant hereto.
Section 9.2 COSTS AND TRANSFER TAXES. Except as otherwise set forth in
this Agreement, each party hereto shall pay its own costs and expenses
(including legal fees and expenses) incurred in connection with due diligence
reviews, the preparation, negotiation and execution of this Agreement and all
other agreements, certificates, instruments and documents delivered hereunder
and all other matters relating to the consummation of the transactions
contemplated hereby, whether or not the proposed transaction is consummated. All
sales, documentary stamp taxes and other transfer taxes in connection with the
sale and delivery of the Purchased Assets hereunder shall be paid by Seller.
Section 9.3 BOOKS AND RECORDS AFTER CLOSING. From and after the Closing,
Buyer shall have free and open access to all books and records which Seller may
have relating in any manner to the Purchased Assets and Seller shall furnish
Buyer with copies thereof.
Section 9.4 DELIVERY OF PROPERTY RECEIVED AFTER CLOSING. Seller agrees
that it will transfer or deliver to Buyer, promptly after the receipt thereof,
any cash or other property which
9
Seller receives after the Closing Date in respect of any assets transferred or
intended to be transferred to Buyer as part of the Purchased Assets under this
Agreement; PROVIDED that the first [$305,738.76] of Receivables collected by
Seller shall be applied to the payment of the Receivables Amount. Buyer agrees
that it will transfer or deliver to Seller, promptly after the receipt thereof,
any cash or other property which Buyer receives after the Closing Date in
respect of any assets not transferred or intended to be transferred to Buyer as
part of the Purchased Assets under this Agreement. Without limiting the
generality of the foregoing, Seller agrees that it shall (a) provide Buyer with
a statement of the Receivables and all related back-up material, (b) provide
Buyer with a weekly accounting of all amounts received on account of the
Receivables and (c) pay over to Buyer all such sums in excess of the Receivables
Amount within one (1) week of receipt by Seller. Seller acknowledges that Buyer
shall have the sole right to pursue collection of the Receivables and that
Seller shall have no right to settle or compromise any dispute concerning the
Receivables without the consent of Buyer.
ARTICLE X
MISCELLANEOUS
Section 10.1 ENTIRE UNDERSTANDING, WAIVER, ETC. This Agreement (including
all schedules and exhibits attached hereto) and all other agreements executed
and delivered at the Closing set forth the entire understanding of the parties
and supersede any and all prior or contemporaneous agreements, arrangements and
understandings relating to the subject matter hereof, and the provisions hereof
may not be changed, modified, waived or altered except by an agreement in
writing signed by the parties hereto. A waiver by any party of any of the terms
or conditions of this Agreement, or of any breach thereof, shall not be deemed a
waiver of such term or condition for the future, or of any other term or
condition hereof, or of any subsequent breach thereof.
Section 10.2 SEVERABILITY. If any provision of this Agreement or the
application of such provision shall be held by a court of competent jurisdiction
to be unenforceable, the remaining provision of this Agreement shall remain in
full force and effect.
Section 10.3 CAPTIONS. The captions herein are for convenience only and
shall not be considered a party of this Agreement for any purpose, including,
without limitation, the construction or interpretation of any provision hereof.
Section 10.4 NOTICES. All notices, requests, demands, claims and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given (a) if
personally delivered, when so delivered, (b) if mailed, two Business Days after
having been sent by registered or certified with return receipt requested,
postage prepaid and addressed to the intended recipient as set forth below, (c)
if given by facsimile, once such notice or other communication is transmitted to
the facsimile number specified below and the appropriate answer back or
telephonic confirmation is received, provided that such notice or other
communication is promptly thereafter mailed in accordance with the provisions of
clause (b) above or (d) if sent through an overnight delivery service in
circumstances in which such service guarantees next day delivery, the day
following being so sent:
10
(i) If to Seller:
Congress Financial Corporation (Southwest)
0000 Xxxx Xxxxxx, Xxxxx 0000
X.X. Xxx 00000
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxx Xxxxxxx
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
Copy to:
Xxxx X. "Xxxxx" Hitchery
Xxxxxx Xxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
(ii) If to Buyer:
OBB Acquisition Corp.
c/o Roller Bearing Company of America, Inc.
00 Xxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Chief Executive Officer
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
Copy to:
C. Xxxxx Xxxxxxx
XxXxxxxxx, Will & Xxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
Any party may give any notice, request, demand, claim or other communication
hereunder using any other means (including ordinary mail or electronic mail),
but no such notice, request, demand, claim or other communication shall be
deemed to have been duly given unless and until it actually is received by the
individual for whom it is intended. Any party may change the address to which
notices, requests, demands, claims and other communications hereunder are to be
delivered by giving the other parties notice in the manner herein set forth.
Section 10.5 SUCCESSORS AND ASSIGNS. Neither this Agreement nor any of the
rights or obligations arising hereunder shall be assignable without the prior
written consent of the parties
11
hereto. Nothing in this Agreement, express or implied, shall confer upon any
Person, other than the parties hereto, and their successors and permitted
assigns any rights or remedies under or by reason of this Agreement.
Section 10.6 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations, warranties, covenants and agreements made by Seller and by
Buyer, respectively, in this Agreement shall survive the Closing Date hereunder
for ninety (90) months and shall also survive and shall be unaffected by (and
shall not be deemed waived by) any investigation, audit, appraisal, or
inspection at any time made by or on behalf of Buyer.
Section 10.7 SCHEDULES AND EXHIBITS. The schedules and exhibits attached
hereto shall form a part of this Agreement and are hereby incorporated into this
Agreement by reference.
Section 10.8 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which,
together, shall constitute one and the same instrument.
Section 10.9 CONSTRUCTION OF TERMS. Any reference herein to the masculine
or neuter shall include the masculine, the feminine and the neuter, and any
reference herein to the singular or plural shall include the opposite thereof.
The parties to this Agreement acknowledge that each party and counsel to each
party has participated in the drafting of this Agreement and agree that this
Agreement shall not be interpreted against one party or the other based upon who
drafted it.
Section 10.10 ATTORNEYS' FEES AND COSTS. Unless otherwise provided herein
to the contrary, in the event any action or proceeding is commenced by any party
to this Agreement to (a) determine rights, duties or obligations under this
Agreement, (b) determine a breach of this Agreement and obtain damages as a
result of such breach or (c) otherwise enforce this Agreement, the prevailing
party in such action or proceeding shall be entitled to recover from the
non-prevailing party all of the prevailing party's out-of-pocket costs and
expenses, including, without limitation, all reasonable attorneys' fees,
disbursements and related charges. A party will be considered the prevailing
party if (i) it initiated the litigation and substantially obtains the relief it
sought, either through a judgment or arbitration award or the losing party's
voluntary action before arbitration, trial, or judgment, (ii) the other party
withdraws its action without substantially obtaining the relief it sought, or
(iii) such party did not initiate the litigation and judgment is entered into
for any party, but without substantially granting the relief sought by the
initiating party or granting more substantial relief to the non-initiating party
with respect to any counterclaim, asserted by the non-initiating party in
connection with such litigation.
Section 10.11 GOVERNING LAW. THIS AGREEMENT SHALL BE CONTROLLED, CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE LAWS AND DECISIONS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE, WITHOUT GIVING
EFFECT TO ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT REQUIRE THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
Section 10.12 FACSIMILE EXECUTION. Each counterpart of this Agreement may
be executed and transmitted by facsimile transmission. The parties will
initially accept facsimile
12
signature pages. The original documents shall be delivered by hand or courier
within one (1) Business Day of the execution of the documents. Counsel for the
parties will substitute and provide original signature pages to the other
parties as soon as they are received.
[The Remainder of this Page Intentionally Left Blank]
13
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the
day and year first above written.
SELLER: CONGRESS FINANCIAL CORPORATION
(SOUTHWEST)
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
---------------------------------------
Title: Vice President
---------------------------------------
BUYER: OBB ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
---------------------------------------
Title: Vice President
---------------------------------------
