EQUIPMENT PURCHASE AGREEMENT
THIS EQUIPMENT PURCHASE AGREEMENT, dated as of December 17, 1999 (the
"Agreement"), is made between XXXXXXXXX'X INDUSTRIAL PRODUCTS, INC., a Michigan
corporation ("Buyer"), and HARVARD INDUSTRIES, INC., a Delaware corporation, and
XXXXX-ALBION CORPORATION, a Michigan corporation (together, "Seller").
Seller is engaged in the die casting business (the "Business") at a
facility it leases in Ripley, Tennessee (the "Leased Real Property"). Buyer
desires to purchase from Seller, and Seller desires to sell to Buyer, certain of
the equipment associated with Seller's Business, on the terms and subject to the
conditions set forth in this Agreement.
ARTICLE 1 PURCHASE AND SALE OF EQUIPMENT
1.1 Agreement to Purchase and Sell Equipment. On the terms and subject to
the conditions of this Agreement, Buyer shall purchase and acquire from Seller,
and Seller shall sell, convey, assign, transfer, and deliver to Buyer, all of
the assets and property of Seller described on Exhibit 1.1 and described below
(the "Purchased Assets") which shall include 125,000 pounds of secondary type
magnesium metal ingot inventory alloyed to Specification AZ91D at the Leased
Real Property which has been produced by Spectralite, Halco, Magcorp or primary
type Chinese production. Seller shall transfer the Purchased Assets to Buyer
free and clear of all claims, liens, mortgages, security interests,
encumbrances, charges, obligations, and other restrictions. Buyer has inspected
the Purchased Assets and agrees to purchase them on an "As Is" basis regarding
their physical condition. Purchaser has requested that some other materials
remain on site at Closing. Purchases agrees to take any and all containers of
oils (including but not limited to lubricating oils, die lubricants, compressor
oils, hydraulic oils/fluids, etc.); chemicals (including but not limited to
water treatment chemicals, cooling tower treatment chemicals, process chemicals,
fluxes, etc.); maintenance items (including but not limited to paints, solvents,
building maintenance materials, floor cleaners, floor waxes, etc.); testing
laboratory chemicals; fuels (including but not limited to gasoline, kerosene,
etc.); that remain on site at date of Closing. Purchaser agrees that in the
event Purchaser does not want or need the material, any disposal of this type of
material, whether hazardous or not, will be at Purchaser's expense. Nothing
contained in this paragraph shall be deemed to limit Seller's representations,
warranties or indemnification obligations.
1.2 Purchase Price. As consideration for the transfer of the
Purchased Assets to Buyer and Seller's other convenants in this
Agreement (the "Purchase Price"), Buyer shall pay to Seller at Closing
in immediately available funds the amount of $2,325,000, less the amount
of any escrow holdback described in Section 2.3(h).
1.3 No Assumed Liabilities. Buyer shall not assume or be obligated to pay,
perform, or discharge any liability, obligation, debt, charge, or expense of
Seller of any kind, description, or character, whether accrued, absolute,
contingent, or otherwise or whether or
not disclosed to Buyer in this Agreement, the Disclosure Schedule (defined
below), or otherwise (collectively, the "Excluded Liabilities"). Without
limiting the generality of the foregoing, and notwithstanding anything to the
contrary contained in this Agreement, Buyer shall not assume or be obligated to
pay, perform, or discharge any liability, obligation, debt, charge, or expense
of Seller even if imposed upon Buyer as a successor to Seller, with respect to
any action, suit, proceeding, or claim arising out of or relating to any event
occurring, or with respect to any cause of action arising, before or after the
Closing Date, whether or not asserted before or after the Closing Date;
including any liablity, obligation, debt, charge, or expense related to taxes,
environmental matters, agreements with sales representatives, employee benefits,
obligations or policies, judgments, product warranty claims, product liability
claims, and contractual claims. Seller shall be liable for all product warranty
claims and all product liability claims arising from products shipped by Seller.
1.4 Allocation of Purchase Price. Within one hundred twenty (120) days
after the Closing Date, Buyer shall deliver to Seller a Certificate of
Allocation detailing the allocation of the Purchase Price among the Purchased
Assets and Seller's other covenants set forth in this Agreement. The Seller
shall review the Purchase Price Allocation set forth by the Buyer. The Purchase
Price Allocation as set forth must be satisfactory to both the Buyer and the
Seller. If within forty-five (45) days following delivery of its computation of
the Purchase Price Allocation, Seller has not given the Buyer written notice of
Seller's objection to the Buyer's computation of the Purchase Price Allocation,
then the Purchase Price Allocation will be final and binding on the Buyer and
the Seller. If Seller gives such notice of objection, Buyer and the Seller shall
negotiate in good faith to resolve any such disputes within fifteen (15) days
following the delivery of such objection by Seller. If Buyer and the Seller are
unable to resolve such disputes, then the issues in dispute will immediately be
submitted to a mutually agreed upon CPA Firm (the "Accountants") for resolution
within thirty (30) days after such submission. If issues in dispute are
submitted to the Accountants for resolution, (i) each party will furnish to
the Accountants such work papers and other documents and information relating to
the disputed issues as the Accountants may request and are available to that
party or its stockholders (or its independent public accountants), and will be
afforded the opportunity to present to the Accountants any material relating to
the determination of the Purchase Price Allocation as of the Closing Date and to
discuss the determination of the Purchase Price Allocation as of the Closing
Date with the Accountants; (ii) the determination of the final Purchase Price
Allocation as of the Closing Date by the Accountants, as set forth in a notice
delivered to both parties by the Accountants, will be final and binding on the
Buyer and the Seller; and (iii) Seller and the Buyer shall each bear 50% of the
fees of the Accountants for such determination. The Buyer and the Seller shall
use the agreed upon or arbitrarily assigned Purchase Price Allocation for all
income tax purposes and agree to file all required Returns (including, without
limitation, Returns required under Section 1060 of the Code) consistent with
such Purchase Price Allocation.
ARTICLE 2 CLOSING
2.1 Place and Date of Closing. The purchase and sale contemplated by
this Agreement (the "Closing") shall take place at the offices of Miller,
Johnson, Xxxxx &
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Xxxxxxxxx, P.L.C. on December 17, 1999 (which may be completed by facsimile and
a wire transfer), or at any other place, time, and date specified by either
Buyer or Seller upon five (5) business days' notice to the other, after
fulfillment or waiver of the conditions precedent set forth in this Agreement
(the "Closing Date"). The Closing shall be deemed to be effective upon the close
of business on the Closing Date.
2.2 Deliveries at Closing.
(a) Buyer's Deliveries. At the Closing, Buyer shall execute
and/or deliver, or cause to be executed and/or delivered: (i) the Cash Payment;
(ii) a closing certificate from a duly authorized officer of Buyer as required
by this Agreement; and (iii) any and all other agreements, certificates,
instruments, and other documents required of Buyer under this Agreement.
(b) Seller's Deliveries. At the Closing, Seller shall execute
and/or deliver, or cause to be executed and/or delivered: (i) bills of sale,
certificates of title, vehicle certificates, endorsements, assignments, and
other instruments of conveyance, reasonably acceptable to Buyer, that shall be
sufficient to transfer title to the Purchased Assets to Buyer; (ii) written
consents of third parties (including debt holders), if necessary, with respect
to the transfer of the Purchased Assets to Buyer and lien releases from Seller's
secured parties regarding the Purchased Assets; (iii) a closing certificate from
a duly authorized officer of Seller as required by this Agreement; and (iv) any
and all other agreements, certificates, instruments, and other documents
required of Seller under this Agreement.
2.3 Conditions to Buyer's Closing Obligations. Notwithstanding anything
to the contrary contained in this Agreement, Buyer's obligation to complete the
Closing is subject to the complete fulfillment (unless expressly waived in
writing by Buyer) of all of the following conditions at or before the Closing:
(a) Representations and Warranties; Performance. Each of the
representations and warranties of Seller contained in this Agreement shall be
true and correct in all material respects as of the date of this Agreement, and
shall be true and correct in all material respects as of the Closing Date, with
the same force and effect as if made again as of the Closing Date. Seller shall
have performed and complied in all material respects with all agreements and
conditions required by this Agreement to be performed or complied with by Seller
at or before the Closing, including the delivery of all bills of sale,
assignments, and other documents required by this Agreement to be delivered by
Seller at the Closing, all reasonably acceptable to Buyer.
(b) Closing Certificate. Buyer shall have received a certificate
reasonably acceptable to Buyer, signed by Seller and dated as of the Closing
Date, to the effect that all representations, warranties, and covenants made in
this Agreement by Seller are on the Closing Date and correct in all material
respects and that Seller has performed in all material respects the obligations,
agreements, and covenants undertaken by it, in this Agreement to be performed
on or before the Closing Date.
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(c) No Material Adverse Change. Except as contemplated by this Agreement,
there shall have been no material adverse change in the condition of the
Purchased Assets from the date of this Agreement to the Closing Date, including,
without limitation, the removal of any assets listed on Exhbit 1.1 from the
Leased Real Property.
(d) Litigation. On the Closing Date, there shall not be any pending or
threatened litigation in any court or any proceedings by or before any
governmental commission, board, agency, arbitration tribunal, or other
instrumentality with a view to seeking to restain or prohibit the consummation
of the transactions contemplated by this Agreement or in which it is sought to
obtain divestiture, recission, or damages in connection with the transactions
contemplated by this Agreement.
(e) Necessary Consents and Notices. All authorizations, consents, and
approvals by any third parties, including federal, state, local and foreign
regulatory bodies and officials, that are necessary for the consummation of the
transactions contemplated by this Agreement, shall have been received in writing
and shall be in full force and effect. All necessary filings, declarations, and
notices of Buyer and Seller with or to third parties shall also have been made
or given.
(f) Lease for Real Property. Buyer shall have entered into an agreement
with the City of Xxxxxx regarding the transfer of the lease for the Leased Real
Property in form acceptable to Buyer. Such agreement shall include an option to
purchase the Leased Real Property and an arrangement regarding pre-Closing
environmental matters on terms acceptable to Buyer.
(g) Buyer's Examination. Buyer shall be satisfied with the contents of all
exhibits, schedules, information, and other documents and materials (including
the Disclosure Schedule) and with the results of Buyer's examination of Seller,
the Purchased Assets, the condition and value of the Purchased Assets as of
Closing, and the environmental condition of the Leased Real Property.
(h) Tax Clearance Certificate. Seller shall deliver to Buyer a tax
clearance certificate from the appropriate Tennessee state authority which
states that all taxes required to be paid by Seller in Tennessee have been
paid. If such certificate is not available at Closing, $100,000 of the
Purchase Price shall be withheld by Buyer and will be delivered to Seller
within seven (7) days of receipt of such certificate from Seller.
2.4 Conditions to Seller's Closing Obligations. Notwithstanding anything to
the contrary contained in this Agreement, Seller's obligation to complete the
Closing is subject to the complete fulfillment (unless expressly waived in
writing by Seller) of all of the following conditions at or before the Closing:
(a) Representations and Warranties; Performance. Each of the
representations and warranties of Buyer contained in this Agreement shall be
true and correct in all material respects as of the date of this Agreement, and
shall be true and correct in all material respects as of the Closing Date, with
the same force and effect as if made again as of the Closing Date. Buyer shall
have performed and complied in all material respects with
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all agreements and conditions required by this Agreement to be performed or
complied with by Buyer at or before the Closing, including payment of the
Purchase Price and all other documents required by this Agreement to be
delivered by Buyer at the Closing, all reasonably acceptable to Seller.
(b) Closing Certificate. Seller shall have received a certificate
reasonably acceptable to the Seller, signed by Buyer and dated as of the
Closing Date, to the effect that all representations and warranties in this
Agreement are true and correct in all material respects as if made again on the
Closing Date and that Buyer has performed in all material respects the
obligations, agreements, and covenants undertaken by Buyer in this Agreement to
be performed on or before the Closing Date.
(c) Litigation. On the Closing Date, there shall not be any pending or
threatened litigation in any court or any proceedings by or before any
governmental commission, board, agency, arbitration tribunal, or other
instrumentality with a view to seeking, to restrain or prohibit the consummation
of the transactions contemplated by this Agreement.
ARTICLE 3 REPRESENTATIONS AND WARRANTIES
OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Disclosure Schedule. At least three (3) days before the date of this
Agreement, Seller has delivered to Buyer individually numbered schedules
(collectively, the "Disclosure Schedule") corresponding to the sections and
subsections of this Article. Each individual schedule in the Disclosure Schedule
contains exceptions to the specifically identified section and subsection
contained in this Article and sets forth each exception in reasonable detail,
with attached documentation as necessary to reasonably explain the exception.
Any exception to the representations and warranties contained in a section or
subsection of this Article is described in a separate schedule of the Disclosure
Schedule that specifically identifies the applicable section or subsection of
this Article. The Disclosure Schedule is complete and accurate in all respects.
Seller has provided Buyer with true and complete copies of all documents
referenced in the Disclosure Schedule.
3.2 Seller's Organization and Good Standing. Seller is a corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of Seller's incorporation. Seller has all requisite corporate power
and authority to own, lease, and operate the properties now owned or leased by
Seller and to carry on Seller's Business as presently conducted.
3.3 Enforceability. Seller has full capacity, power, and authority to
enter into this Agreement and to carry out the transactions contemplated by this
Agreement, and this Agreement is binding upon Seller and is enforceable against
Seller in accordance with the terms of this Agreement.
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3.4 No Conflict with Other Instruments or Proceedings. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated by this Agreement will not (a) result in the breach of any of the
terms or conditions of, or constitute a default under, Seller's corporate
charter or bylaws or any contract, agreement, lease, commitment, indenture,
mortgage, pledge, note, bond, license, or other instrument or obligation to
which Seller is now a party or by which Seller or any of Seller's properties or
assets may be bound or affected; (b) result in the imposition of any lien or
encumbrance on any of the Purchased Assets; or (c) give rise to any right of
first refusal or similar right to any third party with respect to any of the
Purchased Assets.
3.5 Absence of Certain Changes or Events. Since September 10, 1999, there
has been no adverse change in the condition of the Purchased Assets and Seller
has not (i) subjected any of the Purchased Assets to any claim, lien, mortgage,
security interest, encumbrances, charge, or other restriction; or (ii) sold,
transferred, or otherwise disposed of any of the Purchased Assets.
3.6 Taxes. Seller has paid all taxes and assessments due and payable by
Seller relating to the Purchased Assets.
3.7 Personal Property. Seller has good and marketable title to all
of Purchased Assets, subject to no security interest, mortgage, pledge,
lien, encumbrance, charge, obligation, assignment, leasing, or other
restriction. All personal property included in the Purchased Assets will
be in the possession of Seller on the Closing Date.
3.8 Employee Relations. Seller is not a party to any written or oral,
express or implied, collective bargaining agreement or other contract,
agreement, or arrangement with any labor union or any other similar arrangement
at the Leased Real Property, and Seller has no knowledge of any current union
organizing activity at the Leased Real Property. Seller represents to Buyer
that the Worker Adjustment and Retraining Notification Act, 29 U.S.C. Section
2101 et seq. ("WARN"), or any other similar state, local or foreign statute or
government regulation or ordinance, is either inapplicable to the transactions
contemplated in this Agreement or Seller has fully complied with all those
statutes.
3.9 Environmental Matters.
(a) Definitions. For purposes of this Agreement: (i) "Environmental
Claim" means any claim, action, cause of action, investigation, or notice
(written or oral) by any person or entity alleging potential liability
(including potential liability for investigatory costs, cleanup costs,
governmental response costs, natural resources damages, property damages,
personal injuries, or civil or criminal penalties) arising out of or resulting
from (A) the actual or alleged presence or release into the environment of any
Hazardous Material (defined below) at any location, whether or not owned or
operated by Seller, (B) circumstances forming the basis of any actual or
alleged violation of any Environmental Law, or (C) a consent order, consent
decree, judgment, government order or notice; (ii) "Environmental Laws" means
all federal, state, local, and foreign laws, regulations, ordinances, rules,
standards, and common law principles of tort liability relating to protection
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of human health or the environment (including ambient air, surface
water, ground water, wetlands, land surface, subsurface strata, and
indoor and outdoor workplace), remediation of the environment (including
the Comprehensive Environmental Response, Compensation, and Liability
Act, and all other analogous federal and state laws), management
(including transportation, storage, treatment and disposal) of solid or
hazardous waste (as defined by the Resource Conservation and Recovery
Act, and all other analogous federal and state laws); (iii) "Hazardous
Material" means any contaminant, pollutant, waster, petroleum, petroleum
product, genetically modified organism, chemical or other substance
defined, designated, or classified as hazardous, toxic, radioactive, or
dangerous, or that is otherwise regulated by any Environmental Law; and
(iv) "CONTAMINATION" means the presence of any Hazardous Material in,
on, or under the air, soil, groundwater, or surface water, that may
result in an Environmental Claim.
(b) Compliance. To Seller's knowledge, Seller is, and has been, in
full compliance with all applicable Environmental Laws regarding the
Leased Real Property and its operations there, which compliance includes
(i) Seller's possession of all permits and other governmental
authorization required under applicable Environmental Laws, and
compliance with the terms and conditions thereof, at the Leased Real
Property and (ii) compliance with notification, reporting, and
registration provisions of the Toxic Substances Control Act, Federal
Insecticide, Fungicide, and Rodenticide Act, and other federal, state,
local, and foreign laws that may apply to Seller's manufacture,
importation, processing, use, and other handling of chemical substances
at the Leased Real Property.
(c) Notices and Permits. Seller has not received any
communication (written or oral), whether from a governmental authority,
citizens group, employee, or otherwise, that alleges that Seller is not
or was not in full compliance with the Environmental Laws at the Leased
Real Property and, to Seller's knowledge, there are no circumstances
that may prevent or interfere with full compliance in the future. All
permits, governmental authorizations, and compliance schedules currently
held by Seller pursuant to the Environmental Laws regarding the Leased
Real Property are identified in the Disclosure Schedule.
(d) Environmental Claims. To Seller's knowledge, there is no
Environmental Claim existing, pending, or threatened against Seller
regarding the Leased Real Property. There are no past or present
actions, activities, circumstances, conditions, events, or incidents
caused by Seller, including the release, emission, discharge, presence
or disposal of any Hazardous Material, that could form the basis of any
Environmental Claim against Seller regarding the Leased Real Property.
(e) Real Property. Without in any way limiting the generality of
the foregoing: (i) to Seller's knowledge, the Leased Real Property is
not listed on or is being considered for listing on any list of
contaminated sites maintained under any Environmental Law or is subject
to or is being considered for enforcement action under any Environmental
Law, and of the Leased Real Property has not been designated as an area
under the control of any conservation authority; (ii) to Seller's
knowledge, the Leased Real Property is free of Contamination; (iii) to
Seller's knowledge, no underground storage tanks, receptacles, or
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other similar containers or depositories are, or ever have been, present on the
Leased Real Property; (iv) to Seller's knowledge, none of the buildings,
building components, structures, or improvements that are part of this
transaction is constructed in whole or in part of any material that, in its
present form, releases or may release any substance, whether gaseous (including
radon gas), liquid, or solid, that may give rise to an Environmental Claim,
including asbestos; (v) to Seller's knowledge, there have been no investigations
conducted, or other proceedings taken or threatened by any governmental body or
any other person pursuant to any Environmental Law with respect to the Leased
Real Property or the Purchased Assets; (vi) to Seller's knowledge, no
polychlorinated biphenyls (PCB's) were ever used, stored or disposed of at any
of the Leased Real Property; (vii) there is no consent decree, consent order, or
other agreement to which Seller is a party in relation to any environmental
matter and no agreement is necessary for Seller's continued compliance with all
Environmental Laws at the Leased Real Property; (viii) to Seller's knowledge,
Seller has not caused any contamination on the Leased Real Property and no
Hazardous Material or any other material was used, generated, emitted,
transported, stored, treated, or disposed of by Seller in violation of any
Environmental Law or which may result in any Environmental Claim regarding the
Leased Real Property; or (ix) Seller has not disposed of, permitted the disposal
of, or knows of the disposal of any Hazardous Material on the Leased Real
Property.
3.10 Litigation. There is no suit, action, proceeding (legal,
administrative, or otherwise), claim, investigation, or inquiry (by an
administrative agency, governmental body, or otherwise) pending or threatened
by, against, or otherwise affecting Seller regarding the Purchased Assets or the
Leased Real Property, and to Seller's knowledge there is no factual basis upon
which any such suit, action, proceeding, claim, investigation, or inquiry could
be asserted or based.
3.11 Accuracy of Statements. No representation or warranty made by Seller
in this Agreement, or any written statement, certificate, or schedule furnished,
or to be furnished, to Buyer pursuant to this Agreement contains or will
contain any untrue statement of a material fact. The representations and
warranties of Seller shall be deemed to be made as of the date of this Agreement
and again as of the Closing Date.
ARTICLE 4 BUYER'S REPRESENTATIONS AND WARRANTIES
Buyer represents and warrants to Seller as follows:
4.1 Buyer's Organization and Good Standing. Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Michigan.
4.2 Enforceability. Buyer has full capacity, power, and authority to
enter into this Agreement and to carry out the transactions contemplated by this
Agreement, and this Agreement is binding upon Buyer and is enforceable against
Buyer in accordance with the terms of this Agreement.
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ARTICLE 5 COVENANTS
5.1 Employees.
(a) Offers of Employment. Buyer has no obligation to hire or offer
employment to any of Seller's employees. However, Buyer is free, without
obligation, to interview, seek employment applications from, and employ any of
Seller's former employees.
(b) Employee Benefit Plans or Other Obligations. With respect to any
employee of Seller hired by Buyer, Buyer shall not assume, honor, or be
obligated to perform, and Seller shall remain solely responsible for, any
duties, responsibilities, commitments, or obligations of Seller with respect to
any qualified or non-qualified employee benefit plan presently maintained by
Seller or for the benefit of Seller's employees or any contract or commitment
concerning any of Seller's employees. The terms and conditions of employment, if
any, offered by Buyer to any former employee of Seller shall be determined by
Buyer in Buyer's sole discretion.
5.2 Pre-Closing and Post-Closing Access. During the period from the date
of this Agreement to the Closing Date, Seller shall permit Buyer and Buyer's
designated representatives and agents free access to the buidings, offices,
records, and files, for the purpose of conducting an investigation of the
Purchased Assets and the Leased Real Property. For a period of ninety (90) days
after the Closing Date, Buyer shall permit Seller and Seller's designated
representatives and agents reasonable access to the Leased Real Property for
any reason or purpose including removing assets which are not purchased assets.
5.3 Disclosure of Breaches. Buyer and Seller shall promptly notify the
other of the occurrence of any event or condition that could reasonably be
expected to adversely affect the ability of any party to perform fully the
transactions comtemplated by this Agreement or to make that party's respective
representations and warranties set forth in this Agreement not be materially
true and correct at the Closing.
5.4 Further Assurances. Buyer and Seller shall execute all documents and
take all further actions as may be reasonably required or desirable to carry out
the provisions of this Agreement and the transactions contemplated by this
Agreement at or after the Closing to evidence the consummation of the
transactions contemplated pursuant to this Agreement. Upon the terms and subject
to the conditions of this Agreement, Buyer and Seller shall take all actions and
do, or cause to be done, all other things necessary, proper, or advisable to
consummate and make effective as promptly as practicable the transactions
contemplated by this Agreement and obtain in a timely manner all necessary
waivers, consents, and approvals, and to effect all necessary registrations and
filings.
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ARTICLE 6 INDEMNIFICATION
6.1 Indemnity. Seller shall, defend, indemnify, and hold harmless Buyer
and Buyer's affiliates, and their respective directors, officers, employees,
shareholders, representatives, agents, successors and assigns, against and with
respect to any and all loss, cost, damage, assessment, administrative fine or
penalty, decrease in value, liability, obligation, claim, expense (including
professional fees and similar expenses), or deficiency (collectively, the
"Indemnified Losses") from, resulting by reason of, or arising in connection
with: (a) any and all liabilities of Seller of any nature, whether accrued,
absolute, contingent, or otherwise (including any Excluded Liabilities, tax,
severence/pension benefits, workers' compensation claims, and environmental
liabilities); (b) facts, circumstances, or events constituting an inaccuracy,
misrepresentation, breach, or nonperformance of any representation, warranty,
covenant, undertaking, condition, or agreement made or to be performed by Seller
pursuant to this Agreement or any document delivered to Buyer in the
consummation of the transactions contemplated by this Agreement, regardless of
whether the inaccuracy, misrepresentation, breach, or omission was deliberate,
reckless, negligent, innocent, or unintentional; (c) any failure to comply with
any applicable bulk sale or transfer laws relating to this Agreement and any
claims against Buyer by creditors of Seller; (d) any claim relating to any
failure to comply with WARN or any similar federal, state, local, or foreign
plant closing law, whether asserted against Buyer or Seller, arising from the
transactions set forth in this Agreement; (e) any claims asserted by current or
former employees of Seller (who are not employed by Buyer after the Closing
Date) for benefits pursuant to COBRA, whether the claim is asserted against
Buyer or Seller; (f) any pollution or threat to human health or the environment
that is directly related to Seller's management, use, control, ownership or
operation of the Purchased Assets or the Leased Real Property, including all
on-site and off-site activities involving Hazardous Material, and that occurred,
existed, arises out of conditions or circumstances that occurred or existed, or
was caused, on or before the Closing Date, whether or not the pollution or
threat to human health or the environment is described in the Disclosure
Schedule or is known to Seller and Buyer; and (g) any use of the Purchased
Assets and the conduct of the Business by Seller on or before the Closing Date,
including any environmental related matters arising from Seller's actions,
inactions, or events occurring on or before the Closing Date.
6.2 Indemnification Period. Buyer's right to seek indemnification under
this Article shall survive for a period of three (3) years from the Closing Date
(the "Indemnity Period"), except that the Indemnity Period shall not expire, but
shall survive forever, for claims with respect to representations, warranties,
covenants, and agreements relating to unencumbered title to the Purchased
Assets, and the representations, warranties, covenants, and agreements regarding
taxes, environmental matters, and the enforceability of this Agreement. The
making of a claim for indemnification under this Agreement shall toll the
running of the limitation period with respect to that claim. For purposes of the
preceding sentence, a claim shall be deemed made upon the commencement of an
independent judicial proceeding with respect to the matter underlying the claim
or receipt by the Seller of a written notice of claim setting forth the amount
of the claim (if known by Buyer) and a general description of the facts
underlying the claim.
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6.3 Third-Party Claims. If after the Closing Date Seller or Buyer
(in either case, the "Indemnitee") shall receive notice of any third
party claim or alleged third party claim asserting the existence of any
matter of the nature as to which the Indemnitee has been indemnified
against under this Article VI by the other parties hereto
("Indemnitor"), Indemnitee shall promptly notify Indemnitor in writing
with respect thereto. Indemnitor shall have the right to defend against
any such claim provided (i) Indemnitor shall, within 10 days after the
giving of such notice by Indemnitee, notify Indemnitee that it disputes
such claim, giving reasons therefor, and that Indemnitor will, at its
own cost and expense, defend the same, and (ii) such defense is
instituted and continuously maintained in good faith by Indemnitor. In
such event the defense may, if necessary, be maintained in the name of
Indemnitee. Indemnitee may, if it so elects, designate its own counsel
to participate with the counsel selected by Indemnitor in the conduct of
such defense at its own expense. Indemnitor shall not permit any lien or
execution to attach to the assets of the Indemnitee as a result of such
claim, and the Indemnitor shall provide such bonds or deposits as shall
be necessary to prevent the same. In any event Indemnitee shall be kept
fully advised as to the status of such defense. If Indemnitor shall be
given notice of a claim and shall fail to notify Indemnitee of its
election to defend such claim within 10 days, or after having so elected
to defend such claim shall fail to institute and maintain such defense
in accordance with the foregoing, or if such defense shall be
unsuccessful, then, in any such event, the Indemnitor shall fully
satisfy and discharge the claim within 10 days after notice from
Indemnitee requesting Indemnitor to do so. No Indemnitor shall settle
any such claim without the prior written consent of the Indemnitee,
which consent shall not be unreasonably withheld.
6.4 Remedies Cumulative. The remedies provided in this Article
are cumulative and shall not prevent the assertion by Buyer of any other
rights or the seeking of any other remedies against Seller.
ARTICLE 7 TERMINATION
7.1 Termination Events. This Agreement may, by notice given before or at
the Closing, be terminated: (a) by either Buyer or Seller if a material breach
of any provision of this Agreement has been committed by the other party and the
breach has not been waived; (b) by Buyer if any of the conditions precedent to
Buyer's closing obligations have not been satisfied as of the Closing Date or if
satisfaction of a condition is or becomes impossible (other than through the
failure of Buyer to comply with Buyer's obligations under this Agreement) and
Buyer has not waived the condition on or before the Closing Date; (c) by Seller
if any of the conditions precedent to Seller's closing obligations have not been
satisfied as of the Closing Date or if satisfaction of a condition is or becomes
impossible (other than through the failure of Seller to comply with Seller's
obligations under this Agreement) and Seller has not waived the condition on or
before the Closing Date; (d) by mutual consent of Buyer and Seller or (e) by
either Buyer or Seller if the Closing has not occurred (other than through the
failure of any party seeking to terminate this Agreement to
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comply fully with that party's obligations under this Agreement) on or before
December 31, 1999, or any later date as the parties may agree.
7.2 Termination Procedure and Effect. If this Agreement is terminated
pursuant to this Article, the party or parties so electing to terminate shall
give written notice to that effect to the other party or parties, and this
Agreement shall terminate and the transactions contemplated by this Agreement
shall be abandoned without further action by either party. Buyer shall then
return to Seller all documents and copies and other materials received by Buyer.
If this Agreement is terminated other than pursuant to a breach by Buyer or by
Seller, the parties shall have no further duties, obligations, or rights to or
against each other except for the provisions of this Agreement relating to
confidentiality and use of confidential or proprietary information. If this
Agreement is terminated pursuant to a breach of this Agreement by Buyer, Seller
shall have the right to pursue any rights and remedies as Seller may have, at
law or in equity, against Buyer with respect to the breach. If this Agreement is
terminated pursuant to a breach of this Agreement by Seller, Buyer shall have
the right to pursue any rights and remedies as Buyer may have, at law or in
equity, against Seller with respect to the breach.
ARTICLE 8 GENERAL
8.1 Survival Of Representations, Warranties, Covenants, and Indemnities.
Subject to the limitation of the Indemnity Period described above, all
representations, warranties, covenants, and indemnities made by any party to
this Agreement shall survive the Closing and any investigation at any time made
by or on behalf of any party before or after the Closing. No investigation by
Buyer shall in any way affect Buyer's right to rely on the representations,
warranties, and covenants of Seller set forth in this Agreement or any document
related to this Agreement.
8.2 Assignment and Benefits. No party to this Agreement may assign or
transfer this Agreement, either directly or indirectly, by merger, liquidation,
consolidation, sale of stock, change of control, operation of law, or other
means, without the prior written consent of all parties of this Agreement,
except that Buyer may assign all or part of Buyer's interest in this Agreement
to one or more persons or entities controlling, controlled by, or under common
control with Buyer. Any assignment of the obligations of this Agreement shall
not release the assignor or any guarantor from the duty to perform that person's
obligations under this Agreement. This Agreement shall be binding upon, inure to
the benefit of, and be enforceable by and against the respective successors and
permitted assigns of each of the parties to this Agreement.
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8.3 Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given when delivered, sent by telecopy, or sent by express delivery service with
charges prepaid and receipt requested, or, if those services are not reasonably
available, mailed (postage prepaid) by certified mail with return receipt
requested:
To Buyer at: With a copy to:
XxxXxxxxx'x Industrial Products, Inc. Miller, Johnson, Xxxxx & Xxxxxxxxx
0000 00xx Xxxxxx XX 000 Xxxxxx Xxxxx Xxxxxxxx
Xxxxxxxx, XX 00000 000 Xxxxxx Xxxxxx XX
Fax: (000) 000-0000 Xxxxx Xxxxxx, XX 00000
Attn: Xxxxxx X. XxxXxxxxx Fax: (000) 000-0000
Attn: J. Xxx Xxxxxx
To Seller at:
Harvard Industries
0 Xxxxxx Xxx
Xxxxxxx, XX 00000
Attn: D. Xxxxx Xxxxxx
Fax: (000) 000-0000
Any party may change that party's address by prior written notice to
the other parties.
8.4 Expenses. Each party to this Agreement shall pay that party's
respective expenses, costs, and fees (including professional fees) incurred in
connection with the negotiation, preparation, execution, and delivery of this
Agreement and the consummation of the transactions contemplated by this
Agreement. Seller shall pay the cost of any conveyance, transfer, excise,
storage, sales, use, recording, or similar taxes or fees, if any, arising out of
the sale, transfer, conveyance, or assignment of the Purchased Assets to Buyer.
8.5 Entire Agreement. This Agreement, and the exhibits and schedules
(including the Disclosure Schedule) to this Agreement (which are incorporated in
this Agreement by reference), and the agreements referred to in this Agreement,
contains the entire agreement and understanding of the parties and supersede all
prior agreements, negotiations, arrangements, and understandings relating to the
subject matter of this Agreement.
8.6 Amendments and Waivers. This Agreement may be amended, modified,
superseded, or canceled, and any of the terms, covenants, representations,
warranties, or conditions of this Agreement may be waived, only by a written
instrument signed by each party to this Agreement or, in the case of a waiver,
by or on behalf of the party waiving compliance. The failure of any party at any
time to require performance of any provision in this Agreement shall not affect
the right of that party at a later time to enforce that or any
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other provision. No waiver by any party of any condition, or or any breach of
any term, covenant, representation, or warranty contained in this Agreement, in
any one or more instances, shall be deemed to be a further or continuing waiver
of any condition or of any breach of any other term, covenant, representation,
or warranty.
8.7 No Third-Party Beneficiaries. The provisions of this Agreement are
solely between and for the benefit of the respective parties to this Agreement,
and do not inure to the benefit of, or confer rights upon, any third party,
including any employee of Buyer or Seller.
8.8 Severability. Except as otherwise specifically provided in this
Agreement, this Agreement shall be interpreted in all respects as if any
invalid or unenforceable provision were omitted from this Agreement. All
provisions of this Agreement shall be enforced to the full extent permitted by
law.
8.9 Headings. The headings of the sections and subsections of this
Agreement have been inserted for convenience of reference only and shall not
restrict or modify any of the terms or provisions of this Agreement.
8.10 Governing Law. This Agreement shall be governed by, and interpreted
and enforced in accordance with, the laws of the State of Michigan, as applied
to contracts made and to be performed in that state, without regard to
conflicts of law principles.
8.11 Counterparts. This Agreement may be signed in original or by fax in
counterparts, each of which shall be deemed to be an original, and the
counterparts shall together constitute one complete document.
8.12 Seller. Harvard Industries, Inc. and Xxxxx-Albion Corporation shall
be jointly and severally liable for the obligations of Seller under this
Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK.]
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Signed by the parties.
XXXXXXXXX'X INDUSTRIAL HARVARD INDUSTRIES, INC.
PRODUCTS, INC.
By By /s/ D. Xxxxx Xxxxxx
-------------------------- ------------------------------
Its Its Vice President
----------------------- ---------------------------
"Buyer" "Seller"
XXXXX-ALBION CORPORATION
By /s/ D. Xxxxx Xxxxxx
-------------------------------
Its Vice President
----------------------------
"Seller"
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