Exhibit 10.1
RESPONSE COST SHARING AND
ALTERNATIVE DISPUTE RESOLUTION AGREEMENT
This Response Cost Sharing and Alternative Dispute Resolution Agreement
(the "Agreement") is made as of this 21st day of May, 2007, by American Biltrite
Inc., a Delaware corporation ("ABI"), and Xxxxxx Industries, Inc., a Maine
corporation ("Xxxxxx Industries") (ABI and Xxxxxx Industries being sometimes
referred to collectively as the "Parties" and individually as a "Party").
RECITALS
WHEREAS, the State of Maine, through its Department of Environmental
Protection ("MEDEP"), has alleged that there exist hazardous substances in the
groundwater, surface water, and soils at a parcel of land near Upland Road in
Lisbon, Maine (Lisbon Town Map U-17, Lot 22) (the "Bonafide Site");
WHEREAS, Xxxxxx Industries is alleged to be a potentially responsible
party ("PRP") for the alleged environmental contamination of the Bonafide Site,
pursuant to Maine's Uncontrolled Hazardous Substance Sites Law ("UHSSL"), 38
M.R.S. ss. 1362(2) and the Comprehensive Environmental Response, Compensation
and Liability Act ("CERCLA"), 42 U.S.C. ss.9607(a), as the owner of the Bonafide
Site;
WHEREAS, ABI is alleged to be a PRP for the alleged environmental
contamination of the Bonafide Site, pursuant to UHSSL and CERCLA;
WHEREAS, the Parties have incurred response costs in investigating and
containing the alleged environmental contamination of the Bonafide Site;
WHEREAS, the U.S. Environmental Protection Agency ("EPA") has alleged that
there exists a release or threatened release of a hazardous substance,
pollutant, or contaminant at a parcel of land at 0 Xxxxxx Xxxx in Lisbon, Maine
(Lisbon Town Map U-17, Lot 24) (the "Leda Site") (the Leda Site and Bonafide
Site being sometimes referred to as the "Sites");
WHEREAS, on May 9, 2005, EPA assigned the regulatory oversight of the Leda
Site to MEDEP;
WHEREAS, Xxxxxx Industries is alleged to be a PRP for the alleged
environmental contamination of the Leda Site, pursuant to UHSSL and CERCLA;
WHEREAS ABI is alleged to be a potentially responsible party for the
alleged environmental contamination of the Leda Site, pursuant to UHSSL and
CERCLA;
WHEREAS, Xxxxxx Industries has incurred response costs in investigating
and containing the alleged environmental contamination of the Leda Site; and
WHEREAS, the Parties desire to undertake certain additional response
actions at the Sites as more particularly set forth in this Agreement, in part
to avoid further enforcement activities by MEDEP and/or EPA, including the
imposition of oversight costs and/or penalties,
NOW, THEREFORE, Xxxxxx Industries and ABI hereby agree to respond to the
alleged environmental contamination of the Sites, and further to resolve and
allocate, finally, their respective liability for past and future response costs
at the Sites, as follows:
1. ENVIRONMENTAL RESPONSE AND REMEDIATION
1.1. The Parties accept the Plans (as defined and described below) as
defining the scope of work to be funded and completed pursuant to the terms of
this Agreement:
A. The March 9, 2005, Findings Report For Soil Investigation And
Remediation, Former Leda Associates Property, by Sevee & Xxxxx
Engineers, Inc. ("Sevee & Xxxxx") (attached hereto as Schedule
1.A.1), subject to comments and requirements imposed by EPA in
correspondence dated April 19, 2005 (attached hereto as Schedule
1.A.2), and by MEDEP (attached hereto as Schedule 1.A.3), and as
amended by Sevee & Maher's May 24, 2006 letter (attached hereto as
Schedule 1.A.4), and Sevee & Maher's November 8, 2006, Engineering
and Laboratory Services budget (attached hereto as Schedule 1.A.5)
(together, the "Leda Plan");
B. The September 12, 2003, Draft Report Of Site Investigation, by URS
Corporation ("URS") (attached hereto as Schedule 1.B.1), subject to
comments and requirements imposed by MEDEP in correspondence dated
March 31, 2005 (attached hereto as Schedule 1.B.2), URS's January
30, 2007, Additional Site Investigation Work Plan (attached hereto
as Schedule 1.B.3), and URS's March 19, 2007 Letter and Estimate
(attached hereto as Schedule 1.B.4) (the "Bonafide Plan") (the Leda
Plan and Bonafide Plan being sometimes referred to as "Plans" or
individually as a "Plan").
1.2. Any material change or modification, or series of changes or
modifications in the scope of work detailed in either Plan that impose
substantial additional costs on the Parties (i.e., exceeding $25,000
individually or $50,000 in the aggregate) shall be subject to further review and
Approval of the Parties. A Party shall respond to a request for Approval of such
a change or modification within ten (10) business days. As used in this
Agreement, "Approval", "Approved by the Parties" or "Approval of the Parties"
means approved in writing by each of the Parties, which approval, unless
otherwise provided herein, shall not be unreasonably withheld, delayed or
conditioned.
1.3. Subject to a final determination of the Parties' respective
allocation shares as set forth elsewhere in Article 3 below, each of Xxxxxx
Industries and ABI agrees to fund fifty percent (50%) of the budgeted costs of
the remedial investigation, feasibility study, and remediation of the Sites as
reflected in the respective Plans (the "Bonafide Site Response Costs" and "Leda
Site Response Costs", respectively; and collectively, the "Response Costs"), as
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further provided in this Section 1.3 and in Section 2.1 below. Within fifteen
(15) days following the later of the date of this Agreement and the execution
and delivery of the "Escrow Agreement" (as defined in Section 2.1 below), each
Party will fund $340,423.26, such amount representing, in total, fifty percent
(50%) of the budgeted costs to complete the Additional Site Investigation work
and any Follow-Up Investigation under the Bonafide Plan, and one hundred percent
(100%) of the budgeted costs to complete the remediation provided in the Leda
Plan. Beginning October 1, 2007 and continuing on the first day of each calendar
quarter thereafter, the Parties shall Approve a budget for the ensuing six (6)
months to complete the work anticipated to be done during such six (6) month
period, and each Party shall fund the unfunded portion of its fifty percent
(50%) share thereof within ten (10) days after such Approval.(1) Attached hereto
as Schedule 1.3 is a correct and complete list of those Response Costs incurred
and paid by Xxxxxx Industries prior to the date hereof. Within thirty (30) days
following the date of this Agreement, ABI shall reimburse Xxxxxx Industries an
amount equal to $43,582.76, representing fifty percent (50%) of those Response
Costs so listed on Schedule 1.3.
1.4. The Parties agree that Xxxxxx Industries, on behalf of the Parties,
shall work with MEDEP, EPA, and any other local, state or federal agencies with
jurisdiction over the Sites in the oversight, review, approval, and
implementation of the Plans. Xxxxxx Industries shall also oversee and supervise
the consultants and contractors engaged by the Parties to implement the Plans,
including URS Corporation, Sevee & Xxxxx, and Clean Harbors, Inc. Xxxxxx
Industries shall direct each of such consultants and contractors to prepare and
submit to the Parties progress reports on a regular basis. Such progress reports
shall describe in detail the progress made in implementing the Plans,
communications and/or meetings with local, state or federal entities with
jurisdiction over the Sites, and any other items of material interest to the
Parties. Xxxxxx Industries shall, at its election, be relieved of its
obligations under this Section 1.4 at such time (if ever) as there shall be
allocated to Xxxxxx Industries hereunder a share of responsibility for a Site
that is less than fifteen percent (15%) of the anticipated costs of responding
to the alleged contamination of that Site. Any such election by Xxxxxx
Industries shall be conditioned upon ABI and Xxxxxx Industries entering into
such agreements between themselves and with third parties (including abutters of
the Sites and others affected by the claims associated therewith), and obtaining
such consents and approvals from MEDEP, EPA and any other local, state or
federal agencies with jurisdiction over the Sites, and other interested parties,
as are necessary or appropriate for Xxxxxx Industries to be relieved of, and ABI
to assume the oversight, review, approval, and implementation of the Plans.
2. ESCROW OF LEDA SITE AND BONAFIDE SITE RESPONSE COSTS
2.1. The Parties shall fund the Response Costs by tendering their
respective contributions described in Section 1.3 above to T.D. Banknorth, N.A.
(the "Escrow Agent"), who shall hold such amounts and disburse same in
accordance with the Escrow Agent's standard-form escrow agreement (the "Escrow
Agreement"), which the Parties shall execute, completed in a manner consistent
herewith. The Parties shall bear equally the fee (if any) of the Escrow Agent.
The Escrow Agreement shall provide, inter alia, for disbursements to pay
Response Costs in accordance with the written direction(s) of the Parties.
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(1) For example: If on October 1, 2007 the Parties Approve $100,000 of Response
Costs for the period commencing on such date and ending March 31, 2008, which
amount includes $80,000 of Response Costs anticipated to be incurred during such
period and previously funded by the Parties under the first sentence of this
Section 1.3, then each Party shall, on or before October 10, 2007, tender to the
Escrow Agent $10,000 (i.e., fifty percent (50%) of the $100,000 Approved amount,
less the $80,000 previously tendered to the Escrow Agent).
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3. RESOLUTION OF PARTIES' ALLOCATIONS
3.1. Upon the responsible environmental authority's acceptance of a report
delineating the parameters of alleged environmental contamination, and approving
a proposed remedy for such contamination, including an Approved budget therefor,
for both Sites, the Parties shall make good faith efforts to reach a consensus
and agreement upon their respective final shares (each, a "Share Allocation") of
responsibility for the Response Costs. In determining the Parties' respective
Share Allocations, whether by agreement or arbitration, there shall be
separately determined the share of Response Costs allocable to one or more third
parties (each, an "Orphan Share"). If after good faith efforts to reach such
consensus and agreement carried out over a thirty (30) day period the Parties
are unable to agree upon their respective Share Allocations and, if applicable,
any Orphan Shares, for either the Bonafide Site Response Costs or the Leda
Response Costs, then either Party may submit the dispute to a sole arbitrator
selected by the Parties, or to arbitration pursuant to the Commercial
Arbitration Rules of the American Arbitration Association, such arbitration to
be administered by the American Arbitration Association's Northeast Case
Management Center. The arbitration, and the parties shall be governed by the
Federal Arbitration Act and judgment on the award may be entered by any court
having jurisdiction.
3.2. The arbitration shall occur before a single arbitrator, experienced
in environmental liability, contribution, and indemnification issues.
3.3. The arbitration hearing shall be conducted in the offices of Xxxxxxx
Xxxx, LLP in Portland, Maine.
3.4. Each Party shall bear its own legal fees and expenses and an equal
share of all costs and fees of the arbitrator.
3.4. The arbitrator shall not limit, expand or modify the terms of this
Agreement nor award damages in excess of compensatory damages, and each Party
waives any claim to such excess damages for the purposes of this Agreement. The
obligations of a Party to arbitrate a dispute hereunder shall not affect such
Party's right to seek interim protection, specific performance, or other
equitable relief regarding obligations imposed by this Agreement.
3.5. The arbitrator shall issue a written decision and award promptly
following the close of the record of the Arbitration. In determining the
respective Allocation Shares of the Parties and, if applicable, any Orphan
Shares, the Arbitrator in his decision and award shall, in both his findings and
conclusions, make separate and distinct determinations as to the Bonafide Site
and Leda Site.
3.6. The decision and award of the Arbitrator shall be final and binding
on the Parties. The Award may be entered and enforced in any state or federal
court in Maine, and the Parties agree to submit to the personal and subject
matter jurisdiction of such court.
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3.7. Within thirty (30) days following either agreement of the Parties
under Section 3.1 above, or the Arbitrator's decision and award, regarding the
respective Share Allocations of the Parties and, if applicable, any Orphan
Shares, the Parties shall pay to one another such amount as is necessary so that
each Party, giving effect to all prior payments and such final, adjusting
payment, shall have paid its finally-determined Share Allocation of
responsibility for the Response Costs. In addition, if there is determined to
exist one or more Orphan Shares, the Parties shall cooperate with one another to
seek contribution from such third parties. If contribution for any such Orphan
Share cannot be secured, then the Parties shall bear responsibility for such
Orphan Share, and any costs incurred in seeking same, in the same proportion as
their respective Share Allocations bear to one another.(2)
3.8. The subject matter, content and result of arbitration shall be held
in confidence by the Parties, and no Party shall issue any press release or make
any public announcement relating thereto without the prior written approval of
each Party; provided, however, that any Party may make any public disclosure it
believes in good faith is required by applicable law or any listing or trading
agreement concerning its publicly traded securities (in which case the
disclosing Party will use its reasonable best efforts to advise the other Party
prior to making the disclosure).
3.9. Nothing in this Section 3 shall foreclose the Parties' right to
agree, in writing, to postpone or hold in abeyance such arbitration for the
purpose of first conducting negotiations via other alternative dispute
resolution media, including mediation.
4. TERMINATION
4.1 Unless sooner terminated pursuant to the provisions of this Agreement,
this Agreement shall remain in effect until completion of the remediation work
described in the Plans and a final determination pursuant to Section 3 above of
the Parties' respective Share Allocations for the Sites.
4.2. (a) Each Party shall have the right to terminate this Agreement if
(i) the other Party materially breaches this Agreement and fails to cure such
breach to the reasonable satisfaction of the non-breaching Party within a
reasonable time (not to exceed sixty (60) days) from the date the non-breaching
Party provides the breaching Party with written notice of such breach, or (ii)
either Party suffers an act of bankruptcy which, for purposes hereof, means, as
to a Party, such Party is or becomes insolvent, makes an assignment for the
benefit of creditors, or petitions or applies for the appointment of a
liquidator, receiver, manager, trustee or custodian (or similar official) of
such Party or of any substantial part of such Party's assets, or commences any
proceeding or case relating to such party under any bankruptcy, reorganization,
arrangements, insolvency, readjustment of debt, dissolution or liquidation or
similar law of any jurisdiction, now or hereafter in effect; or (iii) if any
such petition or application is filed or any such proceeding or case is
commenced against such Party and such Party indicates its approval thereof,
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(2) For example, assume that the Arbitrator finds ABI and Xxxxxx Industries with
Share Allocations of, respectively, 60% and 20%, with the remaining Share
Allocations assigned to one or more third parties. Assume further that no
contribution can be found from any of these third parties. Therefore, the
Parties' respective Share Allocations would be increased to 75% and 25%,
respectively, bearing the same proportion as those found by the Arbitrator and
totaling 100% responsibility for the Response Costs.
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consent thereto or acquiescence therein or an order is entered appointing any
such liquidator or receiver or custodian (or similar official), or adjudicating
such Party bankrupt or insolvent, or approving a petition in any such proceeding
or a decree or order for relief is entered in respect of such Party in an
involuntary case under any bankruptcy, reorganization, arrangements, insolvency,
readjustment of debt, dissolution or liquidation or similar law of any
jurisdiction, now or hereafter in effect, and such order remains in effect for
more than thirty (30) days, whether or not consecutive.
(b) This Agreement may be terminated at any time upon the mutual
written agreement of both Parties.
4.3. Upon termination of this Agreement pursuant to Section 4.2 above,
this Agreement shall terminate and be of no further force or effect; provided,
that all provisions of this Agreement requiring or contemplating the performance
of any specific act after the termination of this Agreement, shall survive the
termination of this Agreement; and provided further, that no Party shall have
any liability hereunder of any nature whatsoever to the other Party, except for
liability for breach of this Agreement prior to any such termination and any
liability for payments arising prior to the termination of this Agreement not
previously paid.
5. REPRESENTATIONS AND WARRANTIES
5.1. Xxxxxx Industries represents and warrants to ABI that:
(a) The execution, delivery, and performance by Xxxxxx Industries of
this Agreement are within the corporate power of Xxxxxx Industries, and have
been duly authorized by all necessary action on the part of Xxxxxx Industries;
(b) This Agreement has been duly executed and delivered by Xxxxxx
Industries and constitutes the valid and binding obligation of Xxxxxx
Industries, enforceable against it in accordance with its terms; and
(c) Neither the execution and the delivery of this Agreement, nor
the consummation of the transactions contemplated hereby, will (i) violate any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any government, governmental agency, or
court to which it is subject or any provision of its charter or bylaws, or (ii)
conflict with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which it is a party or by which it is bound
or to which any of its assets is subject, except where the violation, conflict,
breach, default, acceleration, termination, modification, cancellation, failure
to give notice, would not have a material adverse effect on its financial
condition taken as a whole or on its ability to consummate the transactions
contemplated by this Agreement. There is no need for it to give any notice to,
make any filing with, or obtain any authorization, consent, or approval of any
government or governmental agency in order for the parties to consummate the
transactions contemplated by this Agreement.
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5.2. ABI represents and warrants to Xxxxxx Industries that:
(a) The execution, delivery, and performance by ABI of this
Agreement are within the corporate power of ABI, and have been duly authorized
by all necessary action on the part of ABI;
(b) This Agreement has been duly executed and delivered by ABI and
constitutes the valid and binding obligation of ABI, enforceable against it in
accordance with its terms; and
(c) Neither the execution and the delivery of this Agreement, nor
the consummation of the transactions contemplated hereby, will (i) violate any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any government, governmental agency, or
court to which it is subject or any provision of its charter or bylaws, or (ii)
conflict with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which it is a party or by which it is bound
or to which any of its assets is subject, except where the violation, conflict,
breach, default, acceleration, termination, modification, cancellation, failure
to give notice, would not have a material adverse effect on its financial
condition taken as a whole or on its ability to consummate the transactions
contemplated by this Agreement. There is no need for it to give any notice to,
make any filing with, or obtain any authorization, consent, or approval of any
government or governmental agency in order for the parties to consummate the
transactions contemplated by this Agreement.
6. NOTICES
6.1. All notices to a Party shall be addressed to such Party at the
address set forth below or to such other place as may be designated by written
notice to the other Party. Notice shall be sufficient when delivered by hand;
when sent by fax/telecopy with the original thereof posted first-class mail,
postage prepaid, within two (2) business days thereafter; when posted by Federal
Express, Express Mail, or any similar regular, receipted overnight delivery
service, postage prepaid; when posted by certified mail, return receipt
requested and postage prepaid; or when delivered by a private courier,
requesting evidence of receipt as part of its service. Any such notice shall be
addressed to the Party at its address described below, and shall be effective
when first received. Unless otherwise notified in writing, each Party shall
direct all sums payable to the other Party at its address for notice purposes.
For purposes hereof, the addresses of the Parties shall be:
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If to Xxxxxx Industries, Inc.:
Xxxxx X. Xxxxxxxx
Xxxxxx Industries, Inc.
X.X. Xxx 00 Xxxxx Xxxxxx
Xxxxxx Xxxxx, XX 00000-0000
Fax: (000) 000-0000
With a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxx & Xxxxxxxx
000 Xxxx Xxxxxx
X.X. Xxx 0000 Xxxxxxxx, XX 00000-0000 Fax: (000) 000-0000
If to American Biltrite Inc.:
American Biltrite Inc.
Attn.: Vice President & Corporate Counsel
00 Xxxxx Xxxxxx
Xxxxxxxxx Xxxxx, XX 00000-0000
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxxx, Esq.
Xxxxx & Xxxxxxxx LLP
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
7. GENERAL PROVISIONS
7.1. Each Party shall bear and pay its own attorneys' fees and costs
incurred in furthering or monitoring such Party's responses at the Bonafide Site
and/or Leda Site, and in negotiating, mediating, and/or arbitrating the Parties'
respective shares of responsibility therefor.
7.2. This Agreement shall be governed by, and construed in accordance
with, the substantive laws of the State of Maine, without regard to principles
of conflicts of laws that would require the application of the laws of another
jurisdiction.
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7.3. This Agreement shall be binding upon, and inure to the benefit of
each of the Parties hereto and their respective successors and assigns, but no
rights of a Party hereunder may be assigned, and no obligations of a Party may
be delegated without the other Party's written consent. Any other purported
assignment shall be null and void.
7.4. This Agreement and the other documents referred to herein or
delivered pursuant hereto contain the entire agreement among the Parties with
respect to the transactions contemplated hereby and supersede all prior
negotiations, commitments, agreements and understandings among them with respect
thereto.
7.5. This Agreement shall not confer any rights or remedies upon any
person other than the Parties and their respective successors and permitted
assigns.
7.6. Except as otherwise provided herein, this Agreement may be amended,
and compliance with any provision of this Agreement may be omitted or waived,
only by written agreement duly signed by the Parties hereto. No waiver by any
Party of any default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to any prior or
subsequent default, misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.
7.7. This Agreement may be executed in any number of counterparts, each
such counterpart shall be deemed to be an original instrument, and all such
counterparts together shall constitute but one agreement.
7.8. Any determination, approval or consent required of or from a Party,
regardless of whether stated to be in such Party's discretion, shall not be
unreasonably made, withheld, delayed or conditioned. Each Party shall hereafter
execute and deliver such additional and confirmatory instruments as reasonably
may be requested by the other Party hereto to carry out the intent, provisions
and purposes of the Agreement.
7.9. The Parties have participated jointly in the negotiation and drafting
of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the Parties and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the provisions of
this Agreement. Any reference to any federal, state, local, or foreign statute
or law shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. A reference to a Section,
Schedule, Exhibit or attachment will mean a Section in, or an Exhibit, Schedule
or attachment to, this Agreement, unless otherwise explicitly set forth. The
titles and headings in this Agreement are for reference purposes only and will
not in any manner limit the construction of this Agreement. Unless the context
otherwise requires, (i) a term has the meaning ascribed to it in this Agreement,
(ii) an accounting term not otherwise defined shall have the meaning ascribed to
it under generally accepted accounting principles in effect in the United
States, (iii) "or" is not exclusive, (iv) the word "including" shall mean
"including without limitation" or words to that effect, and (v) grammatical
variations of any terms defined herein have similar meanings, (vi) words in the
singular include the plural, and words in the plural include the singular, and
(vii) words importing the masculine gender shall include the feminine and neuter
genders. For the purposes of such construction, this Agreement will be
considered as a whole.
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7.10. Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof (and shall be replaced with an enforceable provision as
similar to the original as possible without being prohibited or unenforceable),
and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first written above.
XXXXXX INDUSTRIES, INC. AMERICAN BILTRITE INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Its: President Its: President
thereunto duly authorized thereunto duly authorized
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