AGREEMENT
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THIS AGREEMENT is made on March 18, 1998, between Milford
Manufacturing Corporation, a Michigan corporation (referred to as "MMC" and
"Seller") and Xxxxxx-Xxxxx Company, a Delaware corporation ("Buyer").
RECITALS
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A. On October 31, 1996, Milford Manufacturing Corporation ("MMC")
purchased from Xxxxxx-Xxxxx ("K-H") a business engaged in the manufacture and
sale of machined fluid valve products for use in the production of fluid
valve bodies for the automobile industry ("Business").
B. MMC and K-H have decided that K-H shall re purchase some of the
assets and assume some of the liabilities from MMC.
AGREEMENTS
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NOW, THEREFORE, in consideration of the background and
pursuant to the terms and conditions set forth in this Agreement, Seller
agrees to sell and the Buyer agrees to purchase the Business and related real
estate as follows:
1. Assets Purchased. At Closing, Seller shall sell, assign, convey,
transfer, set over, and deliver to Buyer all of the assets described below
which are owned by Seller and used in the production of fluid valve bodies
for K-H (collectively, the "Purchased Assets").
1.1 Definition of Purchased Assets. For purposes of this
Agreement, the term Purchased Assets shall be defined as including
only the following:
1.1.1 Real Property. The real property listed in Schedule 1.1.1.
1.1.2 Tangible Personal Property. All tangible personal
property listed in Schedule 1.1.2
2. Liabilities Assumed. Seller agrees that Buyer assumes no liabilities of
Seller, whether accrued, absolute, contingent, known, unknown, or otherwise,
except that Buyer agrees to assume as of the Closing Date, and thereafter
pay, perform and discharge the following liabilities ("Assumed Liabilities"):
2.1 Real Properties. Seller's obligations and liabilities relating
to the real properties listed in Schedule 1.1.1, provided that
utility charges, prepaid charges and real property taxes will be
pro-rated to the Closing Date.
2.2 Tangible Personal Properties. Seller's obligations and
liabilities relating to the tangible personal properties listed in
Schedule 1.1.2, provided that utility charges, prepaid charges and
personal property taxes will be pro-rated to the Closing Date.
2.3 Pension Underfunding. Buyer and Seller are parties to an
agreement entitled Pension Plan Succession Agreement, which
agreement is incorporated by reference and attached hereto as
Schedule 2.3, and which provides for the handling of pension assets,
funding, and liabilities o the Business' Pension Plan for Bargaining
Unit Employees.
2.4 Environmental. Buyer shall assume and pay, and indemnify Seller
(pursuant to the terms and conditions of Section 9) for any
environmental issues, which arise in connection with, or concerning
the Purchased Assets (including real estate) under any Relevant
Environmental Law. For the purpose of this Agreement, "Relevant
Environmental Laws" shall mean all applicable federal, state and
local rules, regulations, orders and determinations by any judicial,
legislative or executive body of any governmental entity, including
those occurring in the future, with respect to: (a) the
installation, existence or removal of, or exposure to, asbestos at
the Premises, (b) the existence on, discharge or release from, or
removal from the Premises of any hazardous wastes and the disposal
thereof, (c) adverse effects on the environment occurring by reason
of activities conducted on the Premises and (d) adverse effects on
the environment that are manifested on the Premises occurring from
other sources or unknown sources. Such laws shall include, without
limitation, the Comprehensive Environmental Response, Compensation
and Liability Act, 41 USC 9601 et seq.; (as amended by the Superfund
Amendments and Reauthorization Act); the Emergency Planning and
Community Right-to-Know- Act, 42 USC 11001 et seq.; the Resource
Conservation and Recovery Act, 42 USC 691 et seq.; the National
Environmental Policy Act, 42 USC 4321 et seq.; the Safe Drinking
Water Act, 42 USC 300 f et seq.; the Toxic Substance Control Act, 15
USC 2601 et seq.; the Clean Air Act, 42 USC 7401 et seq.;
regulations promulgated in connection with the foregoing;
regulations pertaining to asbestos, including 40 CFR Part 61,
Subpart M and 29 CFR 1910.1001 and 1926, 58; and any state, local or
foreign laws or regulations pertaining to the environment.
3. Purchase Price for Purchased Assets.
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3.1 The Purchase Price. In addition to the Assumed Liabilities, the
purchase price to be paid by Buyer to Seller for the Purchased
Assets (the "Purchase Price") shall be $3,000,000.00.
3.2 Payment of Purchase Price. Buyer shall pay the Purchase Price on
the Closing Date as follows:
3.2.1 Payment at Closing. At Closing, Buyer shall pay
the Purchase Price by wire transfer of immediately
available funds to the account of and/or for the
benefit of Seller as directed at Closing. Seller
may instruct Buyer to pay jointly to Seller and to
Seller's creditor(s) to facilitate the release of
certain liens against the Purchased Assets.
3.3 Allocation of Purchase Price. The Purchase Price shall be
allocated among the Purchased Assets in accordance with attached
Schedule 3.3. Buyer and Seller agree to execute and deliver at the
Closing duplicate IRS Forms 8594, with an allocation of the Purchase
Price in accordance with this Section 3.3 which is mutually
acceptable to both
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parties, and to file all other returns and reports in a manner
consistent with the allocations in this Section.
4. Delivery Free of Encumbrances. Seller shall deliver good title to the
Purchased Assets free and clear of all mortgages, liens, and security
interests ("Encumbrances"). Additionally, Seller shall provide Buyer a
commitment of title insurance from a reputable title insurance company. If
Buyer objects, in writing, to the condition of title, Seller shall have
thirty (30) days to correct the problem.
5. Preclosing Actions. Before the Closing:
5.1 Conduct of Business. Seller shall carry on and conduct the
Business in the ordinary course consistent with past practices.
5.2 Buyer's Access. From the date of this Agreement through the
Closing, Seller shall permit Buyer and its representatives to make a
full business, financial, accounting, and legal audit of the
Purchased Assets, and the Assumed Liabilities. Seller shall take all
reasonable steps necessary to cooperate with Buyer in undertaking
this audit.
6. Closing Matters.
6.1 Closing. The closing of the transactions contemplated in this
Agreement (the "Closing") shall take place at the offices of Xxxxx
and Xxxxx, P.C., 0000 Xxxx Xxx Xxxxxx, Xxxxx 000, Xxxx, Xxxxxxxx at
10:00 a.m. on Monday, March 16, 1998 or at such other place and/or
on such other date as the parties may agree on (the "Closing Date").
6.2 Certain Closing Expenses; Prorations. Seller shall be liable for
and shall pay all federal, state, and local sales, use, excise, and
documentary stamp taxes and all other taxes, duties, or other like
charges properly payable on and in connection with Seller's
conveyance and transfer of the Purchased Assets to Buyer. Personal
and real property taxes, utility charges (including electricity,
gas, water, sewer, and telephone) refuse collection, and other
service contracts whether or not assumed by Buyer shall be prorated
ratably, using the fiscal period method as though said items were
paid in advance, as of the Closing Date. To the extent practicable,
all such prorations shall be computed and paid at the Closing, and
to the extent not practicable, as soon as practicable thereafter.
Title insurance shall be the Buyer's cost.
7. Seller's Representations and Warranties. As of the date of this
Agreement and as of the Closing, the Seller represents and warrants to Buyer,
and acknowledges and confirms, that Buyer is relying on these representations
and warranties in entering into this Agreement:
7.1 Organization and Standing. Seller is a corporation duly
organized, validly existing, and in good standing under the laws of
the State of Michigan, and Seller has all requisite power and
authority (corporate and otherwise) to own its properties and
conduct its business as it is now being conducted.
7.2 Authorization. Seller has all requisite power and authority
(corporate and otherwise), and has all requisite legal capacity (a)
to execute, deliver, and perform this Agreement, to which it is a
party and (b) to consummate the transactions contemplated under this
Agreement. Seller has taken all necessary corporate action
(including the approval of its board of directors and shareholders)
to approve the execution, delivery,
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and performance of this Agreement to be executed and delivered by it
and the consummation of the transactions contemplated in this
Agreement. The Seller has duly executed and delivered this
Agreement. This Agreement, when executed and delivered, will create,
legal, valid, and binding obligations of the Seller, enforceable
against it, except as such enforcement may be limited by bankruptcy,
insolvency, moratorium, or similar laws relating to the enforcement
of creditors' rights.
7.3 Existing Agreements and Governmental Approvals.
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7.3.1 Existing Agreements. To the Seller's knowledge, the
execution, delivery, and performance of this Agreement and
the consummation of the transactions contemplated by them:
(i) do not and will not violate any provisions of law
applicable to the Seller or the Purchased Assets; (ii) do
not and will not conflict with, result in the breach or
termination of any provision of, or constitute a default
under (in each case whether with or without the giving of
notice or the lapse of time or both) Seller's Articles of
Incorporation or Bylaws, or any indenture, mortgage, lease,
deed of trust, or other instrument, contract, or agreement
or any order, judgment, arbitration award, or decree to
which the Seller is a party or by which any of them or any
of their respective assets and properties are bound which
would not be paid at closing (including, without
limitation, the Purchased Assets); and (iii) do not and
will not result in the creation of any Encumbrance on any
of the Seller's properties or assets (including, without
limitation, the Purchased Assets).
7.3.2 Approvals. Except as separately scheduled, no
approval, authority, or consent of, or filing by, the
Seller with, or notification to, any federal, state, or
local court, authority, or governmental or regulatory body
or agency or any other corporation, partnership,
individual, or other entity is necessary (i) to authorize
the execution and delivery of this Agreement or any of the
related agreements by Seller, (ii) to authorize the
consummation of the transactions contemplated by this
Agreement, or (iii) to continue Buyer's use and operation
of the Purchased Assets after the Closing Date.
7.4 Title to Purchased Assets. Seller is the sole and absolute owner
of the Purchased Assets and has good title to all of the Purchased
Assets which at Closing shall be free and clear of any and all
Encumbrances. Buyer is not acquiring any of the equipment, related
fixtures, related inventory, tooling, and related supplies being
used by Seller in producing its DRA, Allied, or Delphi jobs.
7.5 Condition of Purchased Assets. Buyer has examined the Purchased
Assets and is accepting them in "as is" condition, without
representation or warranty from Seller of any kind other than
warranty of title with respect to the period of Seller's ownership
only.
7.6 No Brokers. Seller has not engaged, and is not
responsible for any payment to, any finder, broker, or consultant in
connection with the transactions contemplated by this Agreement.
8. Buyer's Representations and Warranties. Buyer represents and
warrants to Seller that:
8.1 Organization and Standing. Buyer is a corporation duly organized
and validly
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doing business under the laws of the State of Delaware, and Buyer
has all the requisite power and authority (corporate and otherwise)
to own its properties and to conduct its business as it is now being
conducted.
8.2 Authorization. Buyer has taken all necessary corporate action
(a) to duly approve the execution, delivery, and performance of this
Agreement, and (b) to consummate any related transactions. Buyer has
duly executed and delivered this Agreement. This Agreement, when
executed and delivered, will create legal, valid, and binding
obligations of Buyer, enforceable against Buyer in accordance with
its terms, except as such enforcement may be limited by bankruptcy,
insolvency, moratorium, or similar laws relating to the enforcement
of creditor's rights.
8.3 Environmental and Other Matters. Buyer is aware of the
environmental condition of the Purchased Assets and agrees to accept
the same "as is". Further, K-H has in place certain environmental
and other commitments under an Acquisition Agreement between Seller
and Buyer, effective October 31, 1996; nothing within this Agreement
shall modify, change, or supersede any environmental or any other
non-environmental commitment(s) that survived the closing of the
Acquisition Agreement.
9. Indemnification. All of the representations and warranties of Seller in
Section 7 of this Agreement shall survive the Closing (unless the Buyer knew
of any misrepresentation or breach of warranty at the time of Closing) and
continue in full force and effect for a period of one year thereafter. All of
the other representations and warranties of the Buyer and the Seller
contained in this Agreement shall survive the Closing (unless the damaged
Party knew of any misrepresentation or breach of warranty at the time of
Closing) and continue in full force and effect forever thereafter subject to
any applicable statutes or limitations.
9.1 Seller Breach and Indemnification. In the event Seller breaches any
of its representations, warranties, and covenants contained in this
Agreement, and Buyer makes a timely written claim for
indemnification against Seller, then Seller agrees to indemnify the
Buyer from and against the entirety of any Adverse Consequences the
Buyer shall suffer through and after the date of the claim for
indemnification (but excluding any Adverse Consequences the Buyer
shall suffer after the end of any applicable survival period) caused
proximately by the breach. Seller agrees to indemnify the Buyer from
and against the entirety of any Adverse Consequences the Buyer shall
suffer caused proximately by any liability of Seller, which is not
an Assumed Liability.
9.2 Buyer Breach and Indemnification. In the event the Buyer breaches
any of its representations, warranties, and covenants (including
environmental covenants in Section 2.4) contained in this Agreement,
and Seller makes a timely written claim for indemnification against
the Buyer, then the Buyer agrees to indemnify Seller from and
against the entirety of any Adverse Consequences the Seller shall
suffer through and after the date of the claim of indemnification
caused proximately by the breach. Buyer agrees to indemnify Seller
from and against the entirety of any Adverse Consequences the Seller
shall suffer caused proximately by any liability of the Seller,
which is an Assumed Liability.
9.3 Third Party Claims. If any third party shall notify any Party (the
"Indemnified Party") with respect to any matter (a "Third Party
Claim") which may give rise to a claim for
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indemnification against the other Party (the "Indemnifying Party")
under this Section 9, then the Indemnified Party shall promptly (and
in any event within five business days after receiving notice of the
Third Party Claim) notify the Indemnifying Party thereof in writing.
The Indemnifying Party will have the right at any time to assume and
thereafter conduct the defense of the Third Party Claim with counsel
of its choice reasonably satisfactory to the Indemnified Party;
provided, however, that the Indemnifying Party will not consent to
the entry of any judgment or enter into any settlement with respect
to the Third Party Claim without the prior written consent of the
Indemnified Party (not to be withheld unreasonably) unless the
judgment or proposed settlement involves only the payment of money
damages and does not impose an injunction or other equitable relief
upon the Indemnified Party. Unless and until the Indemnifying Party
assumes the defense of the Third Party Claim as provided
hereinabove, however, the Indemnified Party may defend against the
Third Party Claim in any manner it reasonably may deem appropriate.
In no event will the Indemnified Party consent to the entry of any
judgment or enter into any settlement with respect to the Third
Party Claim without the prior written consent of the Indemnifying
Party (not to be withheld unreasonably).
9.4 Determination of Adverse Consequences. The Parties shall make
appropriate adjustments for tax benefits and insurance coverage and
take into account a reasonable in determining Adverse Consequences
for purposes of this Section. All indemnification payments under
this Section shall be deemed adjustments to the Purchase Price. For
purposes of this Section, Adverse Consequences shall mean all
actions, suits, proceedings, hearings, investigations, charges,
complaints, claims, demands, injunctions, judgments, orders,
decrees, rulings, damages, dues, penalties, fines, costs, reasonable
amounts paid in settlement, liabilities, obligations, taxes, liens,
losses, expenses, and fees, including court costs and reasonable
attorneys' fees and expenses.
9.5 UCC Bulk Sales Indemnification. The parties hereby waive
Seller's compliance with the Uniform Commercial Code provision of
Michigan law regarding bulk transfers. Other provisions hereof
notwithstanding, Seller will indemnify and hold Buyer harmless from
all losses, costs, damages, assessments, administrative fines or
penalties, liabilities, obligations, claims or expenses (including
reasonable professional fees and similar expenses) attributable to
Seller's failure to comply with the Uniform Commercial Code
provision of Michigan law regarding bulk transfers in respect of the
Purchased Assets sold to Buyer hereunder.
10. Expenses. Each of the parties shall pay all of the costs that it incurs
incident to the preparation, execution, and delivery of this Agreement and
the performance of any related obligations, whether or not the transactions
contemplated by this Agreement shall be consummated, except that all such
costs and all liabilities of Seller other than the Assumed Liabilities,
including, without limitation, tax liabilities, shall be paid out of the
proceeds of the Purchase Price.
11. Risk of Loss. The risk of loss of or damage to the Purchased Assets from
fire or other casualty or cause shall be on Seller at all times up to the
Closing, and it shall be the responsibility of Seller to repair, or cause to
be repaired, and to restore the property to the condition it was before the
loss or damage.
12. Termination. Excluding the release provisions contained in paragraph
13.11, which
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shall survive any termination of this Agreement, or Closing, this
Agreement may be terminated at any time before the Closing Date as
follows:
(a) By Buyer and Seller jointly in writing, or
(b) By Buyer or Seller if there has been a material breach
of any of the representations or warranties, covenants or
agreements set forth in this Agreement on the part of the
other, and this breach by its nature cannot be cured before
the Closing.
13. Miscellaneous Provisions.
-------------------------
13.1 Representations and Warranties. All representations,
warranties, and agreements made by the parties pursuant to this
Agreement shall survive the consummation of the transactions
contemplated by this Agreement, without limitation as to time.
13.2 Notices. All notices, demands, and requests required or
permitted to be given under the provisions of this Agreement shall
be in writing and shall be deemed given (a) when personally
delivered or sent by facsimile transmission to the party to be given
the notice or other communication or (b) on the business day
following the day such notice or other communication is sent by
overnight courier to the following:
if to Seller: c/o Xxxxxx X. Xxxxx
Xxxxx and Xxxxx, P.C.
0000 Xxxx Xxx Xxxxxx Xxxx
Xxxxx 000
Xxxx, Xxxxxxxx 00000
Tel (000) 000-0000
Fax (000) 000-0000
if to Buyer: Xxxx X. XxXxxx
Vice President Legal
Xxxxxx-Xxxxx
00000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Tel (000) 000-0000
Fax (000) 000-0000
or to such other address or facsimile number that the parties may
designate in writing.
13.3 Assignment. Buyer may not assign this Agreement, or any
interest in it, without the prior written consent of the other,
except that Buyer may assign any or all of its rights under this
Agreement to any subsidiary without Seller's consent.
13.4 Parties in Interest. This Agreement shall inure to the benefit
of, and be binding on, the named parties and their respective
successors and permitted assigns, but not any other person.
13.5 Choice of Law. This Agreement shall be governed, construed, and
enforced in
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accordance with the laws of the State of Michigan. Buyer and Seller
shall be jointly considered the authors and drafters of this
Agreement.
13.6 Counterparts. This Agreement may be signed in any number of
counterparts with the same effect as if the signature on each
counterpart were on the same instrument.
13.7 Entire Agreement. This Agreement and all related documents,
schedules, exhibits, or certificates represent the entire
understanding and agreement between the parties with respect to the
subject matter and shall supersede all prior agreements or
negotiations between the parties other than those commitments as set
forth in Sections 2.2.6, 2.3, 3.4.6, 3.4.8, 4.1.6, 8.3, 8.9, 8.10,
of the Acquisition Agreement dated October 31, 1996 between the
parties. This Agreement may be amended, supplemented, or changed
only by an agreement in writing that makes specific reference to
this Agreement or the agreement delivered pursuant to it and that is
signed by the party against whom enforcement of any such amendment,
supplement, or modification is sought.
13.8 Receivables. For parts delivered to it by MMC after February 1,
1998, K-H shall pay at the rate of the pre-February 1, 1998 part
prices plus 20%. K-H shall recalculate all invoices for parts
delivered since February 1, 1998 using the increased parts prices.
To the extent that payment has not already been made, at Closing K-H
shall pay to MMC the recalculated difference plus any outstanding
parts invoices at closing, or if not verified by the time of
closing, after verification of the amounts owed in due course and
according to standard course of dealings between the parties..
13.9 Press Releases. Neither party to this Agreement shall issue any
press release of make any public announcement relating to the
subject matter of this Agreement without the prior written approval
of the other 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, or required to be made to its
shareholders, in which case the disclosing party will use reasonable
efforts to advise the other party prior to making the disclosure(s).
13.10 Arbitration.
13.10.1 AAA Any dispute, controversy, or claim arising out
of or relating to this Agreement or relating to the breach,
termination, or invalidity of this Agreement, whether
arising in contract, tort, or otherwise, shall be resolved
in binding arbitration. Any arbitration shall proceed in
accordance with the current Commercial Arbitration Rules
(the "Arbitration Rules") of the American Arbitration
Association ("AAA").
13.10.2 Final and Binding. Any award, order, or judgment
made pursuant to arbitration shall be deemed final and may
be entered in any court having jurisdiction over the
enforcement of the award, order, or judgment. Each party
agrees to submit to the jurisdiction of any court for
purposes of the enforcement of the award, order, or
judgment.
13.10.3 Number of Arbitrators. The arbitration shall be
held before one
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arbitrator knowledgeable in the general subject matter of the
dispute, controversy, or claim and selected by AAA in accordance
with the Arbitration Rules, except that any arbitration in which the
disputed, controverted, or claimed amount (as reflected on the
demand for arbitration, as the same may be amended) exceeds
$50,000.00 shall be held before three arbitrators, one arbitrator
being selected by Buyer, one by the Seller, and the third selected
by the other two from a panel of persons identified by AAA who are
knowledgeable in the general subject matter of the dispute,
controversy, or claim.
13.10.4 Location. The arbitration shall be held at the
office of AAA located in Southfield, Michigan (as the same
may be from time to time relocated), or at another place
the parties agree on.
13.10.5 Expenses and Costs. In any arbitration proceeding
under this Section, each party shall pay all its own
expenses, an equal share of the fees and expenses of the
arbitrator, and, if applicable, the fees and expenses of
its own appointed arbitrator; provided, however, the
arbitrator(s) shall have the power to award recovery of
costs and fees (including reasonable attorney fees,
administrative and AAA fees, and arbitrators' fees) among
the parties as the arbitrators determine to be equitable
under the circumstances.
13.11 Releases and Covenant not to Xxx.
---------------------------------
13.11.1 Releases. Except for the enforcement of the terms,
conditions, and obligations undertaken by the parties within
this Agreement (including certain obligations of Buyer under
the prior Acquisition Agreement), the parties in
consideration of their mutual promises, covenants and
considerations made herein, do hereby expressly release,
waive, acquit and forever discharge the other and the
other's respective subsidiaries, divisions, affiliates,
directors, officers, shareholders, employees, agents, legal
representatives, successors, predecessors and assigns from,
and hereby waive, any and all claims, demands, actions,
causes of action, suits, debts, contracts, agreements,
damages (including attorney's fees) costs, expenses,
liabilities, obligations, including claims of economic
duress, product liability and controversies whatsoever, in
law or in equity, that either party, their representatives
or executors had or now have against the other party and its
respective subsidiaries, divisions, affiliates, directors,
officers, shareholders, employees, agents, legal
representatives, successors, predecessors and assigns for,
upon or by reason of any matter, cause or thing whatsoever
in any way relating to the Milford facility and business,
including any third party claims, from the beginning of
time to the date of Closing and thereafter. Buyer does
further release, waive, acquit and forever discharge Seller
and Seller's respective subsidiaries, divisions,
affiliates, directors, officers, shareholders, employees,
agents, legal representatives, successors, predecessors and
assigns from, and hereby waives, any and all claims,
demands, actions, causes of action, suits, debts,
contracts, agreements, damages (including attorney's fees)
costs, expenses, liabilities, obligations, including claims
of economic duress, product liability and controversies
whatsoever, in law or in equity, that Buyer, its
representatives, assigns, or executors had or have at
Closing or might have after Closing with respect to the
obligations undertaken by Buyer within Section 2.3,
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2.4, or for any product liability claims.
13.11.2 Enforcement of Agreement. Notwithstanding the
above, it is specifically agreed, however, that if either
party shall breach any of the terms and conditions of this
Agreement, the other party may bring a claim in arbitration
to enforce this Agreement, and if said party is successful
in enforcing the Agreement, said party will not only be
entitled to the benefits previously available and withheld
contrary to this Agreement, but also all actual attorney
fees and litigation costs incurred. Further, should any
party bring an action or claim in arbitration which
attempts to, or which will have the effect of, overturning,
voiding, modifying, and/or nullifying the release within
Section 13.11, then in addition to any other relief or
damages, such party shall be responsible to the other party
for the following: (a) to indemnify and hold the other
party harmless from any and all costs, including actual
attorney fees; and (b) payment to the other party of
liquidated damages in the amount of $1,000,000.00, which
both parties agree is reasonable under the circumstances
given the difficulty of calculating actual damages.
13.11.3 Full Release. Except for the enforcement of the
terms and conditions of the Agreement, this release is
intended to be a full, final and complete release of all
claims by either party against the other and the terms
contained herein are not mere recitals. Further, the
releases and covenant not to xxx contained within this
Section 13.11 shall survive any termination of this
Agreement or Closing.
13.11.4 Covenant not to Xxx. The parties hereto in
consideration of their mutual promises, covenants and
considerations made herein, do, except for the enforcement
of the terms and conditions of this Agreement, hereby
expressly covenant with each other not to xxx or arbitrate
against the other, and/or the other's respective
subsidiaries, divisions, affiliates, directors, officers,
shareholders, employees, agents, legal representatives,
successors, predecessors and assigns for any claims,
demands, actions, causes of action, suits, debts,
contracts, agreements, damages (including attorney's fees)
costs, expenses, liabilities, obligations, including claims
of economic duress, product liability and controversies
whatsoever, in law or in equity, that either party, their
representatives or executors had or now have against the
other party and its respective subsidiaries, divisions,
affiliates, directors, officers, shareholders, employees,
agents, legal representatives, successors, predecessors and
assigns for, upon or by reason of any matter, cause or
thing whatsoever in any way relating to the Milford
facility and business, including any third party claims,
from the beginning of time to the date of Closing. Both
parties expressly state that this covenant not to xxx was
bargained for in good faith.
13.12 Subcontract. The Closing of this Agreement, but not the
provisions of Section 13.11, shall be conditioned upon Seller
entering into and closing the sale of the remaining MMC business and
assets (subject to certain liabilities) to PGK Acquisition.
13.13 Post Closing. Through June, 1998 K-H shall permit PGK
Acquisition, Inc. to lease space to MMC, if K-H's permission is
requried or necessary, and in any case, K-H shall permit and not
interfere with MMC's continued use and possession, including ingress
and egress, of that portion of the real property listed in Section
1.1.1 which runs
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Seller's DRA business.
The parties have executed this Agreement on the date set forth on
the first page of this Agreement.
SELLER
Milford Manufacturing Corporation
By:/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, President
BUYER
Xxxxxx-Xxxxx Company
By: /s/ Xxxx X. XxXxxx
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Its: Authorized Officer
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