Exhibit 10.23


 


ASSET
PURCHASE AGREEMENT


 


This ASSET PURCHASE
AGREEMENT (this “Agreement”), is made and entered into as of
September 28, 2001, by and between CONGRESS FINANCIAL CORPORATION (SOUTHWEST),
a Texas corporation (“Seller”) and OBB ACQUISITION CORP., a Delaware
corporation (“Buyer”).


 


RECITALS


 


A.                                   Seller
has acquired all right, title and interest in certain of the assets and
properties of DRIVELINE TECHNOLOGIES, INC., an Oklahoma corporation (“Driveline”).


 


B.                                     Buyer
desires to purchase certain assets formerly held by Driveline from Seller, and
Seller desires to sell such assets to Buyer, on the terms and subject to the
conditions of this Agreement.


 


C.                                     Accordingly,
Buyer and Seller are desirous of entering into this Agreement in order to
evidence the terms and conditions of such acquisition of assets by Buyer from
Seller.


 


NOW, THEREFORE, in
consideration of the mutual covenants, agreements, representations and
warranties contained in this Agreement, the parties agree as follows:


 


ARTICLE I

DEFINITIONS


 


The terms defined in this
Article shall have the following respective meanings for all purposes of this
Agreement and for all schedules and exhibits hereto:


 


“Affiliate” means
with respect to any Person any other Person that, directly or indirectly, through
one or more intermediaries, controls, is controlled by or is under common
control with, such first Person.  For
purposes of this definition, the term “control” (including the correlative
meanings of the terms “controls,” “controlled by,” and “under direct or
indirect control with”) as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of such Person, whether through ownership
of voting securities or by contract or otherwise.


 


“Agreement” shall
have the meaning given such term in the introductory paragraph hereof, and
shall include any and all amendments, modifications or supplements to this
Agreement.


 


“Assignment” means
that certain Assignment, in the form attached as Exhibit A to this
Agreement, to be executed and delivered by Buyer and Seller at the Closing.


 


“Bill of Sale”
means that certain Bill of Sale, in the form attached as Exhibit B to
this Agreement, to be executed and delivered by Seller to Buyer at the Closing.


 

















 


“Business Day”
means a day other than a Saturday, Sunday or other day on which commercial
banks in Dallas, Texas or New York, New York are authorized or required by law
to close.


 


“Buyer” shall have
the meaning given to such term in the introductory paragraph hereof and shall
include successors and permitted assigns of Buyer.


 


“Buyer’s Documents”
shall have the meaning given to such term in Section 6.2(a).


 


“Closing” means
the consummation and effectuation of the transactions contemplated herein
pursuant to the terms and conditions of this Agreement, which shall take place
at the offices of Patton Boggs LLP, 2001 Ross Avenue, Suite 3000, Dallas,
Texas  75201 on the same day this
Agreement is fully executed by Buyer and Seller, or at such other place as is
mutually agreed upon by the parties hereto. 
Upon consummation, the Closing shall be deemed to have taken place as of
12:01 a.m. on the Closing Date.


 


“Closing Date”
means the date on which the Closing actually occurs.


 


“Driveline” shall
have the meaning given such term in Recital (A) hereof.


 


“Governmental
Authority” means any foreign, domestic, federal, territorial, state or
local governmental authority, quasi-governmental authority, instrumentality,
court, government or self-regulatory organization, commission, tribunal or
organization or any regulatory, administrative or other agency, or any
political or other subdivision, department or branch of any of the foregoing.


 


“Intellectual Property”
shall mean, all rights to the registered and unregistered patents, patents
pending, patent rights, patent applications, trademarks, trademark
applications, trademark registrations, trade names, service marks, copyrights,
applications for the foregoing, trade secrets, good will, processes, drawings,
blueprints, customer lists and licenses, whether as a licensor or licensee,
which are more particularly described and listed on Schedule 1.1.


 


“Inventory” means
those inventory assets of Seller more particularly described and listed on
Schedule 1.2.


 


“Knowledge”,
whether capitalized or not, means a matter which is within the Person’s
‘knowledge’ or which is otherwise ‘known’ to such Person, and such Person has
“knowledge” of a matter if such Person or an executive officer of such Person
has actual knowledge of such matter or would reasonably be expected to have
actual knowledge of such matter following reasonable inquiry of the appropriate
employees and agents of such Person.


 


“Liability” means,
with respect to any Person, any liability or obligation of such Person of any
kind, character or description, whether known or unknown, absolute or
contingent, accrued or unaccrued, liquidated or unliquidated, secured or
unsecured, joint or several, due or to become due, vested or unvested,
executory, determined, determinable, or otherwise and whether or not the same
is required to be accrued on the financial statements of such Person and
whether or not the same appears on any schedule to this Agreement.


 


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“Lien” means any
lien, pledge, mortgage, security interest, claim, lease, charge, option, right
of first refusal, easement, servitude, transfer restriction, competing claim of
ownership or any other encumbrance, restriction or limitation whatsoever.


 


“Losses” means any
and all claims, demands, losses, costs, expenses, obligations, Liabilities,
damages (including, without limitation, for physical injury including sickness,
disease or death or property damage), recoveries and deficiencies, including
interest, reasonable attorneys’ fees and court costs.


 


“Machinery,
Equipment, Furniture and Fixtures” means those items of office equipment,
office and shop furniture, fixtures, machinery, vehicles, equipment, tools,
hand held computers and other personal property and fixed assets of Seller
which are more particularly described and listed on Schedule 1.3.


 


“Permitted
Encumbrances” means Liens for current taxes and assessments not yet due and
payable, including, but not limited to, Liens for nondelinquent ad valorem
taxes and nondelinquent statutory Liens arising other than by reason of any
default on the part of Seller.


 


“Person” means an
individual, partnership, corporation, estate, joint-stock company, limited
liability company, trust, unincorporated organization, association, joint
venture or other entity or organization, including any Governmental Authority.


 


“Pre-Closing Liability”
shall mean any Liability relating to or arising from the ownership or operation
of the Purchased Assets by Seller before August 20, 2001, any obligations
to pay utilities or taxes for the period prior to August 20, 2001 and any
credit or other amount due a direct or indirect purchaser of products produced
using the Machinery, Equipment, Furniture and Fixtures before August 20,
2001.


 


“Purchased Assets”
means the Intellectual Property, the Inventory, the Machinery, Equipment,
Furniture and Fixtures and the Receivables.


 


“Purchase Price”
shall have the meaning given such term in Article IV.


 


“Receivables”
means the accounts receivable created on or after August 20, 2001 upon the
sale of products produced using the Machinery, Equipment, Furniture and
Fixtures, the assets Buyer has purchased today from Prime Financial Corporation
and certain other assets of Driveline which have been made available to Seller
and Prime in connection therewith.


 


“Repossession”
shall mean the repossession of and acquisition of title to the Purchased Assets
by Seller pursuant to the terms and conditions of the Repossession Agreement,
which took place on May 11, 2001.


 


“Repossession
Agreement” shall mean that certain Peaceful Repossession Agreement, dated
May 11, 2001, by and among Driveline, L & S Manufacturing Corp. and
Seller, a true and correct copy of which is attached to this Agreement as Exhibit
C hereto.


 


“Seller” shall
have the meaning given such term in the introductory paragraph hereof.


 


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“Seller’s Documents”
shall have the meaning given such term in Section 5.2.


 


ARTICLE II

PURCHASE AND SALE OF PURCHASED ASSETS


 


On the terms and subject
to the conditions hereof, Seller agrees at Closing to sell, assign and convey
to Buyer, and Buyer agrees to purchase at Closing from Seller, all of Seller’s
right, title and interest in and to the Purchased Assets free and clear of all
Liens and encumbrances, other than the Permitted Encumbrances, for the
consideration set forth in this Agreement.


 


ARTICLE III

LIABILITIES


 


It is expressly
understood and agreed that Buyer will be liable for all Liabilities related to
the ownership and operation of the Purchased Assets, which arise or are
incurred from and after August 20, 2001, to the extent that the existence
at or after such date of such Liabilities does not constitute a breach of any
representation or warranty made by Seller herein or in connection
herewith.  It is expressly understood
and agreed that Buyer will not assume any Liability of Seller or of its
Affiliates, including without limitation, any Liability relating to the ownership
or use of Purchased Assets or sale of products produced using the Purchased
Assets prior to August 20, 2001. 
Anything to the contrary herein notwithstanding, or in any other writing
delivered in connection herewith, nothing herein or in any such other writing
shall be construed to constitute the assumption, express or implied, by Buyer
of any Liability of Seller or of any Affiliate of Seller, or of Driveline, or
any of its Affiliates.


 


ARTICLE IV

PURCHASE PRICE AND MANNER OF PAYMENT


 


As the consideration to
be paid by Buyer to Seller for the purchase by Buyer from Seller of all of the
Purchased Assets, Buyer will pay Seller the sum of (a) One Million Seven
Hundred and Ten Thousand Dollars ($1,710,000) (the “Base Amount”) and (b)
[$305,738.76] [to be brought forward to closing date] (the “Receivables Amount”
and, together with the Base Amount, the “Purchase Price”), provided all of the
conditions set forth in this Agreement have been fulfilled.  On the Closing Date, Buyer will wire
transfer the Base Amount to Seller in immediately available funds. Such wire
transfer to Seller of the Base Amount shall be made in accordance with Seller’s
written wire instructions provided to Buyer no later than one (1) Business Day
prior to the Closing Date.  The
Receivables Amount shall be paid out of the proceeds of the Receivables, which
the parties have agreed that Seller shall collect on behalf of Buyer following
the Closing.


 


ARTICLE V

REPRESENTATIONS AND WARRANTIES OF
SELLER


 


Seller hereby represents
and warrants to Buyer as follows:


 


Section 5.1                                      Organization.
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the state in which it was incorporated.  Seller has all requisite


 


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corporate right, power and authority to own and sell all of the
Purchased Assets to Buyer pursuant to this Agreement.


 


Section 5.2                                      Authority;
Consents and Approvals.


 


(a)                                  Seller
has all requisite corporate right, power and authority to execute, deliver and
perform this Agreement and each other document and agreement referenced herein
to be executed and delivered by Seller pursuant hereto (together, the “Seller’s
Documents”).  The execution,
delivery, and performance of the Seller’s Documents by Seller has been duly and
validly authorized and approved by all necessary corporate action.  The Seller’s Documents constitute the legal,
valid and binding obligations of Seller, enforceable against it in accordance
with their respective terms.


 


(b)                                 The
execution, delivery and performance of the Seller’s Documents by Seller will
not (with or without the giving of notice or the passage of time, or both) (i)
violate any applicable provision of law or any rule or regulation of any
federal, state or local Governmental Authority applicable to Seller or the Purchased
Assets, or any order, writ, injunction, judgment or decree of any court,
administrative agency or other Governmental Authority applicable to Seller or
the Purchased Assets, (ii) violate either the Seller’s Articles of
Incorporation or Bylaws, as each is amended to the Closing Date, (iii) require
any consent under, conflict with or constitute a breach or default under any
agreement, indenture, mortgage, deed of trust, lease, or other instrument to
which Seller is a party or by which it is bound, or any license, permit or
certificate held by Seller, or (iv) require any consent of, approval by, notice
to or registration with any Governmental Authority.


 


Section 5.3                                      Title
to Purchased Assets.


 


(a)                                  Prior
to the Repossession, (i) Seller had a perfected security interest in the
Purchased Assets prior and superior to all others and (ii) Driveline defaulted
in the performance of its obligations secured by such security interest.  Pursuant to the Repossession, Seller came into
lawful possession of the Purchased Assets without breaching the peace in
accordance with all applicable laws and pursuant to the terms and conditions of
the Repossession Agreement.  There are
no parties with the right to redeem the Purchased Assets (specifically
including, but not limited to any guarantors or holders of any Liens).  Every aspect of the intended sale of the
Purchased Assets from Seller to Buyer is commercially reasonable. Seller has
given legally sufficient notice of the sale to Driveline and to all other
parties that are entitled to receive such notice.


 


(b)                                 Seller
is the sole and absolute owner of the Purchased Assets and has good and
marketable title to and the right to assign and convey the Purchased Assets
free and clear of any and all Liens of any kind whatsoever. Seller’s ownership
of the Purchased Assets is not subject to any pending or, to Seller’s
knowledge, threatened claim, defense, action or proceeding of any other
Person.  At Closing, Seller will convey
to Buyer, and Buyer upon delivery to it of the Assignment and of the Bill of
Sale by Seller at Closing will receive, all legal and beneficial title in and
to all of the Purchased Assets, free and clear of any and all Liens thereon of
any kind whatsoever.


 


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Section 5.4                                      No
Injunctions or Orders.  Seller is
not a party to any agreement, and Seller is not subject to nor, to the
knowledge of Seller, threatened with, any injunctions of any court or orders of
any other Governmental Authority with respect to the Purchased Assets.


 


Section 5.5                                      Litigation.
There is no suit, action, administrative proceeding, arbitration, grievance or
other proceeding or governmental investigation pending or, to the knowledge of
Seller, threatened, against Seller which individually or in the aggregate could
adversely affect the Purchased Assets.


 


Section 5.6                                      Compliance
with Laws. Seller has not received any written notice claiming it is in
violation of, any order, law, ordinance, statute, rule or regulation applicable
to the Purchased Assets where the consequences of such violation would have an
adverse effect on the Purchased Assets.


 


Section 5.7                                      Brokers.  No agent, broker, investment banker, or
other Person acting on behalf of Seller or under its authority is or will be
entitled to any broker’s or finder’s fee or any other commission or similar
fee, directly or indirectly, in connection with the transaction contemplated by
this Agreement.


 


Section 5.8                                      Intellectual
Property Rights.  Seller acquired
the Intellectual Property from Driveline and L & S Manufacturing Corp.
pursuant to the Repossession.  Seller
has not received notice from any Person claiming that any operation, or act,
product, technology or service relating to the Intellectual Property infringes
or misappropriates the Intellectual Property of any Person, or that Driveline
or any of its Affiliates has engaged in unfair competition or trade practices
under the laws of any relevant jurisdiction (nor does the Seller have knowledge
of any basis therefor). Seller is the sole and absolute owner of the
Intellectual Property.  Seller has not
assigned, transferred, or hypothecated its interest in the Intellectual
Property to any other person or entity. 
The Intellectual Property is not subject to any Liens, charges or
encumbrances.


 


Section 5.9                                      Disclosures.
The representations, warranties or statements by Seller herein and in the
Exhibits and Schedules attached hereto are true, complete and correct in all
material respects and do not contain any untrue statement of a material fact.


 


ARTICLE VI

REPRESENTATIONS AND WARRANTIES OF
BUYER


 


Buyer hereby represents
and warrants to Seller as follows:


 


Section 6.1                                      Organization.
Buyer is a corporation duly organized, validly existing and in good standing
under the laws of the state in which it was incorporated.  Buyer has all requisite corporate right,
power and authority to purchase the Purchased Assets from Seller pursuant to
this Agreement.


 


Section 6.2                                      Authority.
Buyer has all requisite corporate right, power and authority to execute,
deliver and perform this Agreement and each other document and agreement
referenced herein to be executed and delivered by Buyer pursuant hereto
(together, the “Buyer’s Documents”). 
The execution, delivery and performance of the Buyer’s Documents by
Buyer have been duly and validly authorized and approved by all necessary
corporate action. The


 


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Buyer’s Documents constitute the legal, valid and binding obligations
of Buyer, enforceable against it in accordance with their respective terms.


 


Section 6.3                                      No
Violations or Consents.  The
execution, delivery and performance of the Buyer’s Documents by Buyer will not
(with or without the giving of notice or the passage of time or both) (i)
violate any applicable provision of law or any rule or regulation of any
federal, state or local Governmental Authority applicable to Buyer, or any
order, writ, injunction, judgment or decree of any court, administrative agency
or other Governmental Authority applicable to Buyer, (ii) violate Buyer’s Certificate
of Incorporation or Bylaws, as each is amended to the Closing Date, (iii)
require any consent under, conflict with or constitute a breach or default
under any agreement, indenture, mortgage, deed of trust, lease, license or
other instrument to which Buyer is a party or by which it or any Purchased
Asset is bound, or any license, permit or certificate held by Buyer, or (iv)
require any consent of, approval by, notice to or registration with any
Governmental Authority.


 


Section 6.4                                      Compliance
with Laws. Buyer has not received any written notice claiming Seller is in
violation of, any order, law, ordinance, statute, rule or regulation applicable
to the Purchased Assets where the consequences of such violation would have an
adverse effect on the Purchased Assets.


 


Section 6.5                                      Brokers.  No agent, broker, investment banker, or
other Person acting on behalf of Buyer or under its authority is or will be
entitled to any broker’s or finder’s fee or any other commission or similar
fee, directly or indirectly, in connection with the transaction contemplated by
this Agreement.


 


Section 6.6                                      Disclosures.  The representations, warranties or
statements by Buyer herein and in the Exhibits and Schedules attached hereto
are true, complete and correct in all material respects and do not contain any
untrue statement of a material fact.


 


ARTICLE VII

CLOSING DELIVERIES


 


The obligations of Buyer
and Seller hereunder are subject to the satisfaction of the following Closing
deliveries that are conditions precedent unless specifically waived by the
parties.


 


Section 7.1                                      Seller’s
Closing Deliveries.  Seller shall
execute and deliver, or cause to be executed and delivered, to Buyer on the
Closing Date, each of the following:


 


(a)                                  This
Agreement;


 


(b)                                 The
Bill of Sale;


 


(c)                                  The
Assignment;


 


(d)                                 Executed
UCC-3 Partial Releases in form satisfactory to Buyer, in its sole and absolute
discretion, sufficient to evidence the full and complete release of any and all
Liens on the Purchased Assets;


 


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Section 7.2                                      Buyer’s
Closing Deliveries. Buyer shall have executed and delivered, or caused to
be executed and delivered, to Seller at the Closing each of the following:


 


(a)                                  This
Agreement;


 


(b)                                 The
Purchase Price, paid in the manner required by the provisions of Article
IV; and


 


(c)                                  The
asset purchase agreement of even date herewith between Buyer and Prime
Financial Corporation, shall have been executed and delivered, and all
conditions precedent thereto shall have been completed to the reasonable satisfaction
of Seller.


 


ARTICLE VIII

INDEMNIFICATION


 


Section 8.1                                      Indemnification
of Buyer by Seller.  Subject to the
limitation imposed by Section 8.5 below, notwithstanding any investigation by
Buyer or its representatives, the Seller, its successors and assigns, will
indemnify and hold the Buyer, and its Affiliates, harmless from and fully pay
any and all Losses, that Buyer, or any of its Affiliates, may suffer or incur
as a result of or relating to(a) the breach of any representations or
warranties made by Seller in Article 
and elsewhere in this Agreement, or in any other document delivered by
Seller to Buyer pursuant hereto to include, without limitation, the Bill of
Sale and the Assignment (collectively, the “Transaction Documents”), or
any allegation by a third party that, if true, would constitute such a breach,
(b) the breach of any covenant or agreement of Seller in this Agreement or the
Transaction Documents, or (c) any Pre-Closing Liability.


 


Section 8.2                                      Indemnification
of Seller by Buyer.  Notwithstanding
any investigation by Seller or its representatives, the Buyer, its successors
and assigns, will indemnify and hold Seller, and its Affiliates, harmless from
and fully pay any and all Losses that Seller, or any of its Affiliates, may
suffer or incur as a result of or relating to the breach of any representations
or warranties made by Buyer in Article and elsewhere in this Agreement.


 


Section 8.3                                      Notice.
If a party is entitled to receive indemnification or to recover from the other
party for any Losses incurred pursuant to this Article (the “Indemnified
Party”), the Indemnified Party agrees to give prompt written notice to the
other party (the “Indemnifying Parties”) upon the occurrence of any
indemnifiable or recoverable Loss or the assertion of any claim or the
commencement of any action or proceeding by any third party in respect of which
such a Loss may reasonably be expected to occur (a “Claim”), but the
Indemnified Party’s failure to give such notice will not affect the obligations
of the Indemnifying Party under this Article except to the extent that the
Indemnifying Party is materially prejudiced thereby.  Such written notice will include a reference to the event or
events forming the basis of such Loss or Claim and the amount involved, unless
such amount is uncertain or contingent, in which event the Indemnified Party
will give a later written notice when the amount becomes fixed.


 


Section 8.4                                      Defense
of Claims.  The Indemnifying Party
may elect to assume and control the defense of any Claim, including the
employment of counsel reasonably satisfactory to the Indemnified Party and the
payment of expenses related thereto, if (a) the Indemnifying Party acknowledges
its obligation to indemnify the Indemnified Party for any Losses resulting from


 


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such third party Claim and provides reasonable evidence to the
Indemnified Party of its financial ability to satisfy such obligation; (b) the
Claim does not seek to impose any liability or obligation on the Indemnified
Party other than for money damages; and (c) the Claim does not relate to the
Indemnified Party’s relationship with its customers or employees. If such
conditions are satisfied and the Indemnifying Party elects to assume and
control the defense of a Claim, then (i) the Indemnifying Party will not be
liable for any settlement of such Claim effected without its consent, which
consent will not be unreasonably withheld; (ii) the Indemnifying Party may
settle such Claim without the consent of the Indemnified Party; and (iii) the
Indemnified Party may employ separate counsel and participate in the defense
thereof, but the Indemnified Party will be responsible for the fees and
expenses of such counsel unless (A) the Indemnifying Party has failed to adequately
assume the defense of such Claim or to employ counsel with respect thereto or
(B) a conflict of interest exists between the interests of the Indemnified
Party and the Indemnifying Party that requires representation by separate
counsel, in which case the fees and expenses of such separate counsel will be
paid by the Indemnifying Party.  If such
conditions are not satisfied, the Indemnified Party may assume and control the
defense of the Claim at the Indemnifying Party’s cost and expense.


 


Section 8.5                                      Limitation
on Maximum Amount of Liability of Seller for Indemnification Claims or Losses.  The maximum aggregate amount of Losses for
which any Indemnifying Party, shall be obligated to pay to an Indemnified
Party, pursuant to its obligations under Section 8.1 or 8.2 above, as the case
may be, shall not, in any event, exceed a total sum equal to the amount
of the Purchase Price.


 


ARTICLE IX

FURTHER AGREEMENTS


 


Section 9.1                                      Additional
Actions Seller and Buyer.  On and
after the Closing Date, Seller shall execute and deliver such documents and do
and perform all such other acts as may reasonably be required by Buyer in order
fully to convey and transfer to and vest in Buyer all of the Purchased Assets
of Seller intended to be assigned, transferred and conveyed pursuant hereto.


 


Section 9.2                                      Costs
and Transfer Taxes.  Except as
otherwise set forth in this Agreement, each party hereto shall pay its own
costs and expenses (including legal fees and expenses) incurred in connection
with due diligence reviews, the preparation, negotiation and execution of this
Agreement and all other agreements, certificates, instruments and documents
delivered hereunder and all other matters relating to the consummation of the
transactions contemplated hereby, whether or not the proposed transaction is
consummated.  All sales, documentary
stamp taxes and other transfer taxes in connection with the sale and delivery
of the Purchased Assets hereunder shall be paid by Seller.


 


Section 9.3                                      Books
and Records after Closing.  From and
after the Closing, Buyer shall have free and open access to all books and
records which Seller may have relating in any manner to the Purchased Assets
and Seller shall furnish Buyer with copies thereof.


 


Section 9.4                                      Delivery
of Property Received After Closing. 
Seller agrees that it will transfer or deliver to Buyer, promptly after
the receipt thereof, any cash or other property which


 


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Seller receives after the Closing Date in respect of any assets
transferred or intended to be transferred to Buyer as part of the Purchased
Assets under this Agreement; provided that the first [$305,738.76] of
Receivables collected by Seller shall be applied to the payment of the
Receivables Amount.  Buyer agrees that
it will transfer or deliver to Seller, promptly after the receipt thereof, any
cash or other property which Buyer receives after the Closing Date in respect
of any assets not transferred or intended to be transferred to Buyer as part of
the Purchased Assets under this Agreement. 
Without limiting the generality of the foregoing, Seller agrees that it
shall (a) provide Buyer with a statement of the Receivables and all related
back-up material, (b) provide Buyer with a weekly accounting of all amounts
received on account of the Receivables and (c) pay over to Buyer all such sums
in excess of the Receivables Amount within one (1) week of receipt by
Seller.  Seller acknowledges that Buyer
shall have the sole right to pursue collection of the Receivables and that
Seller shall have no right to settle or compromise any dispute concerning the
Receivables without the consent of Buyer.


 


ARTICLE X

MISCELLANEOUS


 


Section 10.1                      Entire
Understanding, Waiver, Etc.  This
Agreement (including all schedules and exhibits attached hereto) and all other
agreements executed and delivered at the Closing set forth the entire
understanding of the parties and supersede any and all prior or contemporaneous
agreements, arrangements and understandings relating to the subject matter
hereof, and the provisions hereof may not be changed, modified, waived or
altered except by an agreement in writing signed by the parties hereto.  A waiver by any party of any of the terms or
conditions of this Agreement, or of any breach thereof, shall not be deemed a
waiver of such term or condition for the future, or of any other term or
condition hereof, or of any subsequent breach thereof.


 


Section 10.2                      Severability.  If any provision of this Agreement or the
application of such provision shall be held by a court of competent
jurisdiction to be unenforceable, the remaining provision of this Agreement
shall remain in full force and effect.


 


Section 10.3                      Captions.  The captions herein are for convenience only
and shall not be considered a party of this Agreement for any purpose,
including, without limitation, the construction or interpretation of any
provision hereof.


 


Section 10.4                      Notices.  All notices, requests, demands, claims and
other communications hereunder shall be in writing.  Any notice, request, demand, claim, or other communication
hereunder shall be deemed duly given (a) if personally delivered, when so
delivered, (b) if mailed, two Business Days after having been sent by
registered or certified with return receipt requested, postage prepaid and
addressed to the intended recipient as set forth below, (c) if given by
facsimile, once such notice or other communication is transmitted to the
facsimile number specified below and the appropriate answer back or telephonic
confirmation is received, provided that such notice or other communication is
promptly thereafter mailed in accordance with the provisions of clause (b)
above or (d) if sent through an overnight delivery service in circumstances in
which such service guarantees next day delivery, the day following being so
sent:


 


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  (i)

  	
   

  	
  If to Seller:

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
  Congress Financial
  Corporation (Southwest)

  	 

	
   

  	
   

  	
  1201 Main Street, Suite
  1625

  	 

	
   

  	
   

  	
  P.O. Box 50728

  	 

	
   

  	
   

  	
  Dallas, Texas 75250

  	 

	
   

  	
   

  	
  Attention:     Mr.
  Mark Galovic

  	 

	
   

  	
   

  	
  Telephone Number:  (214)
  712-3532

  	 

	
   

  	
   

  	
  Facsimile
  Number:   (214) 748-9118

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
  Copy to:

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
  Mary M. “Cissy”
  Hitchery

  	 

	
   

  	
   

  	
  Patton Boggs LLP

  	 

	
   

  	
   

  	
  2001 Ross Avenue, Suite
  3000

  	 

	
   

  	
   

  	
  Dallas, Texas 75201

  	 

	
   

  	
   

  	
  Telephone
  Number:   (214) 758-1588

  	 

	
   

  	
   

  	
  Facsimile
  Number:    (214) 758-1550

  	 

	
   

  	
   

  	
   

  	 

	
  (ii)

  	
   

  	
  If to Buyer:

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
  OBB Acquisition Corp.

  	 

	
   

  	
   

  	
  c/o Roller Bearing
  Company of America, Inc.

  	 

	
   

  	
   

  	
  60 Round Hill Road

  	 

	
   

  	
   

  	
  Fairfield, Connecticut
  06430

  	 

	
   

  	
   

  	
  Attention:        Chief
  Executive Officer

  	 

	
   

  	
   

  	
  Telephone
  Number:    (203) 255-1511

  	 

	
   

  	
   

  	
  Facsimile Number:     (203)
  256-0775

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
  Copy to:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  C. David Goldman

  	
   

  
	
   

  	
   

  	
  McDermott, Will &
  Emery

  	 

	
   

  	
   

  	
  50 Rockefeller Plaza

  	 

	
   

  	
   

  	
  New York, New York
  10020

  	 

	
   

  	
   

  	
  Telephone
  Number: (212) 547-5512

  	 

	
   

  	
   

  	
  Facsimile
  Number: (212) 547-5444

  	 

					



 


Any
party may give any notice, request, demand, claim or other communication
hereunder using any other means (including ordinary mail or electronic mail),
but no such notice, request, demand, claim or other communication shall be
deemed to have been duly given unless and until it actually is received by the
individual for whom it is intended.  Any
party may change the address to which notices, requests, demands, claims and
other communications hereunder are to be delivered by giving the other parties
notice in the manner herein set forth.


 


Section 10.5                      Successors
and Assigns.  Neither this Agreement
nor any of the rights or obligations arising hereunder shall be assignable
without the prior written consent of the parties


 


11

















 


hereto. Nothing in this Agreement, express or implied, shall confer
upon any Person, other than the parties hereto, and their successors and
permitted assigns any rights or remedies under or by reason of this Agreement.


 


Section 10.6                      Survival
of Representations and Warranties. 
The representations, warranties, covenants and agreements made by Seller
and by Buyer, respectively, in this Agreement shall survive the Closing Date
hereunder for ninety (90) months and shall also survive and shall be unaffected
by (and shall not be deemed waived by) any investigation, audit, appraisal, or
inspection at any time made by or on behalf of Buyer.


 


Section 10.7                      Schedules
and Exhibits.  The schedules and
exhibits attached hereto shall form a part of this Agreement and are hereby
incorporated into this Agreement by reference.


 


Section 10.8                      Counterparts.  This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which,
together, shall constitute one and the same instrument.


 


Section 10.9                      Construction
of Terms.  Any reference herein to
the masculine or neuter shall include the masculine, the feminine and the
neuter, and any reference herein to the singular or plural shall include the
opposite thereof.  The parties to this
Agreement acknowledge that each party and counsel to each party has
participated in the drafting of this Agreement and agree that this Agreement
shall not be interpreted against one party or the other based upon who drafted
it.


 


Section 10.10                Attorneys’
Fees and Costs.  Unless otherwise
provided herein to the contrary, in the event any action or proceeding is
commenced by any party to this Agreement to (a) determine rights, duties or
obligations under this Agreement, (b) determine a breach of this Agreement and
obtain damages as a result of such breach or (c) otherwise enforce this
Agreement, the prevailing party in such action or proceeding shall be entitled
to recover from the non-prevailing party all of the prevailing party’s
out-of-pocket costs and expenses, including, without limitation, all reasonable
attorneys’ fees, disbursements and related charges.  A party will be considered the prevailing party if (i) it
initiated the litigation and substantially obtains the relief it sought, either
through a judgment or arbitration award or the losing party’s voluntary action
before arbitration, trial, or judgment, (ii) the other party withdraws its
action without substantially obtaining the relief it sought, or (iii) such
party did not initiate the litigation and judgment is entered into for any
party,  but
without substantially granting the relief sought by the initiating party or
granting more substantial relief to the non-initiating party with respect to
any counterclaim, asserted by the non-initiating party in connection with such litigation.


 


Section 10.11                Governing
Law.  THIS AGREEMENT SHALL BE
CONTROLLED, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS AND DECISIONS OF
THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT
STATE, WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT
MIGHT REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.


 


Section 10.12                Facsimile
Execution. Each counterpart of this Agreement may be executed and
transmitted by facsimile transmission. 
The parties will initially accept facsimile


 


12

















 


signature pages.  The original
documents shall be delivered by hand or courier within one (1) Business Day of
the execution of the documents. Counsel for the parties will substitute and
provide original signature pages to the other parties as soon as they are
received.


 


 


[The Remainder of this Page Intentionally Left Blank]


 


13

















 


IN WITNESS WHEREOF, the parties have duly executed
this Agreement on the day and year first above written.


 


	
  SELLER:

  	
  CONGRESS FINANCIAL CORPORATION

  (SOUTHWEST)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Mark
  Galovic

  	
   

  
	
   

  	
  Name:

  	
  Mark
  Galovic

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  BUYER:

  	
  OBB ACQUISITION CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Michael
  S. Gostomski

  	
   

  
	
   

  	
  Name:

  	
  Michael
  S. Gostomski

  	
   

  
	
   

  	
  Title:

  	
  Executive
  Vice President

  	
   

  



 


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