**Exhibit 10.23**

 

**ASSETPURCHASE AGREEMENT**

 

This ASSET PURCHASEAGREEMENT (this “Agreement”), is made and entered into as ofSeptember 28, 2001, by and between **CONGRESS FINANCIAL CORPORATION (SOUTHWEST)**,a Texas corporation (“Seller”) and **OBB ACQUISITION CORP.,**a Delawarecorporation (“Buyer”).

 

**RECITALS**

 

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

 

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

 

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

 

NOW, THEREFORE, inconsideration of the mutual covenants, agreements, representations andwarranties contained in this Agreement, the parties agree as follows:

 

# **ARTICLE IDEFINITIONS**

# ** **

The terms defined in thisArticle shall have the following respective meanings for all purposes of thisAgreement and for all schedules and exhibits hereto:

 

“Affiliate” meanswith respect to any Person any other Person that, directly or indirectly, throughone or more intermediaries, controls, is controlled by or is under commoncontrol with, such first Person.  Forpurposes of this definition, the term “control” (including the correlativemeanings of the terms “controls,” “controlled by,” and “under direct orindirect control with”) as used with respect to any Person, shall mean thepossession, directly or indirectly, of the power to direct or cause thedirection of the management policies of such Person, whether through ownershipof voting securities or by contract or otherwise.

 

“Agreement” shallhave the meaning given such term in the introductory paragraph hereof, andshall include any and all amendments, modifications or supplements to thisAgreement.

 

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

 

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

 

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

 

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

 

“Closing” meansthe consummation and effectuation of the transactions contemplated hereinpursuant to the terms and conditions of this Agreement, which shall take placeat the offices of Patton Boggs LLP, 2001 Ross Avenue, Suite 3000, Dallas,Texas  75201 on the same day thisAgreement is fully executed by Buyer and Seller, or at such other place as ismutually agreed upon by the parties hereto. Upon consummation, the Closing shall be deemed to have taken place as of12:01 a.m. on the Closing Date.

 

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

 

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

 

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

 

“Intellectual Property”shall mean, all rights to the registered and unregistered patents, patentspending, patent rights, patent applications, trademarks, trademarkapplications, 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” meansthose inventory assets of Seller more particularly described and listed onSchedule 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 Personhas actual knowledge of such matter or would reasonably be expected to haveactual knowledge of such matter following reasonable inquiry of the appropriateemployees and agents of such Person.

 

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

 

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“Lien” means anylien, pledge, mortgage, security interest, claim, lease, charge, option, rightof first refusal, easement, servitude, transfer restriction, competing claim ofownership or any other encumbrance, restriction or limitation whatsoever.

 

“Losses” means anyand 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, includinginterest, 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 Sellerwhich are more particularly described and listed on Schedule 1.3.

 

“PermittedEncumbrances” means Liens for current taxes and assessments not yet due andpayable, including, but not limited to, Liens for nondelinquent ad valoremtaxes and nondelinquent statutory Liens arising other than by reason of anydefault on the part of Seller.

 

“Person” means anindividual, partnership, corporation, estate, joint-stock company, limitedliability company, trust, unincorporated organization, association, jointventure or other entity or organization, including any Governmental Authority.

 

“Pre-Closing Liability”shall mean any Liability relating to or arising from the ownership or operationof the Purchased Assets by Seller before August 20, 2001, any obligationsto pay utilities or taxes for the period prior to August 20, 2001 and anycredit or other amount due a direct or indirect purchaser of products producedusing 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 thesale of products produced using the Machinery, Equipment, Furniture andFixtures, the assets Buyer has purchased today from Prime Financial Corporationand certain other assets of Driveline which have been made available to Sellerand Prime in connection therewith.

 

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

 

“RepossessionAgreement” shall mean that certain Peaceful Repossession Agreement, datedMay 11, 2001, by and among Driveline, L & S Manufacturing Corp. andSeller, a true and correct copy of which is attached to this Agreement as ExhibitC hereto.

 

“Seller” shallhave 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 IIPURCHASE AND SALE OF PURCHASED ASSETS**

# ** **

On the terms and subjectto the conditions hereof, Seller agrees at Closing to sell, assign and conveyto Buyer, and Buyer agrees to purchase at Closing from Seller, all of Seller’sright, title and interest in and to the Purchased Assets free and clear of allLiens and encumbrances, other than the Permitted Encumbrances, for theconsideration set forth in this Agreement.

 

# **ARTICLE IIILIABILITIES**

# ** **

It is expresslyunderstood and agreed that Buyer will be liable for all Liabilities related tothe ownership and operation of the Purchased Assets, which arise or areincurred from and after August 20, 2001, to the extent that the existenceat or after such date of such Liabilities does not constitute a breach of anyrepresentation or warranty made by Seller herein or in connectionherewith.  It is expressly understoodand agreed that Buyer will not assume any Liability of Seller or of itsAffiliates, including without limitation, any Liability relating to the ownershipor use of Purchased Assets or sale of products produced using the PurchasedAssets prior to August 20, 2001. Anything to the contrary herein notwithstanding, or in any other writingdelivered in connection herewith, nothing herein or in any such other writingshall be construed to constitute the assumption, express or implied, by Buyerof any Liability of Seller or of any Affiliate of Seller, or of Driveline, orany of its Affiliates.

 

# **ARTICLE IVPURCHASE PRICE AND MANNER OF PAYMENT**

# ** **

As the consideration tobe paid by Buyer to Seller for the purchase by Buyer from Seller of all of thePurchased Assets, Buyer will pay Seller the sum of (a) One Million SevenHundred 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 theconditions set forth in this Agreement have been fulfilled.  On the Closing Date, Buyer will wiretransfer the Base Amount to Seller in immediately available funds. Such wiretransfer to Seller of the Base Amount shall be made in accordance with Seller’swritten wire instructions provided to Buyer no later than one (1) Business Dayprior to the Closing Date.  TheReceivables Amount shall be paid out of the proceeds of the Receivables, whichthe parties have agreed that Seller shall collect on behalf of Buyer followingthe Closing.

 

# **ARTICLE V**REPRESENTATIONS AND WARRANTIES OFSELLER

# ** **

Seller hereby representsand warrants to Buyer as follows:

 

## Section 5.1                                      Organization.Seller is a corporation duly organized, validly existing and in good standingunder 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 thePurchased Assets to Buyer pursuant to this Agreement.

##  

## Section 5.2                                      Authority;Consents and Approvals.

##  

### (a)                                  Sellerhas all requisite corporate right, power and authority to execute, deliver andperform this Agreement and each other document and agreement referenced hereinto be executed and delivered by Seller pursuant hereto (together, the “Seller’sDocuments”).  The execution,delivery, and performance of the Seller’s Documents by Seller has been duly andvalidly 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 accordancewith their respective terms.

###  

### (b)                                 Theexecution, delivery and performance of the Seller’s Documents by Seller willnot (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 anyfederal, state or local Governmental Authority applicable to Seller or the PurchasedAssets, or any order, writ, injunction, judgment or decree of any court,administrative agency or other Governmental Authority applicable to Seller orthe Purchased Assets, (ii) violate either the Seller’s Articles ofIncorporation or Bylaws, as each is amended to the Closing Date, (iii) requireany consent under, conflict with or constitute a breach or default under anyagreement, indenture, mortgage, deed of trust, lease, or other instrument towhich Seller is a party or by which it is bound, or any license, permit orcertificate held by Seller, or (iv) require any consent of, approval by, noticeto or registration with any Governmental Authority.

###  

## Section 5.3                                      Titleto Purchased Assets.

##  

### (a)                                  Priorto the Repossession, (i) Seller had a perfected security interest in thePurchased Assets prior and superior to all others and (ii) Driveline defaultedin the performance of its obligations secured by such security interest.  Pursuant to the Repossession, Seller came intolawful possession of the Purchased Assets without breaching the peace inaccordance with all applicable laws and pursuant to the terms and conditions ofthe Repossession Agreement.  There areno parties with the right to redeem the Purchased Assets (specificallyincluding, but not limited to any guarantors or holders of any Liens).  Every aspect of the intended sale of thePurchased Assets from Seller to Buyer is commercially reasonable. Seller hasgiven legally sufficient notice of the sale to Driveline and to all otherparties that are entitled to receive such notice.

###  

### (b)                                 Selleris the sole and absolute owner of the Purchased Assets and has good andmarketable title to and the right to assign and convey the Purchased Assetsfree and clear of any and all Liens of any kind whatsoever. Seller’s ownershipof the Purchased Assets is not subject to any pending or, to Seller’sknowledge, threatened claim, defense, action or proceeding of any otherPerson.  At Closing, Seller will conveyto Buyer, and Buyer upon delivery to it of the Assignment and of the Bill ofSale by Seller at Closing will receive, all legal and beneficial title in andto all of the Purchased Assets, free and clear of any and all Liens thereon ofany kind whatsoever.

 

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## Section 5.4                                      NoInjunctions or Orders.  Seller isnot a party to any agreement, and Seller is not subject to nor, to theknowledge of Seller, threatened with, any injunctions of any court or orders ofany other Governmental Authority with respect to the Purchased Assets.

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## Section 5.5                                      Litigation.There is no suit, action, administrative proceeding, arbitration, grievance orother proceeding or governmental investigation pending or, to the knowledge ofSeller, threatened, against Seller which individually or in the aggregate couldadversely affect the Purchased Assets.

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## Section 5.6                                      Compliancewith Laws. Seller has not received any written notice claiming it is inviolation of, any order, law, ordinance, statute, rule or regulation applicableto the Purchased Assets where the consequences of such violation would have anadverse effect on the Purchased Assets.

##  

## Section 5.7                                      Brokers.  No agent, broker, investment banker, orother Person acting on behalf of Seller or under its authority is or will beentitled to any broker’s or finder’s fee or any other commission or similarfee, directly or indirectly, in connection with the transaction contemplated bythis Agreement.

##  

## Section 5.8                                      IntellectualProperty Rights.  Seller acquiredthe Intellectual Property from Driveline and L & S Manufacturing Corp.pursuant to the Repossession.  Sellerhas not received notice from any Person claiming that any operation, or act,product, technology or service relating to the Intellectual Property infringesor misappropriates the Intellectual Property of any Person, or that Drivelineor any of its Affiliates has engaged in unfair competition or trade practicesunder the laws of any relevant jurisdiction (nor does the Seller have knowledgeof any basis therefor). Seller is the sole and absolute owner of theIntellectual Property.  Seller has notassigned, transferred, or hypothecated its interest in the IntellectualProperty to any other person or entity. The Intellectual Property is not subject to any Liens, charges orencumbrances.

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

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# **ARTICLE VI**REPRESENTATIONS AND WARRANTIES OFBUYER

# ** **

Buyer hereby representsand warrants to Seller as follows:

 

## Section 6.1                                      Organization.Buyer is a corporation duly organized, validly existing and in good standingunder 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 tothis Agreement.

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## 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 agreementreferenced 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 byBuyer have been duly and validly authorized and approved by all necessarycorporate action. The

 

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

##  

## Section 6.3                                      NoViolations or Consents.  Theexecution, 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 anyfederal, state or local Governmental Authority applicable to Buyer, or anyorder, writ, injunction, judgment or decree of any court, administrative agencyor other Governmental Authority applicable to Buyer, (ii) violate Buyer’s Certificateof Incorporation or Bylaws, as each is amended to the Closing Date, (iii)require any consent under, conflict with or constitute a breach or defaultunder any agreement, indenture, mortgage, deed of trust, lease, license orother instrument to which Buyer is a party or by which it or any PurchasedAsset is bound, or any license, permit or certificate held by Buyer, or (iv)require any consent of, approval by, notice to or registration with anyGovernmental Authority.

##  

## Section 6.4                                      Compliancewith Laws. Buyer has not received any written notice claiming Seller is inviolation of, any order, law, ordinance, statute, rule or regulation applicableto the Purchased Assets where the consequences of such violation would have anadverse effect on the Purchased Assets.

##  

## Section 6.5                                      Brokers.  No agent, broker, investment banker, orother Person acting on behalf of Buyer or under its authority is or will beentitled to any broker’s or finder’s fee or any other commission or similarfee, directly or indirectly, in connection with the transaction contemplated bythis Agreement.

##  

## Section 6.6                                      Disclosures.  The representations, warranties orstatements by Buyer herein and in the Exhibits and Schedules attached heretoare true, complete and correct in all material respects and do not contain anyuntrue statement of a material fact.

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# **ARTICLE VII**CLOSING DELIVERIES

# ** **

The obligations of Buyerand Seller hereunder are subject to the satisfaction of the following Closingdeliveries that are conditions precedent unless specifically waived by theparties.

 

## Section 7.1                                      Seller’sClosing Deliveries.  Seller shallexecute and deliver, or cause to be executed and delivered, to Buyer on theClosing Date, each of the following:

##  

### (a)                                  ThisAgreement;

###  

### (b)                                 TheBill of Sale;

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### (c)                                  TheAssignment;

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### (d)                                 ExecutedUCC-3 Partial Releases in form satisfactory to Buyer, in its sole and absolutediscretion, sufficient to evidence the full and complete release of any and allLiens on the Purchased Assets;

 

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

##  

### (a)                                  ThisAgreement;

###  

### (b)                                 ThePurchase Price, paid in the manner required by the provisions of ArticleIV; and

###  

### (c)                                  Theasset purchase agreement of even date herewith between Buyer and PrimeFinancial Corporation, shall have been executed and delivered, and allconditions precedent thereto shall have been completed to the reasonable satisfactionof Seller.

###  

# **ARTICLE VIIIINDEMNIFICATION**

# ** **

## Section 8.1                                      Indemnificationof Buyer by Seller.  Subject to thelimitation imposed by Section 8.5 below, notwithstanding any investigation byBuyer or its representatives, the Seller, its successors and assigns, willindemnify and hold the Buyer, and its Affiliates, harmless from and fully payany and all Losses, that Buyer, or any of its Affiliates, may suffer or incuras a result of or relating to(a) the breach of any representations orwarranties made by Seller in Article and elsewhere in this Agreement, or in any other document delivered bySeller to Buyer pursuant hereto to include, without limitation, the Bill ofSale and the Assignment (collectively, the “Transaction Documents”), orany 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 theTransaction Documents, or (c) any Pre-Closing Liability.

##  

## Section 8.2                                      Indemnificationof Seller by Buyer.  Notwithstandingany investigation by Seller or its representatives, the Buyer, its successorsand assigns, will indemnify and hold Seller, and its Affiliates, harmless fromand fully pay any and all Losses that Seller, or any of its Affiliates, maysuffer or incur as a result of or relating to the breach of any representationsor 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 otherparty for any Losses incurred pursuant to this Article (the “IndemnifiedParty”), the Indemnified Party agrees to give prompt written notice to theother party (the “Indemnifying Parties”) upon the occurrence of anyindemnifiable or recoverable Loss or the assertion of any claim or thecommencement of any action or proceeding by any third party in respect of whichsuch a Loss may reasonably be expected to occur (a “Claim”), but theIndemnified Party’s failure to give such notice will not affect the obligationsof the Indemnifying Party under this Article except to the extent that theIndemnifying Party is materially prejudiced thereby.  Such written notice will include a reference to the event orevents forming the basis of such Loss or Claim and the amount involved, unlesssuch amount is uncertain or contingent, in which event the Indemnified Partywill give a later written notice when the amount becomes fixed.

##  

## Section 8.4                                      Defenseof Claims.  The Indemnifying Partymay elect to assume and control the defense of any Claim, including theemployment of counsel reasonably satisfactory to the Indemnified Party and thepayment of expenses related thereto, if (a) the Indemnifying Party acknowledgesits obligation to indemnify the Indemnified Party for any Losses resulting from

 

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

##  

## Section 8.5                                      Limitationon Maximum Amount of Liability of Seller for Indemnification Claims or Losses.  The maximum aggregate amount of Losses forwhich any Indemnifying Party, shall be obligated to pay to an IndemnifiedParty, pursuant to its obligations under Section 8.1 or 8.2 above, as the casemay be, shall not, in any event, exceed a total sum equal to the amountof the Purchase Price.

##  

# **ARTICLE IXFURTHER AGREEMENTS**

# ** **

## Section 9.1                                      AdditionalActions Seller and Buyer.  On andafter the Closing Date, Seller shall execute and deliver such documents and doand perform all such other acts as may reasonably be required by Buyer in orderfully to convey and transfer to and vest in Buyer all of the Purchased Assetsof Seller intended to be assigned, transferred and conveyed pursuant hereto.

##  

## Section 9.2                                      Costsand Transfer Taxes.  Except asotherwise set forth in this Agreement, each party hereto shall pay its owncosts and expenses (including legal fees and expenses) incurred in connectionwith due diligence reviews, the preparation, negotiation and execution of thisAgreement and all other agreements, certificates, instruments and documentsdelivered hereunder and all other matters relating to the consummation of thetransactions contemplated hereby, whether or not the proposed transaction isconsummated.  All sales, documentarystamp taxes and other transfer taxes in connection with the sale and deliveryof the Purchased Assets hereunder shall be paid by Seller.

##  

## Section 9.3                                      Booksand Records after Closing.  From andafter the Closing, Buyer shall have free and open access to all books andrecords which Seller may have relating in any manner to the Purchased Assetsand Seller shall furnish Buyer with copies thereof.

##  

## Section 9.4                                      Deliveryof Property Received After Closing. Seller agrees that it will transfer or deliver to Buyer, promptly afterthe receipt thereof, any cash or other property which

 

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

##  

# **ARTICLE XMISCELLANEOUS**

# ** **

## Section 10.1                      EntireUnderstanding, Waiver, Etc.  ThisAgreement (including all schedules and exhibits attached hereto) and all otheragreements executed and delivered at the Closing set forth the entireunderstanding of the parties and supersede any and all prior or contemporaneousagreements, arrangements and understandings relating to the subject matterhereof, and the provisions hereof may not be changed, modified, waived oraltered except by an agreement in writing signed by the parties hereto.  A waiver by any party of any of the terms orconditions of this Agreement, or of any breach thereof, shall not be deemed awaiver of such term or condition for the future, or of any other term orcondition hereof, or of any subsequent breach thereof.

##  

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

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

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

 

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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                                             |   |
|        |        |                                                                                    |        |  |

 

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

 

## Section 10.5                      Successorsand Assigns.  Neither this Agreementnor any of the rights or obligations arising hereunder shall be assignablewithout the prior written consent of the parties

 

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

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## Section 10.6                      Survivalof Representations and Warranties. The representations, warranties, covenants and agreements made by Sellerand by Buyer, respectively, in this Agreement shall survive the Closing Datehereunder for ninety (90) months and shall also survive and shall be unaffectedby (and shall not be deemed waived by) any investigation, audit, appraisal, orinspection at any time made by or on behalf of Buyer.

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## Section 10.7                      Schedulesand Exhibits.  The schedules andexhibits attached hereto shall form a part of this Agreement and are herebyincorporated into this Agreement by reference.

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

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## Section 10.9                      Constructionof Terms.  Any reference herein tothe masculine or neuter shall include the masculine, the feminine and theneuter, and any reference herein to the singular or plural shall include theopposite thereof.  The parties to thisAgreement acknowledge that each party and counsel to each party hasparticipated in the drafting of this Agreement and agree that this Agreementshall not be interpreted against one party or the other based upon who draftedit.

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## Section 10.10                Attorneys’Fees and Costs.  Unless otherwiseprovided herein to the contrary, in the event any action or proceeding iscommenced by any party to this Agreement to (a) determine rights, duties orobligations under this Agreement, (b) determine a breach of this Agreement andobtain damages as a result of such breach or (c) otherwise enforce thisAgreement, the prevailing party in such action or proceeding shall be entitledto recover from the non-prevailing party all of the prevailing party’sout-of-pocket costs and expenses, including, without limitation, all reasonableattorneys’ fees, disbursements and related charges.  A party will be considered the prevailing party if (i) itinitiated the litigation and substantially obtains the relief it sought, eitherthrough a judgment or arbitration award or the losing party’s voluntary actionbefore arbitration, trial, or judgment, (ii) the other party withdraws itsaction without substantially obtaining the relief it sought, or (iii) suchparty did not initiate the litigation and judgment is entered into for anyparty,****butwithout substantially granting the relief sought by the initiating party orgranting more substantial relief to the non-initiating party with respect toany counterclaim, asserted by the non-initiating party in connection with such litigation.

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## Section 10.11                **GoverningLaw.  THIS AGREEMENT SHALL BECONTROLLED, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS AND DECISIONS OFTHE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THATSTATE, WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW RULE OR PRINCIPLE THATMIGHT REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.**

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## Section 10.12                FacsimileExecution. Each counterpart of this Agreement may be executed andtransmitted by facsimile transmission. The parties will initially accept facsimile

 

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

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[The Remainder of this Page Intentionally Left Blank]

 

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IN WITNESS WHEREOF, the parties have duly executedthis 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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