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 11.11
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 11.12
FACSIMILE EXECUTION.
EACH COUNTERPART OF
THIS AGREEMENT MAY BE EXECUTED AND TRANSMITTED BY FACSIMILE TRANSMISSION.
THE
PARTIES WILL INITIALLY ACCEPT FACSIMILE 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.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement on the day and
year first above written.
SELLER:
PRIME FINANCIAL CORPORATION.
By:
/s/David R. Goss
Name:
David R. Goss
Title:
Vice President
BUYER:
OBB ACQUISITION CORP.
By:
/s/Michael S. Gostomski
Name:
Michael S. Gostomski
Title:
Executive Vice President
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SCHEDULE 9.1
CUSTOMERS SUBJECT TO NON-COMPETE
1
Dana Kirkstall Specialty Axle
2
Holland Hitch International
3
Westport Axle Corporation
4
Bergstrom Company
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