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Contracts Keyed to Calamari
New York Bronze Powder Co. v. Benjamin Acquisition Corp.
Facts
On March 15, 1990, the New York Bronze Powder Company, Inc. ("New York Bronze") entered into an agreement with Benjamin Acquisition Corporation ("Benjamin"). Pursuant to the agreement, Benjamin agreed to purchase from New York Bronze, all the assets of Benjamin F. Rich Company ("Rich") for $4.5 million. Benjamin also agreed to assume certain of Rich's liabilities. Shortly before the closing scheduled on April 30, 1990, Benjamin became concerned about the valuation of certain of Rich's assets. Benjamin's concerns were alleviated when the parties entered into an Amendment of the purchase agreement ("Amendment No. 1"). Section 3 of Amendment No. 1 allowed for $350,000 of the purchase price to be deferred, and required Benjamin to execute a non-negotiable note to New York Bronze in that amount. Pursuant to Section 3 of Amendment No. 1, Benjamin was to retain an accounting firm to create an audited balance sheet of Rich. Benjamin was required to use its best efforts to deliver the audited balance sheet to New York Bronze by June 14, 1990. If the audited balance sheet evidenced that Rich was worth less than $4.5 million, then Benjamin was entitled to a "dollar for dollar credit against the $350,000 deferred purchase price." For some reason, the accounting firm never completed its audit and Benjamin never paid off the note. New York Bronze sued Benjamin for failure to pay the note. An issue arose as to whether §4.2 on the Note, which reads as follows was a promise or a condition: "Payments of any portion of the principal of this Note shall be made by check drawn on a United States commercial bank and shall be mailed by registered mail, return receipt requested, on or prior to the date on which such payment is due, to the Noteholder at the address set forth in the Purchase Agreement. If the date on which any payment hereunder is due is not a Business Day, then such payment shall be due on the next succeeding Business Day. The Noteholder shall be required to surrender this Note for cancellation upon the maturity or prepayment in full of this Note in order to receive payment."
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