\nARTICLE VII SURVIVAL; INDEMNIFICATION……………………………….. 70<\/p>\n Section 7.1 Survival…………………………………………….. 70
\n Section 7.2 Indemnification………………………………………. 70
\n Section 7.3 Environmental Indemnification………………………….. 74
\n Section 7.4 Arbitration………………………………………….. 76
\n Section 7.5 Exclusive Remedy……………………………………… 76
\n Section 7.6 Adjustment to Purchase Price…………………………… 77<\/p>\n
ARTICLE VIII TERMINATION……………………………………………. 77<\/p>\n
Section 8.1 Termination………………………………………….. 77
\n Section 8.2 Procedure and Effect of Termination…………………….. 78
\n Section 8.3 Wrongful Termination………………………………….. 78<\/p>\n
ARTICLE IX MISCELLANEOUS………………………………………….. 78<\/p>\n
Section 9.1 Counterparts…………………………………………. 78
\n Section 9.2 Governing Law………………………………………… 78
\n Section 9.3 No Third Party Beneficiaries…………………………… 78
\n Section 9.4 Entire Agreement……………………………………… 79
\n Section 9.5 Expenses…………………………………………….. 79
\n Section 9.6 Notices……………………………………………… 79
\n Section 9.7 Successors and Assigns………………………………… 80
\n Section 9.8 Headings; Interpretation………………………………. 81
\n Section 9.9 Amendments and Waivers………………………………… 81
\n Section 9.10 Specific Performance………………………………….. 81
\n Section 9.11 Severability of Provisions…………………………….. 81
\n Section 9.12 Consent to Jurisdiction……………………………….. 82
\n Section 9.13 Joint Preparation…………………………………….. 82
\n Section 9.14 Time………………………………………………… 82
\n<\/c><\/s><\/table>\n
Exhibit Description
\n——- ———–
\nA Trademark License Agreement
\nB Indemnification<\/p>\n
Schedule Description
\n——– ———–
\n6.2(f) Required Consents<\/p>\n
-iii-<\/p>\n
ASSET PURCHASE AGREEMENT
\n ————————<\/p>\n
THIS ASSET PURCHASE AGREEMENT (“Agreement”) dated as of the 4th day of
\n ———
\nJune, 2001, is made and entered into by and among: (a) Amana Appliance Company,
\nL.P., a Texas limited partnership (“Seller”), of which Amana Holding Company, a
\n ——
\nTexas corporation (“Holding”), is the sole general partner; (b) Goodman Global
\n ——-
\nHoldings, Inc., a Texas corporation (“Global”); (c) Maytag Corporation, a
\n ——
\nDelaware corporation (“Buyer”), and (d) Maytag Worldwide N.V., a Netherlands
\n —–
\nAntilles corporation and an indirect wholly-owned subsidiary of Buyer (“Maytag
\n ——
\nWorldwide”).
\n——— <\/p>\n
WHEREAS, Seller (i) manufactures, markets, sells, distributes and services
\na full range of refrigerators, freezers, washers, dryers, freestanding, built-in
\nand cooktop cooking equipment, dishwashers and microwave ovens for commercial
\nand consumer use (the “Appliance Business”) and (ii) markets, sells and
\n ——————
\ndistributes, through the same channels as the Appliance Business, and services
\ncertain room air conditioners and dehumidifiers (the “Transferred Room A\/C
\n ——————–
\nBusiness”) (the Appliance Business and the Transferred Room A\/C Business being
\n——–
\ncollectively referred to as the “Business”); and
\n ——– <\/p>\n
WHEREAS, Seller, Holding, Amana Company, L.P., a Delaware limited
\npartnership and the former owner of the Business (“Former Owner”), and others
\n ————
\nrecently consummated the transactions contemplated by a Restated Bifurcation
\nAgreement dated as of March 16, 2001, as amended (“Bifurcation Agreement”),
\n ———————
\npursuant to which the Business was transferred by the Former Owner to Seller and
\nthe limited partnership interests in Seller and the shares in Holding were
\ndistributed in a series of transactions to persons who currently own equity
\ninterests in Global; and<\/p>\n
WHEREAS, Seller, Global, Buyer and Maytag Worldwide desire to enter into
\nthis Agreement pursuant to which Seller is agreeing to sell to Buyer and Maytag
\nWorldwide, and Buyer and Maytag Worldwide are agreeing to purchase from Seller,
\nsubstantially all of the assets and properties of Seller, and Buyer is agreeing
\nto assume certain obligations and liabilities of Seller applicable to the
\nBusiness; and<\/p>\n
WHEREAS, the Board of Directors of Global has concluded that the execution
\nand delivery of this Agreement by Global and its commitment to become jointly
\nand severally liable for Seller’s obligations hereunder may reasonably be
\nexpected to benefit, directly or indirectly, Global and its shareholders;<\/p>\n
NOW, THEREFORE, the parties hereto agree as follows:<\/p>\n
ARTICLE I
\n DEFINITIONS
\n ———–<\/p>\n
As used in this Agreement, the following terms shall have the following
\nmeanings:<\/p>\n
“ABO” has the meaning set forth in Section 5.13(c)(ii)(B).
\n — ———————- <\/p>\n
1<\/p>\n
“Access Period” means the longer of: (a) a period of three (3) years from
\n ————-
\nand after the Closing Date; or (b) the period of time, commencing on the Closing
\nDate and ending on the date on which Taxes may no longer be assessed against
\nSeller or Former Owner with respect to the operations of the Business under
\napplicable statutes of limitation, including the period covered by any waivers
\nor extensions thereof.<\/p>\n
“Accounts Payable” means all of Seller’s accounts payable (excluding
\n —————-
\naccounts payable to Former Owner and its Affiliates), accrued expenses and other
\ncurrent liabilities (including prepaid sales and accrued freight) with respect
\nto the Business as of the Closing Date.<\/p>\n
“Adjourned Date” has the meaning set forth in Section 5.17.
\n ————– ———— <\/p>\n
“Adjusted Working Capital” means the excess of the current assets over the
\n ————————
\ncurrent liabilities reflected on the December 31 Pro Forma Balance Sheet or the
\nClosing Date Pro Forma Balance Sheet, as the case may be.<\/p>\n
“Affiliate” means, with respect to any person: (a) any person directly or
\n ———
\nindirectly owning all of the outstanding voting securities or other voting
\ninterests or general partnership interests of such other person; (b) any person
\nall of whose outstanding voting securities or other voting interests or general
\npartnership interests are directly or indirectly owned by such other person; and
\n(c) any person all of whose outstanding voting securities or other voting
\ninterests are directly or indirectly owned by a person referred to in clause (a)
\nabove. By way of illustration, Seller’s Affiliates include Holding and AFSI;
\nGlobal’s Affiliates include Former Owner and all of Global’s direct and indirect
\nwholly-owned Subsidiaries.<\/p>\n
“AFSI” means Amana Financial Services, Inc., a Delaware corporation.
\n —- <\/p>\n
“Agreement” has the meaning set forth in the introductory paragraph.
\n ——— <\/p>\n
“Agreed Adjustments” has the meaning set forth in Section 2.6(d).
\n —————— ————– <\/p>\n
“Allocation Schedule” has the meaning set forth in Section 2.8.
\n ——————- ———– <\/p>\n
“Amana Finance” means the Illinois general partnership in which AFSI and
\n ————-
\nTransamerica Joint Venture, Inc. each owns a 50% interest.<\/p>\n
“Amana Finance Partnership Documents” means (i) the Joint Venture
\n ———————————–
\nAgreement dated as of April 26, 1995 between Amana Refrigeration, Inc. and
\nTransamerica Commercial Finance Corporation, as amended by Agreement dated as of
\nJuly 1, 1998 between Amana Company, L.P. and Transamerica Commercial Finance
\nCorporation, and (ii) the Partnership Agreement dated as of April 26, 1995
\nbetween AFSI and Transamerica Joint Ventures, Inc.<\/p>\n
“Amana 401K Plan” has the meaning set forth in Section 5.13(d).
\n ————— ————— <\/p>\n
Amana Finance 4\/30 Balance Sheet” has the meaning set forth in Section
\n ——————————– ——-
\n3.16(c).
\n——- <\/p>\n
“Antitrust Division” means the Antitrust Division of the United States
\n ——————
\nDepartment of Justice.<\/p>\n
-2-<\/p>\n
“Appliance Business” has the meaning set forth in the first recital to this
\n ——————
\nAgreement.<\/p>\n
“Assumed Liabilities” has the meaning set forth in Section 2.3.
\n ——————- ———– <\/p>\n
“AsureCare” means AsureCare Corp., a Florida corporation and indirect
\n ———
\nwholly owned subsidiary of Global.<\/p>\n
“AsureCare Agreement” means an agreement between Buyer and AsureCare
\n ——————-
\nrelating to the servicing by Buyer after the Closing of certain warranties
\nwritten by AsureCare, such agreement to be in form and substance reasonably
\nacceptable to Buyer and Global.<\/p>\n
“Bankruptcy Exceptions” means the extent to which enforcement of an
\n ———————
\nagreement, instrument or other document (a) may be limited by bankruptcy,
\ninsolvency (including all laws relating to fraudulent transfers),
\nreorganization, moratorium or similar laws affecting the enforcement of
\ncreditors rights generally; and (b) is subject to general principles of equity
\n(regardless of whether enforcement is considered in a proceeding in equity or at
\nlaw).<\/p>\n
“Bargaining Unit Employees” has the meaning set forth in Section
\n ————————- ——-
\n5.13(a)(i).
\n———-<\/p>\n
“Bifurcation” has the meaning set forth in Section 3.25.
\n ———– ———— <\/p>\n
“Bifurcation Agreement” has the meaning set forth in the second recital to
\n ———————
\nthis Agreement.<\/p>\n
“Black-out Period” has the meaning set forth in Section 5.21(b).
\n —————- ————— <\/p>\n
“Bulk Sales Laws” has the meaning set forth in Section 5.10.
\n ————— ———— <\/p>\n
“Business” has the meaning set forth in the first recital to this
\n ——–
\nAgreement.<\/p>\n
“Business Agreements” has the meaning set forth in Section 3.10(c).
\n ——————- ————— <\/p>\n
“business day” means each day other than a Saturday, Sunday or other day in
\n ————
\nthe City of Wilmington, Delaware on which national banks are authorized by law
\nor regulation not to open for business.<\/p>\n
“Buyer” has the meaning set forth in the introductory paragraph of this
\n —–
\nAgreement.<\/p>\n
“Buyer Indemnifiable Losses” means, as of any date, the sum of (i)
\n ————————–
\nIndemnifiable Damages incurred by Buyer Indemnified Parties prior to such date
\nfor which they would be entitled to indemnification under Section 7.2(a)(ii)(A)
\n ———————
\nbut for Section 7.2(f)(i) plus (ii) the Uncollected Receivables Amount that
\n —————– —-
\nwould have been payable but for the first proviso of Section 5.19(c).
\n ————— <\/p>\n
“Buyer Indemnified Parties” has the meaning set forth in Section 7.2(a).
\n ————————- ————– <\/p>\n
“Buyer SEC Filings” has the meaning set forth in Section 4.7.
\n —————– ———– <\/p>\n
“Buyer Welfare Plans” has the meaning set forth in Section 5.13(b)(iii).
\n ——————- ——————– <\/p>\n
-3-<\/p>\n
“Buyer’s Actuary” has the meaning set forth in Section 5.13(c)(ii)(B).
\n ————— ———————- <\/p>\n
“Buyer’s FSA” has the meaning set forth in Section 5.13(e).
\n ———– ————— <\/p>\n
“Buyer’s Savings Plan” has the meaning set forth in Section 5.13(d).
\n ——————– ————— <\/p>\n
“CERCLA” has the meaning set forth in the definition of “Environmental
\n ——
\nLaw.”<\/p>\n
“Change in Adjusted Working Capital” means the positive or negative
\n ———————————-
\ndifference, if any, between the Adjusted Working Capital reflected on the
\nDecember 31 Pro Forma Balance Sheet and the Adjusted Working Capital reflected
\non the Closing Date Pro Forma Balance Sheet, but in no event shall the December
\n31 Pro Forma Balance Sheet, the Closing Date Pro Forma Balance Sheet, or the
\nStatement of Change in Adjusted Working Capital include any provision for any
\nTaxes, except that the Closing Date Pro Forma Balance Sheet shall include
\naccrued liabilities with respect to employment taxes and real and personal
\nproperty taxes, in each case to the extent set forth in Section 5.15.
\n ———— <\/p>\n
“COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985.
\n —– <\/p>\n
“Claim Notice” has the meaning set forth in Section 7.2(c).
\n ———— ————– <\/p>\n
“Claim of Environmental Liability” means any and all claims, liabilities,
\n ——————————–
\nobligations, judgments, penalties, expenses, losses or damages (including
\nnatural resource damages) relating to the Purchased Assets or the Business,
\nresulting from: (a) any suit, action, administrative proceeding, notice,
\ninvestigation or demand asserted or threatened by any third-party (including any
\ngovernmental agency or authority) arising under any Environmental Law; (b)
\nrequirements imposed by any Environmental Law, including costs of remediation or
\ncosts incurred in obtaining applicable permits or complying with any
\nEnvironmental Law; or (c) the presence or release into the environment of any
\nHazardous Substances, in each case where the resulting loss, claim or demand
\narises from or relates to conditions existing or events occurring on or prior to
\nthe Closing Date.<\/p>\n
“Closing” has the meaning set forth in Section 6.1.
\n ——- ———– <\/p>\n
“Closing Date” means the date and effective time at which the Closing
\n ————
\noccurs.<\/p>\n
“Closing Date Pro Forma Balance Sheet” means the pro forma consolidated
\n ————————————
\nbalance sheet of Seller reflecting the Purchased Assets and the Assumed
\nLiabilities as of the Closing Date, which shall be prepared in accordance with
\nGAAP consistently applied, except as provided in the footnotes to the December
\n31 Pro Forma Balance Sheet and in the definition of Change in Adjusted Working
\nCapital.<\/p>\n
“Closing Date Receivables” has the meaning set forth in Section 5.19(a).
\n ———————— ————— <\/p>\n
“Code” means the Internal Revenue Code of 1986.
\n —- <\/p>\n
“Collection Report” has the meaning set forth in Section 5.19(b).
\n —————– ————— <\/p>\n
-4-<\/p>\n
“Collective Bargaining Agreements” means the collective bargaining
\n ——————————–
\nagreements relating to the Business to which Seller is a party and which are
\nlisted in Section 3.11(a) of the Disclosure Schedule.
\n ————— <\/p>\n
“Confidentiality Agreements” means the Confidentiality Agreement dated
\n ————————–
\nDecember 18, 2000, by and between Former Owner and Buyer and the Confidentiality
\nAgreement dated May 31, 2001 by and among Buyer, Seller and Global.<\/p>\n
“Contracts” means all contracts, agreements, commitments, and leases of
\n ———
\npersonal property (including computer equipment and programs) with customers,
\nsuppliers, vendors, lessors, lessees, utilities, providers or others entered
\ninto by Seller, Seller’s Affiliates or Former Owner primarily for or on behalf
\nof the Business, including those Contracts listed in the Disclosure Schedule.<\/p>\n
“Credit Agreement” means the Second Amended and Restated Credit Agreement
\n —————-
\ndated as of March 26, 2001 among Global and certain of its Affiliates, the
\nLenders and the other parties thereto.<\/p>\n
“December 31 Pro Forma Balance Sheet” means the pro forma consolidated
\n ———————————–
\nbalance sheet of Seller reflecting the Purchased Assets and the Assumed
\nLiabilities as of December 31, 2000, in the form included in Section 3.16 of the
\n ————
\nDisclosure Schedule and prepared in accordance with GAAP, except as provided in
\nthe footnotes thereto.<\/p>\n
“Disclosed Claim of Environmental Liability” means any Claim of
\n ——————————————
\nEnvironmental Liability set forth in Section 3.3 of the Disclosure Schedule.
\n ———– <\/p>\n
“Disclosure Schedule” means the Disclosure Schedule, dated as of the date
\n ——————-
\nof this Agreement, delivered to Buyer by Seller, as amended and updated pursuant
\nto Section 5.14.
\n ———— <\/p>\n
“Employees” has the meaning set forth in Section 5.13(a)(i).
\n ——— —————— <\/p>\n
“Encumbrances” means any mortgages, liens, security interests, claims,
\n ————
\npledges, assignments, charges, options, rights of tenants or others, rights of
\nfirst refusal or other title retention agreements, easements, defects in title,
\ncovenants, conditions or other restrictions of any nature whatsoever.<\/p>\n
“Environmental Claims Period” means the period commencing on the Closing
\n —————————
\nDate and ending on the day immediately preceding the eighth (8\/th\/) anniversary
\nof the Closing Date.<\/p>\n
“Environmental Exposure Claim” shall mean any third party lawsuits, claims
\n —————————-
\nor demands alleging bodily injury, adverse health effects or death, or seeking
\nmedical monitoring, arising out of or related to an exposure to any Release of
\nHazardous Substance on or emanating from the Purchased Assets or related to the
\noperations of the Business, in each case where the resulting loss, demand or
\nclaim arises from or relates to conditions existing or events occurring on or
\nprior to the Closing Date.<\/p>\n
“Environmental Law” means any federal, state, or local law (including
\n —————–
\ncommon law), rule, regulation, order, ordinance, writ, judgment, injunction,
\ndecree, or determination applicable <\/p>\n
-5-<\/p>\n
to the Business as in effect on the Closing Date to the extent relating to the
\nprotection of the environment, the release or threatened release of any
\nHazardous Substances into the environment, the generation, management,
\ntransportation, storage, treatment and disposal of Hazardous Substances, or the
\npollution of air, soil, groundwater or surface water (including the Clean Air
\nAct, the Toxic Substance Control Act, the Clean Water Act, the Comprehensive
\nEnvironmental Response, Compensation and Liability Act (“CERCLA”), and the
\n ——
\nResource Conservation and Recovery Act (“RCRA”), or their state counterparts or
\n —-
\nanalogues, but excluding the Occupational Safety and Health Act).<\/p>\n
“Environmental Matters” means (a) any obligation or liability arising under
\n ———————
\nany Environmental Law; (b) any Claim of Environmental Liability; or (c) any
\nEnvironmental Exposure Claim.<\/p>\n
“Equipment” means all of the machinery, equipment, vehicles, including
\n ———
\ntractors, trailers and other transportation equipment, office furniture and
\noffice equipment located on or in transit to, the Real Property and the Leased
\nProperty that are used or held for use primarily in connection with the
\nBusiness.<\/p>\n
“ERISA” means the Employee Retirement Income Security Act of 1974.
\n —– <\/p>\n
“Estimated Change in Adjusted Working Capital” has the meaning set forth in
\n ——————————————–
\nSection 2.5(b)(i)(B).
\n——————– <\/p>\n
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
\n ———— <\/p>\n
“Excluded Assets” has the meaning set forth in Section 2.2.
\n ————— ———– <\/p>\n
“Excluded Liabilities” has the meaning set forth in Section 2.4.
\n ——————– ———– <\/p>\n
“Extraordinary Distributive Item” has the meaning set forth in Section
\n ——————————-
\n5.15(e).<\/p>\n
“FTC” means the United States Federal Trade Commission.
\n — <\/p>\n
“Financial Statements” has the meaning set forth in Section 3.16(b).
\n ——————– ————— <\/p>\n
“Fixtures and Improvements” means the buildings, structures, fixtures and
\n ————————-
\nother fixed assets and personalty of a permanent nature annexed, affixed or
\nattached to the Real Property or the Leased Property.<\/p>\n
“Former Employees” has the meaning set forth in Section 5.13(a)(i).
\n —————- —————— <\/p>\n
“Former Owner” has the meaning set forth in the second recital to this
\n ————
\nAgreement.<\/p>\n
“General Basket Amount” means an amount equal to Two Million Dollars
\n ———————
\n($2,000,000.00).<\/p>\n
-6-<\/p>\n
“Generally Accepted Accounting Principles” or “GAAP” means generally
\n —————————————- —-
\naccepted accounting principles in the United States (as such term is used in the
\nAmerican Institute of Certified Public Accountants Professional Standards).<\/p>\n
“Global” has the meaning set forth in the introductory paragraph of this
\n ——
\nAgreement.<\/p>\n
“Goodman 401K Plan” has the meaning set forth in Section 5.13(d).
\n —————– ————— <\/p>\n
“Government Contract” has the meaning set forth in Section 3.20.
\n ——————- ———— <\/p>\n
“Hazardous Substances” means any hazardous or toxic materials, substances
\n ——————–
\nor wastes, including any petroleum or petroleum product or derivative thereof
\nand any pollutants or contaminants, as defined in or regulated as such pursuant
\nto any Environmental Law.<\/p>\n
“Holding” has the meaning set forth in the introductory paragraph of this
\n ——-
\nAgreement.<\/p>\n
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.
\n ——- <\/p>\n
“HVAC Business” means the manufacture or distribution of heating,
\n ————-
\nventilating and air conditioning equipment and related products of every type
\nand description, including room air conditioning units, other than the
\nTransferred Room A\/C Business.<\/p>\n
“Inactive Employee” has the meaning set forth in Section 5.13(a)(i).
\n —————– —————— <\/p>\n
“Indemnifiable Damages” means any and all liabilities, losses, claims,
\n ———————
\njudgments, damages, fines, penalties, environmental response costs, natural
\nresource damages, expenses and costs (including reasonable counsel fees and
\ncosts and expenses incurred in connection therewith), together with interest
\nthereon from the date such damages are incurred at an interest rate equal to the
\nprime rate in effect on the Closing Date as reported in The Wall Street Journal
\n ———————–
\nand as revised on each anniversary of the Closing Date by reference to the prime
\nrate reported in The Wall Street Journal for such anniversary date or, if the
\n ———————–
\nanniversary date falls on a Saturday, Sunday or other day on which The Wall
\n ——–
\nStreet Journal is not published, the next day on which The Wall Street Journal
\n————– ———————–
\nis published.<\/p>\n
“Indemnitor” has the meaning set forth in Section 7.2(c).
\n ———- ————– <\/p>\n
“Intellectual Property” means all: (a) patents, patent applications,
\n ———————
\ncontinuations, continuations-in-part, divisions, reissues, patent disclosures,
\ninventions (whether patentable or unpatentable and whether or not reduced to
\npractice) and improvements thereto; (b) trademarks, service marks, trade dress,
\nlogos, trade names, and corporate names, and any other source-identifying
\ndesignations or devices, including Internet domain names and registrations
\nthereof, along with the good will associated with the foregoing and
\nregistrations and applications for registration thereof (“Trademarks”); (c)
\n ———-
\ncopyrights and registrations and applications for registration thereof; (d) mask
\nworks and registrations and applications for registration thereof; (e) computer
\nsoftware, data and documentation; (f) trade secrets and confidential business
\ninformation (including ideas, formulas, and compositions, know-how,
\nmanufacturing and production processes and techniques, research and development
\ninformation, software products in development, drawings, specifications,
\ndesigns, plans, proposals, technical data, financial <\/p>\n
-7-<\/p>\n
(excluding employee benefit plans), marketing, and business data, pricing and
\ncost information, business and marketing plans, and customer and supplier lists
\nand information) and other proprietary information; and (g) copies and tangible
\nembodiments thereof (in whatever form or medium).<\/p>\n
“Interim Services Agreement” means an agreement between Buyer and Global
\n ————————–
\nrelating (i) to interim computer and administrative services to be provided
\nafter the Closing by Buyer to Global and its Affiliates for a fixed price of
\n$250,000 per month and a period ending no later than December 31, 2001 and (ii)
\nif necessary, the sharing by Buyer of space at certain Leased Properties with
\nGlobal and its Affiliates for a term and consideration to be agreed upon by
\nBuyer and Global, such agreement to be otherwise in form and substance
\nreasonably acceptable to Buyer and Global.<\/p>\n
“Inventory” means all of the inventory of raw materials, work-in-process,
\n ———
\nfinished goods, parts, scrap, wrapping, operating supplies and packaging items
\nand finished goods used or to be used primarily in the Business (including any
\nin-transit or mill direct inventory, except for: (a) such finished goods as have
\nbeen purchased by customers of Seller and are being held, stored or retained for
\nsuch customers; and (b) all supplies and raw materials owned by third parties
\nand stored at any parcel of Real Property or Leased Property).<\/p>\n
“Knowledge” as used in the phrases “to the knowledge of Seller,” “to the
\n ———
\nbest knowledge of Seller” or “to Seller’s knowledge” or similar references to
\nthe knowledge of Seller means the actual knowledge of those persons set forth in
\nSection 1 of the Disclosure Schedule.
\n——— <\/p>\n
“Leased Property” means the parcels of real property leased by Seller (as
\n —————
\ntenant) pursuant to the Leases, together with: (a) all of Seller’s right, title
\nand interest in and to the Fixtures and Improvements and any other tenant
\nimprovements located on such real property, if any; and (b) all of Seller’s
\nright, title and interest in and to all easements, rights, and privileges
\nappurtenant thereto, if any.<\/p>\n
“Leases” means all leases and subleases of real property listed in Section
\n —— ——-
\n3.4(b) of the Disclosure Schedule, including all of Seller’s rights and options
\n——
\nunder such leases and subleases.<\/p>\n
“Lenders” means the lending institutions that are parties to the Credit
\n ——-
\nAgreement.<\/p>\n
“Material Adverse Effect” means any condition, circumstance, change or
\n ———————–
\neffect that is or is reasonably likely to be materially adverse to the Purchased
\nAssets, the Business or the results of operations, profits, prospects or
\ncondition (financial or otherwise) of Seller, with respect to the Business,
\nconsidered as a whole, but excluding the effect of any factors affecting the
\nmajor appliance manufacturing and distributing businesses generally.<\/p>\n
“Maytag Common Stock” means Common Stock, $1.25 par value, of Buyer.
\n ——————- <\/p>\n
“Maytag Shares” has the meaning set forth in Section 2.5(a).
\n ————- ————– <\/p>\n
“Maytag Stock Valuation” means the product of (i) 500,000 times (ii) $33.00
\n ———————- —–
\n(being the closing price per share of Maytag Common Stock on the New York Stock
\nExchange on June 4, 2001).<\/p>\n
-8-<\/p>\n
“Maytag Worldwide” has the meaning set forth in the introductory paragraph
\n —————-
\nof this Agreement.<\/p>\n
“Net Amount of Receivables” has the meaning set forth in Section 5.19(c).
\n ————————- ————— <\/p>\n
“Neutral Accountants” means the Chicago office of KPMG, independent
\n ——————-
\ncertified public accountants. If KPMG is unable or unwilling to serve in such
\ncapacity, the Chicago office of an independent certified public accounting firm
\nagreed upon by the parties shall be the Neutral Accountants.<\/p>\n
“Other Current Assets” means all prepaid and deferred items (including
\n ——————–
\nprepaid rent and other prepaid expenses) or credits and deposits, rights of
\noffset and credits and claims for refund (other than Tax refunds arising from or
\npertaining to periods prior to the Closing Date) generated or incurred by or in
\nconnection with the Business.<\/p>\n
“Overlap Period” shall mean any taxable year or period beginning on or
\n ————–
\nbefore and ending after the Closing Date.<\/p>\n
“Past Service” has the meaning set forth in Section 5.13(b)(i).
\n ———— —————— <\/p>\n
“Pension Plan” has the meaning set forth in Section 5.13(c)(i).
\n ———— —————— <\/p>\n
“Permits” means governmental licenses, certificates, permits, franchises,
\n ——-
\napprovals, authorizations, exemptions, registrations, and rights relating to the
\nBusiness.<\/p>\n
“Permitted Exceptions” means:
\n ——————– <\/p>\n
(a) all liens for Taxes and assessments, both general and special, and
\nother governmental charges which are not yet due and payable as of the Closing
\nDate;<\/p>\n
(b) with respect to each parcel of Real Property, the exceptions to title
\nreflected in the title commitments previously delivered to Buyer with respect to
\nthe real property located in Searcy, Arkansas and Florence, South Carolina
\n(other than Encumbrances which can be removed by the payment of money);<\/p>\n
(c) with respect to each parcel of Real Property and Leased Property,
\nother imperfections of title, easements and encumbrances (other than items for
\nthe payment of indebtedness which encumber the leasehold interests, if any),
\nwhich do not individually or in the aggregate materially detract from the value
\nof or materially interfere with the present use of such parcel; and<\/p>\n
(d) any Encumbrances arising under the Credit Agreement that will not
\nsurvive the Closing.<\/p>\n
“Permitted Encumbrances” means: (a) all Encumbrances arising under the
\n ———————-
\nCredit Agreement that will not survive the Closing, and (b) inchoate mechanic’s
\nand materialmen’s liens for construction in progress and workmen’s, repairmen’s,
\nwarehousemen’s, carrier’s and <\/p>\n
-9-<\/p>\n
other similar statutory liens arising in the ordinary course of business in
\nrespect of obligations that are not yet due.<\/p>\n
“Permitted Transferee” means (i) any shareholder of Holding or any limited
\n ——————–
\npartner of Seller to whom Seller transfers Maytag Shares and that confirms in
\nwriting the representations set forth in Section 3.26 and agrees in writing to
\n ————
\nbe bound by Section 5.21 and (ii) any other person or entity to whom Seller
\n ————
\ntransfers Maytag Shares pursuant to an exemption from the registration
\nrequirements of the Securities Act prior to the first anniversary of the
\nClosing.<\/p>\n
“Product Basket Amount” means $10,000,000.
\n ——————— <\/p>\n
“Product Liability Claims” means any and all product liability claims or
\n ————————
\nother claims for injury to person or property relating to products of the
\nBusiness, whether based on theories of tort, contract, strict liability, express
\nor implied warranty of otherwise.<\/p>\n
“Product Warranty Claims” means any and all (a) demands for refunds,
\n ———————–
\nreturns or allowances pertaining to products of the Business, without regard to
\nthe date of manufacture, shipment or sale of the product or the design of the
\nproduct in question; and (b) claims (other than Product Liability Claims)
\nasserted in accordance with the warranties and guarantees referred to in Section
\n ——-
\n3.23 of the Disclosure Schedule.
\n—- <\/p>\n
“Prospectus” has the meaning set forth in Section 5.20(b).
\n ———- ————— <\/p>\n
“Purchase Price” has the meaning set forth in Section 2.5(a).
\n ————– ————– <\/p>\n
“Purchased Assets” has the meaning set forth in Section 2.1(a).
\n —————- ————– <\/p>\n
“Raytheon Agreements” means the Agreement and Plan of Merger dated as of
\n ——————-
\nJuly 11, 1997 by and between Raytheon Company, Raytheon Appliances, Inc.,
\nGoodman Manufacturing Company, L.P. and RAI Merger Limited Partnership, the
\nCross License Agreement dated as of September 10, 1997 between Raytheon
\nCommercial Laundry LLC and Former Owner, the Trademark License Agreement dated
\nas of September 10, 1997 between Raytheon Commercial Laundry LLC and Former
\nOwner and all other agreements and instruments delivered pursuant thereto, in
\neach case as modified by the Settlement Agreement dated as of December 15, 1999
\namong Goodman Manufacturing Company, L.P., Goodman Holding Company, Former Owner
\nand Raytheon Company and the Settlement Agreement dated as of December 15, 1999
\namong Goodman Manufacturing Company, L.P., Goodman Holding Company, Former Owner
\nand Alliance Laundry Holdings LLC, Alliance Laundry Systems LLC and Bain
\nCapital, Inc.<\/p>\n
“RCRA” has the meaning set forth in the definition of “Environmental Law.”
\n —- <\/p>\n
“Real Property” means the parcels of real property owned by Seller and used
\n ————-
\nor held for use primarily in connection with the Business, including those more
\nparticularly described in Section 3.4(a) of the Disclosure Schedule, together
\n ————–
\nwith: (a) the Fixtures and Improvements located thereon; (b) all easements,
\nrights and privileges appurtenant thereto; (c) any land in the bed of any street
\nor road in front of or adjoining such real property; and (d) any reversionary
\nrights attributable thereto.<\/p>\n
-10-<\/p>\n
“Receivables” means all of the accounts receivable, notes receivable and
\n ———–
\nadvance payments generated or incurred primarily by or in connection with the
\nBusiness (including allowances for deductions from remittances, airline travel
\nadvances, employee advances, rebates receivable, deposits on bids, other
\nreceivables and claims receivables, but excluding receivables from Affiliates of
\nSeller or Global).<\/p>\n
“Registration Statement” has the meaning set forth in Section 5.20(a).
\n ———————- ————— <\/p>\n
“Release” means any actual or threatened spilling, leaking, pumping,
\n ——-
\npouring, emitting, emptying, discharging, injecting, escaping, leaching,
\ndumping, disposing, abandoning or migrating into the environment.<\/p>\n
“Salaried\/Non-Bargaining Unit Employees” has the meaning set forth in
\n ————————————–
\nSection 5.13(a)(i).
\n—————— <\/p>\n
“SEC” means the Securities and Exchange Commission.
\n — <\/p>\n
“Securities Act” means the Securities Act of 1933, as amended.
\n ————– <\/p>\n
“Seller” has the meaning set forth in the introductory paragraph of this
\n ——
\nAgreement.<\/p>\n
“Seller Group” means Seller and Global who shall be jointly and severally
\n ————
\nliable for any obligation undertaken by the Seller Group.<\/p>\n
“Seller Indemnified Parties” has the meaning set forth in Section 7.2(b).
\n ————————– ————– <\/p>\n
“Seller Welfare Plans” has the meaning set forth in Section 5.13(b)(iii).
\n ——————– ——————– <\/p>\n
“Seller’s Account” has the meaning set forth in Section 2.5(b)(i)(B).
\n —————- ——————– <\/p>\n
“Seller’s Actuary” has the meaning set forth in Section 5.13(c)(ii)(B).
\n —————- ———————- <\/p>\n
“Seller’s Benefit Plans” has the meaning set forth in Section 3.11(b).
\n ———————- ————— <\/p>\n
“Seller’s Compensation Commitments” has the meaning specified in Section
\n ——————————— ——-
\n3.11(a)(i).
\n———- <\/p>\n
“Seller’s ERISA Plans” has the meaning specified in Section 3.11(b).
\n ——————– ————— <\/p>\n
“Seller’s FSA” has the meaning set forth in Section 5.13(e).
\n ———— ————— <\/p>\n
“Seller’s Non-ERISA Plans” has the meaning specified in Section 3.11(b).
\n ———————— ————— <\/p>\n
“Shareholder” means Seller, for so long as it holds Maytag Shares, and any
\n ———–
\nPermitted Transferees, if any.<\/p>\n
“Statement of Change in Adjusted Working Capital” has the meaning set forth
\n ———————————————–
\nin Section 2.6(a).
\n ————– <\/p>\n
“Subsidiaries” means AFSI and AMANA Finance.
\n ———— <\/p>\n
-11-<\/p>\n
“Surveys” means, for each parcel of Real Property, a minimum ALTA\/ACSM plat
\n ——-
\nof survey dated no earlier than March 1, 2001 and certified to Buyer and the
\nTitle Company which shall be sufficient to enable the Title Company to delete
\nthe standard survey exceptions (if such deletion is available in the relevant
\nstate) from the Title Policies and otherwise to provide the title endorsements
\nand coverages contemplated by this Agreement and available in the relevant state
\nand otherwise reasonably satisfactory to Buyer.<\/p>\n
“Taxes” means any income, alternative or add on minimum, gross receipts,
\n —–
\nsales, use, ad valorem, value-added, employment, franchise, profits, property,
\nexcise, occupation, capital, environmental (including taxes under Code Section
\n59A), severance, production, property, transfer, workers’ compensation, social
\nsecurity, stamp, withholding or similar taxes and any other tax or other
\ngovernmental fee, duty, assessment or charge of any kind whatsoever imposed by
\nany country or political subdivision thereof (whether payable directly or by
\nwithholding), together with all interest and all penalties, additions to tax or
\nadditional amounts imposed with respect thereto.<\/p>\n
“Third Party Claim” has the meaning set forth in Section 7.2(c).
\n —————– ————– <\/p>\n
“Title Commitments” means, for each parcel of Real Property, a commitment
\n —————–
\nto issue to Buyer a current 1992 ALTA Owner’s Policy of Title Insurance (or
\nother similar form of policy if the Title Company is unable to issue the ALTA
\n1992 form) issued by the Title Company, covering such Real Property, showing
\ntitle vested in Seller and showing Buyer as the proposed insured. Each Title
\nCommitment shall be in an amount reasonably determined by Buyer and shall
\ncontain the following additional coverages and endorsements to the extent such
\ncoverages and endorsements are available in the relevant state: (i) extended
\ncoverage over the general exceptions (including affirmative coverage over any
\nmechanics’ lien exceptions), (ii) waiver of the creditors’ rights exception,
\n(iii) a contiguity endorsement, if applicable, (iv) endorsement insuring
\ncompliance with any covenants, conditions and restrictions affecting the Real
\nProperty, (v) a survey accuracy endorsement, (vi) legal description equivalency
\nendorsement, (vii) zoning 3.1 endorsement, with parking and loading docks (or,
\nif zoning endorsements are not generally available in any applicable
\njurisdiction, an opinion of counsel reasonably acceptable to Buyer stating that
\nthe Real Property in question complies with all applicable zoning, parking and
\nloading dock requirements), (viii) a tax parcel endorsement (insuring that the
\ntax parcel(s) affecting the Real Property do\/does not affect any property which
\nis not included in such Real Property), and (ix) a plat act and subdivision
\nendorsement (insuring that the Real Property in question has been legally
\nsubdivided).<\/p>\n
“Title Company” means (i) for the parcels of Real Property located in Iowa,
\n ————-
\nAllegiance Title Company and (ii) for all other parcels of Real Property, First
\nAmerican Title Insurance Company.<\/p>\n
“Title Objection Notice” has the meaning set forth in Section 5.17.
\n ———————- ———— <\/p>\n
“Title Policies” means the ALTA 1992 title insurance policies (or other
\n ————–
\nsimilar form of policy if the Title Company is unable to issue the ALTA 1992
\nform) issued by the Title Company at the Closing in favor of the Buyer, in the
\nform of the Title Commitments and <\/p>\n
-12-<\/p>\n
including all coverages and endorsements specified in the definition of Title
\nCommitment to the extent such coverages and endorsements are available in the
\nrelevant state.<\/p>\n
“Trademark License Agreement” means the Trademark License Agreement between
\n —————————
\nMaytag Worldwide and Global substantially in the form of Exhibit A.
\n ———<\/p>\n
“Trademarks” has the meaning set forth in the definition of “Intellectual
\n ———-
\nProperty.”<\/p>\n
“Transferred Room A\/C Business” has the meaning set forth in the first
\n —————————–
\nrecital to this Agreement.<\/p>\n
“Transferring Bargaining Unit Employees” has the meaning set forth in
\n ————————————–
\nSection 5.13(a)(i).
\n—————— <\/p>\n
“Transferring Employees” has the meaning set forth in Section 5.13(a)(i).
\n ———————- —————— <\/p>\n
“Uncollected Receivables Amount” has the meaning set forth in Section
\n —————————— ——-
\n5.19(c).
\n——- <\/p>\n
“Undisclosed Claim of Environmental Liability” means any Claim of
\n ——————————————–
\nEnvironmental Liability that was not specifically set forth in the Disclosure
\nSchedule in response to Section 3.3.
\n ———– <\/p>\n
“valid title\/survey objections” has the meaning set forth in Section 5.17.
\n —————————– ———— <\/p>\n
“Validation Date” has the meaning set forth in Section 5.13(c)(iii)(B).
\n ————— ———————– <\/p>\n
“Viking Agreements” means the Asset Purchase Agreement dated as of February
\n —————–
\n16, 2000 by and between Former Owner and Viking Range Corporation, and all other
\nagreements and instruments delivered pursuant thereto.<\/p>\n
“Violation” has the meaning set forth in Exhibit B.
\n ——— ——— <\/p>\n
“WARN” means the Worker Adjustment and Retraining Notification Act (Pub. L.
\n —-
\n100-379, 102 Stat. 890 (1988)).<\/p>\n
“Worker’s Compensation Claims” means any and all claims under worker’s
\n —————————-
\ncompensation laws in respect of or arising in connection with occurrences
\ninvolving employees of Seller engaged in the Business prior to the Closing Date.<\/p>\n
ARTICLE II
\n PURCHASE AND SALE OF ASSETS
\n —————————<\/p>\n
Section 2.1 Purchase and Sale.
\n —————–<\/p>\n
(a) On the terms and subject to the satisfaction or waiver of the
\nconditions set forth herein, at the Closing, Seller will sell and convey to
\nBuyer and Maytag Worldwide, and Buyer and Maytag Worldwide will purchase and
\nacquire from Seller, free and clear of all Encumbrances (except for Permitted
\nExceptions and Permitted Encumbrances), all of the assets and properties of
\nSeller of every kind and description, wherever located, real, personal or mixed,
\ntangible or intangible, related to the Business as the same exist on the Closing
\nDate, other than<\/p>\n
-13-<\/p>\n
the Excluded Assets identified in Section 2.2 (collectively, the “Purchased
\n ———– ———
\nAssets”), including all right, title and interest of Seller in, to and under:
\n——<\/p>\n
(i) all of the assets reflected on the December 31 Pro Forma
\n Balance Sheet except those disposed of or converted into cash after
\n December 31, 2000 in the ordinary course of business;<\/p>\n
(ii) the Real Property;<\/p>\n
(iii) the Equipment;<\/p>\n
(iv) the Inventory;<\/p>\n
(v) all other tangible assets used in connection with the
\n Business, including office furniture, office equipment and office supplies;<\/p>\n
(vi) all Intellectual Property relating to the Business and the
\n goodwill associated therewith, including those intellectual property rights
\n listed in Section 3.7(a) of the Disclosure Schedule and the name “Amana”
\n ————–
\n and any derivations thereof and associated logos, subject to the Trademark
\n License Agreement;<\/p>\n
(vii) the Receivables;<\/p>\n
(viii) the Other Current Assets;<\/p>\n
(ix) all of the books, records, manuals, documents, books of
\n account, correspondence, sales and credit reports, supplier lists, customer
\n lists, distributor lists, bid and quote information, literature, catalogs,
\n brochures, advertising material and the like which are used primarily in
\n the Business, except for employee records of persons who do not become
\n employees of Buyer at the Closing (including personnel files, employee
\n medical files, and workers’ compensation files), and affirmative action
\n plans of Seller;<\/p>\n
(x) the Leases and Leased Property;<\/p>\n
(xi) the Contracts;<\/p>\n
(xii) all computer equipment and all computer programs and
\n documentation used primarily in the Business;<\/p>\n
(xiii) all Permits, other than those that cannot be lawfully
\n transferred;<\/p>\n
(xiv) all emission offset credits, if any, arising from or
\n attributable to the operation of the Business;<\/p>\n
(xv) all the outstanding capital stock of AFSI;<\/p>\n
(xvi) all goodwill associated with the Business;<\/p>\n
-14-<\/p>\n
(xvii) all rights of Seller, Former Owner or any of their Affiliates
\n under the Raytheon Agreements, to the extent directly related to the
\n Business;<\/p>\n
(xviii) except as specified in Section 2.2, all other assets,
\n ———–
\n tangible or intangible, owned by Seller and relating to the Business,
\n including all past, present and future claims, choses in action and rights
\n of action by Seller against third parties relating to the Business or any
\n of the Purchased Assets arising from events, acts, omissions or
\n circumstances on or prior to the Closing Date.<\/p>\n
(b) At the Closing, the Purchased Assets shall be allocated between Buyer
\nand Maytag Worldwide as follows:<\/p>\n
(i) to Maytag Worldwide, all Trademarks relating to the Business
\n and containing or consisting of the term “Amana,” including the name
\n “Amana,” as well as any derivations thereof and associated logos, and all
\n goodwill associated therewith, subject to the Trademark License Agreement;
\n and<\/p>\n
(ii) to Buyer, all other Purchased Assets.<\/p>\n
Section 2.2 Excluded Assets.
\n —————<\/p>\n
The assets listed below shall be retained by Seller or Former Owner, as the
\ncase may be, and shall not be transferred to or purchased by Buyer (except for
\nthe assets set forth in Section 2.2(c) which shall be transferred to, but not
\n ————–
\npurchased by, Buyer) (the “Excluded Assets”):
\n ————— <\/p>\n
(a) any cash, bank deposits and cash equivalents;<\/p>\n
(b) any asset relating primarily to Former Owner’s HVAC Business;<\/p>\n
(c) (i) all finished goods located at any Real Property or Leased Property
\nthat are being held, stored or retained for a customer who previously purchased
\nsuch goods and (ii) all supplies and raw materials owned by third parties and
\nstored at any Real Property or Leased Property, none of which are reflected on
\nthe December 31 Pro Forma Balance Sheet and none of which shall be included in
\nthe determination of Change in Adjusted Working Capital;<\/p>\n
(d) all computer equipment, computer programs and documentation located at
\nGlobal’s Houston, Texas headquarters and Former Owner’s Fayetteville, Tennessee
\nplant;<\/p>\n
(e) all intangible assets relating to or arising under the Credit
\nAgreement and all past, present or future claims, choses in action and rights or
\nactions by Seller against third parties relating to (i) any Excluded Asset, (ii)
\nthe Business or any of the Purchased Assets arising from events, acts, omissions
\nor circumstances after the Closing Date to the extent such claim or action
\nrelates to or arose out of any matter for which Seller remains liable, including
\nany Excluded Liability, and (iii) any matter for which Seller Group is obligated
\nto indemnify Buyer Indemnified Parties pursuant to the terms of this Agreement;<\/p>\n
(f) Permits, to the extent not lawfully transferable;<\/p>\n
-15-<\/p>\n
(g) all of the books, records, tax returns, manuals, documents, books of
\naccount, correspondence, sales and credit reports, supplier lists, customer
\nlists, distributor lists, bid and quote information, literature, catalogs,
\nbrochures, advertising material and the like which (i) relate primarily to the
\nbusinesses of the Former Owner other than the Business, including those located
\nin the Fixtures and Improvements after the Closing, and (ii) constitute the
\nemployee records of persons who do not become employees of Buyer at the Closing
\n(including personnel files, employee medical files and workers’ compensation
\nfiles);<\/p>\n
(h) any rights of reimbursement or otherwise of Seller in respect of
\nexpenditures made by Seller in connection with Environmental Matters;<\/p>\n
(i) all refunds of Taxes for which Seller Group is liable pursuant to
\nSection 5.15;
\n———— <\/p>\n
(j) all rights and obligations arising under contracts, leases or
\nagreements constituting Excluded Liabilities;<\/p>\n
(k) all rights of Seller, Former Owner or any of their Affiliates under
\nthe Raytheon Agreements, to the extent not directly related to the Business; and<\/p>\n
(l) all rights of Seller pursuant to this Agreement and the instruments
\ndelivered hereunder.<\/p>\n
Section 2.3 Assumed Liabilities.
\n ——————-<\/p>\n
As partial consideration for consummation of the transactions contemplated
\nhereby, at the Closing, Buyer shall assume and agree to thereafter perform when
\ndue and discharge, the following debts, obligations and liabilities of Seller
\nrelating to the Business or the Purchased Assets (the “Assumed Liabilities”) and
\n ——————-
\nno other liabilities or obligations of Seller:<\/p>\n
(a) those liabilities, obligations, costs and expenses which arise out of
\nthe performance of the Contracts, Leases and Permits on or after the Closing
\nDate to the extent that such Contracts, Leases and Permits are assigned to Buyer
\nhereunder in compliance with any required consents of other parties or consents
\nor approvals of governmental authorities, except (A) in each case, to the extent
\nsuch liabilities and obligations, but for a breach or default by Seller would
\nhave been paid, performed or otherwise discharged on or prior to the Closing
\nDate or to the extent the same arise out of any such breach or default and (B)
\nin each case, to the extent such liabilities and obligations would be required
\nto be reflected on a balance sheet as of Closing Date with respect to the
\nPurchased Assets prepared in accordance with GAAP and were not so reflected in
\nthe Closing Date Pro Forma Balance Sheet and not taken into account as a
\ndeduction in determining the Change in Adjusted Working Capital in connection
\nwith the determination of the Purchase Price pursuant to Section 2.6;
\n ————<\/p>\n
(b) all liabilities in respect of Taxes for which Buyer is liable pursuant
\nto Section 5.15;
\n ———— <\/p>\n
(c) the Accounts Payable and all other liabilities of Seller included as
\ndollar amounts in the Closing Date Pro Forma Balance Sheet (including any
\nuncleared checks included in the dollar amount of accounts payable reflected in
\nthe Closing Date Pro Forma Balance Sheet);<\/p>\n
-16-<\/p>\n
(d) all liabilities or obligations explicitly undertaken or assumed by
\nBuyer pursuant to the other provisions of this Agreement;<\/p>\n
(e) all Disclosed Claims of Environmental Liability;<\/p>\n
(f) the obligations of Seller incurred in the ordinary course of business
\nto hold, store or retain finished goods located at any facility of the Business
\nfor customers who have previously purchased such goods;<\/p>\n
(g) any liabilities in respect of the claims or proceedings listed or
\nreferred to in Section 3.5 of the Disclosure Schedule, other than the case
\n ———–
\nreferred to as “Campbell, Dale” on Annex B-2 to the Disclosure Schedule (it
\nbeing understood that Buyer is assuming only an obligation to cooperate and
\nassist with the Raytheon litigation listed on Annex B-1 thereto); and<\/p>\n
(h) any liabilities of Seller, Former Owner or any of their Affiliates
\nunder the Raytheon Agreements, but only to the extent directly related to the
\nBusiness.<\/p>\n
Section 2.4 Excluded Liabilities.
\n ——————–<\/p>\n
Seller shall retain all debts, obligations and liabilities (known, unknown,
\nfixed, contingent or otherwise) other than the Assumed Liabilities (the
\n“Excluded Liabilities”), and notwithstanding anything to the contrary in Section
\n ——————– ——-
\n2.3, none of the following shall be Assumed Liabilities for the purposes of this
\n—
\nAgreement:<\/p>\n
(a) all liabilities in respect of Taxes for which Seller Group is liable
\npursuant to Section 5.15;
\n ———— <\/p>\n
(b) those liabilities retained by Seller pursuant to Section 5.13;
\n ———— <\/p>\n
(c) obligations or expenses of Seller in connection with the transactions
\ncontemplated hereby, including legal and accounting fees and expenses and
\ninvestment banking fees due (except such fees and expenses as Seller is entitled
\nto receive from Buyer and that arise out of a breach of this Agreement,
\nenforcement of this Agreement, indemnification pursuant to this Agreement, and
\nsimilar matters);<\/p>\n
(d) all Environmental Matters relating to or arising from the ownership or
\noperation by Seller, Former Owner or any of their Affiliates of any tangible
\nExcluded Assets or any other tangible asset or property at any time owned or
\noperated by Seller, Former Owner or any of their Affiliates or predecessors,
\nother than the Purchased Assets;<\/p>\n
(e) all intercompany accounts and other liabilities or obligations to
\nHolding, Global or any of their respective Affiliates;<\/p>\n
(f) all amounts payable pursuant to the Promissory Note referred to in
\nSection 3.1 of the Bifurcation Agreement and all other liabilities and
\nobligations of Seller under the Bifurcation Agreement (other than those
\nspecifically included in the definition of Assumed Liabilities);<\/p>\n
-17-<\/p>\n
(g) all amounts payable by Seller to the Lenders or otherwise under the
\nCredit Agreement;<\/p>\n
(h) all amounts payable under or other liabilities or obligations relating
\nto the Amana Appliance Phantom Appreciation Rights Plan;<\/p>\n
(i) all liabilities or obligations undertaken by Seller pursuant to this
\nAgreement and the instruments delivered hereunder;<\/p>\n
(j) any liabilities or obligations in respect of any Excluded Assets;<\/p>\n
(k) accrued liabilities of any kind required to be reflected on the
\nClosing Date Pro Forma Balance Sheet which were not reflected thereon as a
\ndollar amount;<\/p>\n
(l) all liabilities or obligations of Seller, Former Owner or any of their
\nAffiliates under the Viking Agreements; and<\/p>\n
(m) all liabilities or obligations of Seller, Former Owner or any of their
\nAffiliates under the Raytheon Agreements that are not directly related to the
\nBusiness.<\/p>\n
Section 2.5 Purchase Price.
\n ————–<\/p>\n
(a) Subject to adjustment in accordance with Section 2.6, the aggregate
\n ———–
\npurchase price (the “Purchase Price”) payable in consideration for the Purchased
\n ————–
\nAssets (in addition to assuming the Assumed Liabilities) shall be (i) 500,000
\nshares of Maytag Common Stock (the “Maytag Shares”) and (ii) the excess of Three
\nHundred Twenty-Five Million ($325,000,000) over the Maytag Stock Valuation, as
\nincreased or decreased, as the case may be, by the Change in Adjusted Working
\nCapital. Payment of the Purchase Price shall be made as provided in Section
\n ——-
\n2.5(b) and Section 2.7.
\n—— ———– <\/p>\n
(b) Subject to fulfillment or waiver of the conditions set forth in
\nArticle VI,
\n———- <\/p>\n
(i) Buyer will deliver to Seller at Closing:<\/p>\n
(A) one or more certificates representing the Maytag Shares
\n registered in the name of Seller, and<\/p>\n
(B) immediately available funds by wire transfer to an account
\n designated by Seller in writing no less than three (3) business days prior
\n to the Closing Date (“Seller’s Account”), in the amount equal to the excess
\n —————-
\n of (x) Two Hundred Ninety Million Dollars ($290,000,000), as increased or
\n decreased, as the case may be, by Seller’s good faith estimate of the
\n Change in Adjusted Working Capital, which estimate shall be delivered to
\n Buyer not less than three (3) business days prior to the Closing Date and
\n shall be subject to approval by Buyer, which shall not be unreasonably
\n withheld (the “Estimated Change in Adjusted Working Capital”), over (y) the
\n ——————————————–
\n Maytag Stock Valuation; and<\/p>\n
-18-<\/p>\n
(ii) Maytag Worldwide will deliver to Seller at Closing immediately
\n available funds by wire transfer to Seller’s Account in the amount equal to
\n Thirty-Five Million Dollars ($35,000,000).<\/p>\n
SECTION 2.6 Determination of Change in Adjusted Working Capital.
\n —————————————————<\/p>\n
(a) As promptly as practicable after the Closing Date, and in any event no
\nlater than forty-five (45) days thereafter, Buyer shall prepare and deliver to
\nSeller an unaudited statement reflecting the determination of the Change in
\nAdjusted Working Capital (the “Statement of Change in Adjusted Working Capital”)
\n ———————————————–
\nto which statement shall be appended a copy of the Closing Date Pro Forma
\nBalance Sheet. Seller and its representatives shall have the right to
\nparticipate in the preparation of the Statement of Change in Adjusted Working
\nCapital, it being understood that Buyer shall be ultimately responsible for the
\npreparation thereof.<\/p>\n
(b) After delivery to Seller of the Statement of Change in Adjusted
\nWorking Capital, Seller and its representatives shall be afforded the
\nopportunity to review and inspect all of the financial records, work papers,
\nschedules and other supporting papers relating to the preparation of the
\nStatement of Change in Adjusted Working Capital and the Closing Date Pro Forma
\nBalance Sheet and to consult with Buyer, and its representatives, if necessary,
\nregarding the methods used in the preparation of those documents.<\/p>\n
(c) The Closing Data Pro Forma Balance Sheet and the Change in Adjusted
\nWorking Capital as shown on the Statement of Change in Adjusted Working Capital
\nprepared by Buyer, shall be final, conclusive and binding for purposes of this
\nAgreement, unless Seller shall give written notice of disagreement with any
\nvalues thereon or in the Closing Date Pro Forma Balance Sheet within thirty (30)
\ndays following its receipt of the Statement of Change in Adjusted Working
\nCapital, specifying in reasonable detail the nature and extent of such
\ndisagreement. Seller shall not be permitted to give a notice of disagreement
\nwith respect to the Statement of Change in Adjusted Working Capital prepared by
\nSeller unless the aggregate amount in dispute exceeds One Hundred Thousand
\nDollars ($100,000.00).<\/p>\n
(d) If Buyer so objects within such 30-day period, Buyer and Seller shall
\nuse their reasonable efforts to resolve by written agreement (the “Agreed
\n ——
\nAdjustments”) any differences as to the Closing Date Pro Forma Balance Sheet and
\n———–
\nthe Change in Adjusted Working Capital and, if Seller and Buyer so resolve all
\nsuch differences, the Closing Date Pro Forma Balance Sheet and the Change in
\nAdjusted Working Capital set forth in the Statement of Change in Adjusted
\nWorking Capital as adjusted by the Agreed Adjustments shall be final and binding
\nas the Closing Date Pro Forma Balance Sheet and the Change in Adjusted Working
\nCapital, respectively, for purposes of this Agreement.<\/p>\n
(e) If within thirty (30) days following receipt by Buyer of a notice of
\nthe type referred to in subsection (c) above, Seller and Buyer are unable to
\nresolve any disagreement with respect to the Statement of Change in Adjusted
\nWorking Capital and the Closing Date Pro Forma Balance Sheet so that the amount
\nthen disputed by Seller does not exceed One Hundred Thousand Dollars, the
\ndisagreement shall be submitted for resolution to the Neutral Accountants. The
\nNeutral Accountants shall act as an arbitrator to determine and resolve only
\nthose issues still in dispute based solely on the presentations by Buyer and
\nSeller. The Neutral Accountants’<\/p>\n
-19-<\/p>\n
resolution of such dispute: (i) shall be made within thirty (30) days of the
\nsubmission of the dispute, based solely on the presentations by Buyer and
\nSeller; (ii) shall be in accordance with this Agreement; (iii) shall be effected
\nin a manner which is consistent with GAAP, except as provided in the footnotes
\nto the December 31 Pro Forma Balance Sheet and in the definition of Change in
\nAdjusted Working Capital; (iv) shall be set forth in a written statement
\ndelivered to Seller and Buyer; and (v) shall be final, conclusive and binding on
\nSeller and Buyer.<\/p>\n
(f) The fees and expenses of the Neutral Accountants in connection with
\nany such determination shall be apportioned equally between Seller and Buyer.
\nBuyer and Seller shall each pay their other respective costs incurred in
\nconnection with this Section 2.6, including the fees and expenses of their
\n ———–
\nrespective attorneys and accountants, if any.<\/p>\n
(g) The Closing Date Pro Forma Balance Sheet and the Change in Adjusted
\nWorking Capital, as adjusted if applicable, shall not limit the representations,
\nwarranties, covenants and agreements of the parties set forth elsewhere in this
\nAgreement.<\/p>\n
Section 2.7 Payment of Adjusted Purchase Price.
\n ———————————-<\/p>\n
Promptly following the final determination of Change in Adjusted Working
\nCapital as provided in Section 2.6, but in no event later than ten (10) days
\n ———–
\nafter such determination, either:<\/p>\n
(a) Buyer shall wire transfer to Seller immediately available funds in the
\namount by which the Change in Adjusted Working Capital exceeds the Estimated
\nChange in Adjusted Working Capital; or<\/p>\n
(b) Seller shall wire transfer to Buyer immediately available funds in the
\namount by which the Estimated Change in Adjusted Working Capital exceeds the
\nChange in Adjusted Working Capital.<\/p>\n
Any payment required to be made pursuant to this Section 2.7 shall be made
\n ———–
\ntogether with interest thereon from the Closing Date to the date of payment at
\nthe rate of interest per annum equal to the prime rate in effect on the Closing
\nDate as reported in The Wall Street Journal. All wire transfers hereunder shall
\n ———————–
\nbe to such accounts in the United States as the recipient thereof may designate
\nin writing for that purpose.<\/p>\n
Section 2.8 Allocation of Purchase Price.
\n —————————-<\/p>\n
The parties agree that the Purchase Price shall be allocated among the
\nPurchased Assets and the covenant not to compete granted pursuant to Section
\n ——-
\n5.16 in accordance with a schedule (the “Allocation Schedule”), which shall be
\n—- ——————-
\nagreed upon by Seller and Buyer at least five (5) days prior to the Closing
\nDate. The Allocation Schedule shall be reasonable and shall be prepared in
\naccordance with Section 1060 of the Code and the Treasury Regulations
\npromulgated thereunder; provided, however, that the Allocation Schedule shall
\n ——– ——-
\nreflect an allocation of the assets acquired by Buyer and those acquired by
\nMaytag Worldwide consistent with Sections 2.1(b) and 2.5. Seller and Buyer
\n ————— —
\nagree to complete and timely file Internal Revenue Service Form 8594 in
\naccordance with the Allocation Schedule (as agreed upon by the Buyer and Seller
\npursuant to this Section 2.8) and to furnish each other with a copy of such form
\n ———–
\nprepared in draft form at least forty-five (45) days prior to the filing due
\ndate of such form. <\/p>\n
-20-<\/p>\n
Neither Seller nor Buyer shall file any return or take a position with any
\ntaxing authority that is inconsistent with the Allocation Schedule. Seller and
\nBuyer also agree to revise such Form 8594 after all adjustments, if any, have
\nbeen made to the Purchase Price in accordance with Section 2.6.
\n ———– <\/p>\n
Section 2.9 Certain Costs, Fees and Expenses.
\n ——————————–<\/p>\n
Seller shall pay the title examination fees for the Title Commitments, the
\ncosts of the Surveys relating to the Real Property and all costs and expenses
\nrelating to all necessary waivers, consents, releases and approvals relating to
\nthe Credit Agreement. Each of Seller and Buyer shall pay one-half of: (a) all
\nother premiums, costs, fees and expenses of the Title Policies and all
\nendorsements and reinsurance issued in connection therewith and all other costs
\nof the Title Company relating to the issuance of the foregoing and all costs and
\nexpenses of the Title Policies; (b) all costs and expenses relating to any
\nestoppel agreements from the lessors of the Leased Property required by Buyer,
\nincluding, to the extent so required, consents from such lessors to the granting
\nof liens against such Leases to Buyer’s lenders; (c) all costs and expenses
\nrelating to all necessary waivers, consents, releases and approvals from other
\nparties to Leases, guarantees and Contracts (other than the Credit Agreement)
\nand all necessary consents and approvals required for the transfer of any
\nIntellectual Property; and (d) any sales, use, transfer, stock, documentary and
\nreal property transfer Tax, fees or similar charges assessed against or incurred
\nby any party to this Agreement as a result of the transactions contemplated
\nhereby; provided, however, that (i) the parties to this Agreement shall fully
\n ——–
\ncooperate with each other to minimize the aggregate amounts that would otherwise
\nbe due under this Section 2.9 (including the filing of any bulk or occasional
\n ———–
\nsales notification or similar filings with the appropriate taxing authorities),
\nand (ii) this Section 2.9 shall not (but Section 5.15 shall) apply to any sales,
\n ———– ————
\nuse, transfer, stock, documentary and real property transfer Tax, fees or
\nsimilar charges assessed or assessable against or incurred as a result of the
\ntransactions contemplated by the Bifurcation Agreement.<\/p>\n
Section 2.10 Conveyances of Real Property.
\n —————————-<\/p>\n
Each deed and instrument of assignment relating to Real Property shall
\ncontain a covenant and warranty by Seller that the granted property is free from
\nall Encumbrances made by Seller, the Former Owner or any person or entity
\nclaiming by, through or under Seller or Former Owner, and that Seller does
\nwarrant and will defend the same to Buyer, its successors and assigns, against
\nthe lawful claims and demands of all persons claiming by, through or under
\nSeller, but against none other; the conveyance and the foregoing warranty being
\nsubject to the Permitted Exceptions.<\/p>\n
Section 2.11 Disclaimer of Warranties.
\n ————————<\/p>\n
EXCEPT WITH RESPECT TO THE WARRANTIES AND REPRESENTATIONS SPECIFICALLY SET
\nFORTH IN THIS AGREEMENT AND THE DEEDS CONVEYING, TRANSFERRING AND ASSIGNING THE
\nREAL PROPERTY, SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, WHETHER OF
\nMERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (INCLUDING THE
\nOPERATION OF THE BUSINESS), OR QUALITY AS TO THE PURCHASED ASSETS, OR<\/p>\n
-21-<\/p>\n
ANY PART THEREOF, OR AS TO THE CONDITION OR WORKMANSHIP THEREOF, OR THE ABSENCE
\nOF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT, IT BEING UNDERSTOOD THAT,
\nEXCEPT AS PROVIDED IN THIS AGREEMENT AND THE DEEDS CONVEYING, TRANSFERRING AND
\nASSIGNING THE REAL PROPERTY, THE PURCHASED ASSETS ARE TO BE CONVEYED HEREUNDER
\n“AS IS” ON THE CLOSING DATE AND IN THEIR CONDITION AS OF THE CLOSING DATE.<\/p>\n
Section 2.12 Receipts After Closing.
\n ———————-<\/p>\n
After the Closing, Seller or Former Owner may receive funds, proceeds,
\ncontributions, refunds, rebates, payments or receipts that are attributable to
\nthe Purchased Assets. Seller and Global agree to remit or cause to be remitted
\nany of the foregoing to Buyer promptly upon receipt. Buyer agrees to remit to
\nSeller promptly upon Buyer’s receipt, any funds, proceeds, contributions,
\nrebates, payments or receipts that are attributable to the Excluded Assets.
\nAfter the Closing, Seller may receive invoices, bills, statements and other
\nclaims for the costs attributable to the operation of the Business after the
\nClosing Date. Any of the foregoing received by Seller will be promptly forwarded
\nto Buyer, and Buyer agrees to pay on a timely basis all such invoices, bills,
\nstatements and other claims forwarded by Seller for amounts for which Buyer has
\nindemnified Seller under Section 7.2(b).
\n ————– <\/p>\n
ARTICLE III
\n REPRESENTATIONS AND WARRANTIES OF SELLER AND GLOBAL
\n —————————————————<\/p>\n
Seller and Global, recognizing that Buyer and Maytag Worldwide are relying
\non the contents of this Article III as a material inducement to their execution,
\n ———–
\ndelivery and performance of this Agreement, hereby jointly and severally
\nrepresent and warrant to and covenant and agree with Buyer and Maytag Worldwide
\nas follows:<\/p>\n
Section 3.1 Organization, Authority and Good Standing.
\n —————————————–<\/p>\n
(a) Formation and Authority of Seller. Seller has been duly formed and is
\n ———————————
\nvalidly existing and in good standing as a limited partnership under the Texas
\nRevised Limited Partnership Act, with the partnership power and authority
\nnecessary to own its property and to conduct the Business as currently conducted
\nand to consummate the transactions contemplated by this Agreement. This
\nAgreement has been duly authorized, executed and delivered by Holding, on behalf
\nof Seller, and constitutes the legal, valid and binding obligation of Seller,
\nenforceable against Seller in accordance with its terms, and each of the other
\nagreements, instruments and documents being or to be executed and delivered by
\nSeller under this Agreement or in connection herewith has been duly authorized
\nand upon execution and delivery by Holding, on behalf of Seller, will constitute
\na legal, valid and binding obligation of Seller enforceable against Seller in
\naccordance with its terms, in each case, subject to the effects of the
\nBankruptcy Exceptions. Holding is the sole general partner of Seller, and owns a
\n1.2668% general partnership interest in Seller, and the persons listed in
\nSection 3.1(a) of the Disclosure Schedule own an aggregate 98.7332% limited
\n————–
\npartnership interest in Seller.<\/p>\n
(b) Foreign Qualification of Seller. Seller is duly qualified to transact
\n ——————————-
\nbusiness as a foreign limited partnership and is in good standing in any of
\nthose jurisdictions in the United<\/p>\n
-22-<\/p>\n
States in which such qualification is necessary to conduct the Business (except
\nto the extent that the failure to so qualify or be in good standing would not
\nhave a Material Adverse Effect).<\/p>\n
(c) Incorporation and Good Standing of Holding. Holding has been duly
\n ——————————————
\nincorporated, is validly existing and in good standing under the laws of the
\nState of Texas, is duly qualified to do business and in good standing as a
\nforeign corporation in each jurisdiction in which its ownership of properties or
\nthe conduct of its business requires such qualification (except to the extent
\nthat the failure to be so qualified or be in good standing would not have a
\nMaterial Adverse Effect), and has the corporate power and authority necessary to
\nown or hold its properties and to conduct the businesses in which it is engaged
\nand to consummate the transactions contemplated by this Agreement on behalf of
\nSeller.<\/p>\n
(d) Incorporation, Authority, Good Standing and Affiliates of Global.
\n —————————————————————-
\nGlobal has been duly incorporated, is validly existing and in good standing
\nunder the laws of the State of Texas, is duly qualified to do business and in
\ngood standing as a foreign corporation in each jurisdiction in which its
\nownership of properties or the conduct of its business requires such
\nqualification (except to the extent that the failure to be so qualified or be in
\ngood standing would not have a material adverse effect on its ability to perform
\nits obligations hereunder), and has the corporate power and authority necessary
\nto own or hold its properties and to conduct the businesses in which it is
\nengaged and to consummate the transactions contemplated by this Agreement. This
\nAgreement has been duly authorized, executed and delivered by Global and
\nconstitutes the legal, valid and binding obligation of Global, enforceable
\nagainst Global in accordance with its terms, and each of the other agreements,
\ninstruments and documents being or to be executed and delivered by Global under
\nthis Agreement or in connection herewith has been duly authorized and upon
\nexecution and delivery by Global will constitute a legal, valid and binding
\nobligation of Global, enforceable against Global in accordance with its terms,
\nin each case subject to the effects of the Bankruptcy Exceptions. Except for its
\nAffiliates, Global does not, directly or indirectly own, of record or
\nbeneficially, any outstanding voting securities or other equity interests in, or
\notherwise control, any corporation, partnership, joint venture or other entity.<\/p>\n
(e) Incorporation, Good Standing and Ownership of AFSI. AFSI has been duly
\n ————————————————–
\nincorporated, is validly existing and in good standing under the laws of the
\nState of Delaware, is duly qualified to do business and in good standing as a
\nforeign corporation in all fifty states (except as set forth in Section 3.1(e)
\n ————–
\nof the Disclosure Schedule and except to the extent that the failure to be so
\nqualified or in good standing would not have a material adverse effect on the
\nassets, business, results of operations, profits, prospects or condition
\n(financial or otherwise) of AFSI and Amana Finance, taken as a whole), and has
\nthe corporate power and authority necessary to own or hold its properties and to
\nconduct the business in which it is engaged. The only business in which AFSI has
\never engaged is the ownership of, and its only asset is, a 50% general
\npartnership interest in Amana Finance. The outstanding capital stock of AFSI
\nconsists of 1,000 shares of common stock, $1.00 par value, all of which have
\nbeen validly issued and fully paid and are nonassessable and all of which are
\nbeneficially owned by Seller, free and clear of any Encumbrances other than
\nPermitted Encumbrances. There are no agreements, arrangements, options,
\nwarrants, calls, rights or commitments of any character relating to the
\nissuance, sale, purchase or redemption of any shares of capital stock in AFSI.
\nTrue and complete copies of the<\/p>\n
-23-<\/p>\n
certificate of incorporation of AFSI and all amendments thereto and of the By-
\nlaws of AFSI as amended to date have been made available to Buyer.<\/p>\n
(f) Organization, Good Standing and Ownership of Amana Finance. Amana
\n ———————————————————-
\nFinance has been duly formed as a general partnership pursuant to the Illinois
\nUniform Partnership Act, with the partnership power and authority necessary to
\nown or hold its property and to conduct its business as currently conducted.
\nAFSI owns a 50% general partnership interest in Amana Finance, free and clear of
\nany Encumbrances other than Permitted Encumbrances. There are no agreements,
\narrangements, options, warrants, calls, rights or commitments of any character
\nrelating to the issuance, sale, purchase or redemption of any partnership
\ninterests in Amana Finance. Except for the Amana Finance Partnership Documents
\nand except for the Contracts listed in Section 3.10(a) of the Disclosure
\n —————
\nSchedule, there are no agreements between Seller or either Subsidiary and
\nTransamerica Finance Commercial Corporation or its Affiliates. True and complete
\ncopies of the Amana Finance Partnership Documents as amended to date have been
\nmade available to Buyer. Neither Seller nor AFSI has any obligation to make any
\nfurther capital contributions to Amana Finance.<\/p>\n
(g) No Other Subsidiaries. Except for the Subsidiaries, Seller does not,
\n ———————
\ndirectly or indirectly (A) own, of record or beneficially, any outstanding
\nvoting securities or other equity interests in any corporation, partnership,
\njoint venture or other entity which is involved in or relates to the Business or
\n(B) control any corporation, partnership, joint venture or other entity which is
\ninvolved in or relates to the Business.<\/p>\n
Section 3.2 Absence of Conflicts and Consent Requirements.
\n ———————————————<\/p>\n
Except as set forth in Section 3.2 of the Disclosure Schedule, each of
\n ———–
\nSeller’s and Global’s execution and delivery of this Agreement, and the
\nperformance of their respective obligations hereunder, do not: (a) conflict with
\nor violate, the partnership formation documents of Seller, the charter documents
\nor bylaws of Global or AFSI or the Amana Finance Partnership Documents; (b)
\nviolate or, alone or with notice or the passage of time, result in the breach or
\nthe termination of, or otherwise give any contracting party the right to
\nterminate, declare a default or declare an acceleration under, the terms of any
\nmaterial agreement relating to the Business to which Seller or either Subsidiary
\nis a party or by which any of the Purchased Assets or the Subsidiaries’ assets
\nmay be bound or (c) violate any judgment, order, decree or any material law,
\nstatute, regulation or other judicial or governmental restriction to which
\nSeller, either Subsidiary or Global is subject. Except for compliance with the
\nHSR Act and as otherwise noted in Section 3.2 of the Disclosure Schedule, there
\n ———–
\nis no requirement applicable to Seller or Global to make any filing with, or to
\nobtain any Permit, authorization, consent or approval of, any governmental or
\nregulatory authority or any third party, as a condition to the lawful
\nperformance by Seller or Global of its obligations hereunder.<\/p>\n
Section 3.3 Environmental Matters.
\n ———————<\/p>\n
Except as set forth in Section 3.3 of the Disclosure Schedule:
\n ———– <\/p>\n
(a) the operations of the Business by Seller and Former Owner comply and
\nhave complied in all material respects with all applicable Environmental Laws;<\/p>\n
-24-<\/p>\n
(b) Seller has, in respect of the Business, obtained all environmental,
\nhealth and safety Permits necessary for its operation as currently conducted,
\nand all such Permits are in good standing and Seller is in material compliance
\nwith all terms and conditions of such permits;<\/p>\n
(c) none of Seller or Former Owner, with respect to the Business, nor any
\nof their present property or operations, or their past property or operations
\nwith respect to the Business, is subject to any on-going investigation by, order
\nfrom or agreement with any person or entity (including any prior owner or
\noperator of Seller’s property) respecting any Claim of Environmental Liability
\nexcept where any resulting liability would not, individually or in the aggregate
\nhave a Material Adverse Effect;<\/p>\n
(d) neither Seller nor Former Owner is, with respect to the Business,
\nsubject to any pending judicial or administrative proceeding, or to any order,
\njudgment, decree or settlement all liabilities and obligations under which have
\nnot been fully resolved, in each case alleging or addressing a material
\nviolation of or liability under any Environmental Law;<\/p>\n
(e) except where any resulting liability would not, individually or in the
\naggregate, give rise to a Material Adverse Effect, neither Seller nor Former
\nOwner has, with respect to the Business:<\/p>\n
(i) reported a Release of a hazardous substance pursuant to Section
\n 103(a) of the CERCLA or any state equivalent;<\/p>\n
(ii) filed a notice pursuant to Section 103(c) of CERCLA;<\/p>\n
(iii) filed any notice under any applicable Environmental Law
\n reporting a material violation of any applicable Environmental Law;<\/p>\n
(f) there is not now, nor to the best knowledge of Seller or Global has
\nthere ever been, on or in any of Seller’s properties:<\/p>\n
(i) any treatment, recycling, storage or disposal of any hazardous
\n waste, as that term is defined under 40 CFR Part 261 or any state
\n equivalent, that requires or required a Permit pursuant to Section 3005 of
\n RCRA; or<\/p>\n
(ii) any underground storage tank or surface impoundment or landfill
\n or waste pile;<\/p>\n
(g) except where any resulting liability would not, individually or in the
\naggregate, give rise to a Material Adverse Effect, there is not now on or in any
\nof Seller’s properties any polychlorinated biphenyls (PCB) used in pigments,
\nhydraulic oils, electrical transformers or other equipment;<\/p>\n
(h) neither Seller nor Former Owner has in respect of the Business
\nreceived any notice or claim to the effect that it is or may be liable in any
\nmaterial respect to any person or entity (including any governmental authority)
\nas a result of the Release or threatened Release of a Hazardous Substance;<\/p>\n
-25-<\/p>\n
(i) no Encumbrance has attached to any of Seller’s or Former Owner’s
\nproperty in favor of any governmental body for (i) any liability under any
\nEnvironmental Law, or (ii) damages arising from, or costs incurred by such
\ngovernmental body in response to, a Release or threatened Release of a Hazardous
\nSubstance into the environment;<\/p>\n
(j) any asbestos-containing material which is on or part of any of
\nSeller’s property is in good repair according to the current standards and
\npractices governing such material, and its presence or condition does not
\nviolate in any material respect any applicable Environmental Law; and<\/p>\n
(k) none of the products manufactured, distributed or sold by Seller or
\nFormer Owner in connection with the Business, now or in the past, contains
\nasbestos or asbestos-containing material.<\/p>\n
Section 3.4 Ownership of Assets.
\n ——————-<\/p>\n
(a) Real Property. Section 3.4(a) of the Disclosure Schedule sets forth a
\n ————- ————–
\ntrue and complete list and legal description of all the Real Property. Neither
\nSubsidiary owns or has ever owned any real property. Seller has good and
\nindefeasible title to the Real Property, free and clear of any Encumbrances,
\nexcept for Permitted Exceptions and Permitted Encumbrances. Seller does not hold
\nany option to acquire any real property and is not lessor of any of the Real
\nProperty.<\/p>\n
(b) Leases and Leased Property. Section 3.4(b) of the Disclosure Schedule
\n ————————– ————–
\nsets forth a true and complete list of all leases and subleases of real property
\nunder which Seller is lessee or sublessee of any real property owned by any
\nother person and which is used primarily in connection with the Business, and,
\nexcept as set forth in Section 3.4(b) of the Disclosure Schedule, Seller has not
\n ————–
\nencumbered the Leases or assigned the Leases to any other person. Except as set
\nforth in Section 3.4(b) of the Disclosure Schedule, all Leases are in full force
\n ————–
\nand effect and constitute the legal, valid and binding obligations of Seller
\nand, to the best knowledge of Seller and Global, the other respective parties
\nthereto. Except as set forth in Section 3.4(b) of the Disclosure Schedule, all
\n ————–
\nrent and other payments due under the Leases have been paid and there are no
\nexisting material defaults (or events or conditions which, with notice or lapse
\nof time or both, would constitute a material default) of Seller with respect to
\nthe Leases. To the best knowledge of Seller and Global, there are no existing
\nmaterial defaults of any of the other parties thereto (or events or conditions
\nwhich, with notice or lapse of time, or both, would constitute a material
\ndefault). Except as set forth in Section 3.4(b) of the Disclosure Schedule,
\n ————–
\nSeller has the right to quiet enjoyment of all the Leased Property for the full
\nterm of the related Lease (and any renewal option related thereto) relating
\nthereto, and the leasehold or other interest of Seller in the Leased Property is
\nnot subject or subordinate to any Encumbrance except for Permitted Encumbrances.
\nComplete and correct copies of all Leases, together with any title opinions,
\nsurveys and appraisals in Seller’s possession or any policies of title insurance
\ncurrently in force and in the possession of Seller with respect to each parcel
\nof Leased Property have heretofore been made available to Buyer by Seller.
\nNeither Subsidiary is lessee or sublessee of any real property owned by any
\nother person.<\/p>\n
-26-<\/p>\n
(c) Condemnation. Neither the whole nor any part of the Real Property or
\n ————
\nthe Leased Property is subject to any pending suit for condemnation or other
\ntaking by any governmental body, and, to the knowledge of Seller, no such
\ncondemnation or other taking is threatened or contemplated.<\/p>\n
(d) Personal Property. Seller has previously delivered to Buyer a
\n —————–
\nrepresentative list, dated as of April 30, 2001, of all Equipment and other
\ntangible personal property owned by Seller and used in or relating to the
\nBusiness. Except as set forth in Section 3.4(d) of the Disclosure Schedule,
\n ————–
\nSeller has good and indefeasible title to all Equipment and other items of
\ntangible personal property and all items of intangible property which are
\nincluded in the Purchased Assets, free and clear of any Encumbrances, except for
\nPermitted Encumbrances and minor Encumbrances that in the aggregate are not
\nsubstantial in amount and do not materially detract from the value of the assets
\nsubject thereto or materially interfere with the present use thereof.<\/p>\n
(e) Sufficiency of Purchased Assets. Except for the Excluded Assets
\n ——————————-
\nspecified in subsections (c) through (k) of Section 2.2, the Purchased Assets
\n ———–
\n(i) constitute all of the assets and properties reasonably necessary for the
\noperation of the Business after the Closing Date, consistent with the operations
\nof the Business as conducted as of December 31, 2000 and (ii) are in good
\ncondition (subject to normal wear and tear) and serviceable condition and are
\nsuitable for the uses for which they are intended.<\/p>\n
(f) Excluded Services. Section 3.4(f) of the Disclosure Schedule sets
\n —————– ————–
\nforth a description of all material services provided by Seller or any Affiliate
\nof Seller or Global with respect to the Business utilizing either (i) assets not
\nincluded in the Purchased Assets or (ii) employees other than Transferring
\nEmployees and the manner in which the costs of providing such services have been
\nallocated to the Business.<\/p>\n
Section 3.5 Litigation.
\n ———-<\/p>\n
Except as set forth in Section 3.5 of the Disclosure Schedule, there is no
\n ———–
\nclaim, action, proceeding or investigation pending or, to Seller’s or Global’s
\nknowledge, threatened, and there is no outstanding writ, order, decree,
\ninjunction, award or judgment (a) against, affecting or relating to the Business
\nor any of the Purchased Assets, (b) that calls into question the authority or
\nright of Seller or Global to enter into this Agreement and consummate the
\ntransactions contemplated hereby; or (c) which would otherwise prevent or delay
\nthe transactions contemplated by this Agreement.<\/p>\n
Section 3.6 Permits and Compliance With Law.
\n ——————————-<\/p>\n
Except as set forth in Section 3.6 of the Disclosure Schedule and as
\n ———–
\nprovided in Section 3.3 of the Disclosure Schedule with respect to environmental
\n ———–
\nmatters and in Section 3.11 of the Disclosure Schedule with respect to labor and
\n ————
\nemployment matters:<\/p>\n
(a) Seller holds all material Permits which are necessary to conduct the
\nBusiness as presently carried on by it;<\/p>\n
-27-<\/p>\n
(b) Seller is presently conducting and has conducted, and Former Owner
\nconducted, the Business so as to comply in all material respects with all
\nmaterial applicable statutes, ordinances, rules, regulations and orders of any
\ngovernmental authority; and<\/p>\n
(c) Each of Seller and Former Owner has fulfilled and performed in all
\nmaterial respects its obligations under each material Permit, and (i) no event
\nhas occurred or condition or state of facts exists which constitutes or, after
\nnotice or lapse of time or both, would constitute a material breach or default
\nunder any such material Permit or which permits or, after notice or lapse of
\ntime or both, would permit revocation or termination of any such material
\nPermit, or which might materially adversely affect the rights of Seller or
\neither Subsidiary under any such material Permit; (ii) no notice of
\ncancellation, of default or of any dispute concerning any material Permit, or of
\nany event, condition or state of facts described in the preceding clause, has
\nbeen received by, or is known to, Seller; and (iii) each material Permit is
\nvalid, subsisting and in full force and effect and may be assigned and
\ntransferred to Buyer in accordance with this Agreement.<\/p>\n
Section 3.7 Intellectual Property Rights.
\n —————————-<\/p>\n
(a) Section 3.7(a) of the Disclosure Schedule sets forth a true and
\n ————–
\ncorrect list of:<\/p>\n
(i) all Intellectual Property owned by, licensed to or used by
\n Seller or Former Owner in conduct of the Business (other than computer
\n software that is licensed to Seller or Former Owner and that is generally
\n available to consumers at retail and licensed pursuant to “shrink-wrap,”
\n “click-through” or other similar standard license agreement), including the
\n owner, owner of record if registered or registration has been applied for,
\n registration or application date, registration or application number, and
\n other information sufficient to identify and distinguish it;<\/p>\n
(ii) all contracts, licenses, assignments, royalty agreements,
\n settlements, judgments and decrees dealing with or affecting the
\n Intellectual Property relating to the Business and to which Seller or
\n Former Owner is a party or by which it is bound, including the parties,
\n effective date, term, statutes, subject and Intellectual Property to which
\n it relates; and<\/p>\n
(iii) pending or threatened litigation with respect to any of the
\n foregoing, including the Intellectual Property at issue, actual or
\n potential parties to the litigation, nature of the litigation and the claim
\n asserted, when litigation was first threatened or filed, and status.<\/p>\n
(b) To Seller’s knowledge and except as set forth in Section 3.7(b) of the
\n ————–
\nDisclosure Schedule, there are no pending claims or allegations, and no basis
\nfor any such claims or allegations, against Seller or either Subsidiary of
\ninfringement, misappropriation or misuse of any Intellectual Property of any
\nother person.<\/p>\n
(c) Except for the unregistered marks and trademarks referred to in
\nSection 3.7(a) of the Disclosure Schedule, Seller either owns all of the right,
\n————–
\ntitle, and interest in the Intellectual Property included in the Purchased
\nAssets or has the perpetual, royalty-free right to use it. To the extent that
\nSeller has the right to use such Intellectual Property, such right is freely<\/p>\n
-28-<\/p>\n
transferable to Buyer. Except as set forth in Section 3.7(c) of the Disclosure
\n ————–
\nSchedule, Seller is listed in the records of the appropriate United States,
\nstate or foreign registry as the sole current owner of record for each
\napplication or registration identified in Section 3.7(a) as being owned by
\n ————–
\nSeller.<\/p>\n
(d) Except as set forth in Section 3.7(d) of the Disclosure Schedule, (i)
\n ————–
\nthe Intellectual Property owned by Seller is in good standing and, to the
\nknowledge of Seller, is valid and enforceable; (ii) all registrations for
\ncopyrights, patent rights and trademarks identified in Section 3.7(a) of the
\n ————–
\nDisclosure Schedule are in full force and, to the knowledge of Seller, valid and
\nall applications to register any unregistered copyrights, patent rights or
\ntrademarks so identified are pending and in good standing, all without challenge
\nof any kind by any third party; and (iii) Seller has the sole and exclusive
\nright to bring actions for infringement, misappropriation or unauthorized use of
\nIntellectual Property owned by it, and, to the knowledge of Seller, there is no
\nbasis for any such action. Copies of all registrations or current applications
\nrelating to the Intellectual Property identified in Section 3.7(a) of the
\n ————–
\nDisclosure Schedule have been made available to Buyer.<\/p>\n
(e) Each of the employees, agents, contractors or consultants who have
\ncontributed to or participated in the discovery, creation or development of
\nIntellectual Property on behalf of Seller: (i) has assigned or is under a valid
\nobligation to assign all right, title, and interest thereto to Seller; (ii) is a
\nparty to a valid “work for hire” agreement under which Seller is deemed to be
\nthe author and original owner of the copyright to the Intellectual Property; or
\n(iii) has by operation of law vested in Seller all right, title, and interest in
\nthe Intellectual Property by virtue of his or her employment with Seller.<\/p>\n
(f) Seller has provided to Buyer true and complete copies of all documents
\nrelating to (i) Seller’s acquisition of and right to use the word “AMANA” as, or
\nas part of, a Trademark have been provided to Buyer, and (ii) any disputes
\nconcerning or objections to the use by Seller, the Former Owner or any
\npredecessor of the word “AMANA” as, or as part of, a Trademark.<\/p>\n
Section 3.8 Computer Hardware and Software.
\n ——————————<\/p>\n
Section 3.8 of the Disclosure Schedule sets forth a true and complete list
\n ———–
\nof all computer equipment, computer programs and documentation, and computer
\nservices which are material to the continued operation of the Business in a
\nmanner consistent with current operations and designates which equipment,
\nprograms, documentation and services are Excluded Assets.<\/p>\n
Section 3.9 Receivables; Inventories.
\n ————————<\/p>\n
(a) Except to the extent reserved for on the December 31 Pro Forma Balance
\nSheet and except as set forth in Section 3.9 of the Disclosure Schedule, all
\n ———–
\nReceivables reflected on the December 31 Pro Forma Balance Sheet arose from, and
\nthe Receivables to be reflected on the Closing Date Pro Forma Balance Sheet will
\nhave arisen from, the sale of inventory or services to persons not affiliated
\nwith Seller or Global and in the ordinary course of the Business and, except as
\nreserved against on the December 31 Pro Forma Balance Sheet or on the Closing
\nDate Pro Forma Balance Sheet determined on a basis consistent with the basis
\nused in determining reserves in the December 31 Pro Forma Balance Sheet, are or
\nwill be good and collectible and <\/p>\n
-29-<\/p>\n
constitute or will constitute, as the case may be, only valid, undisputed claims
\nof Seller not subject to valid claims of set-off or other defenses or
\ncounterclaims.<\/p>\n
(b) The inventories of the Business (including raw materials, supplies,
\nwork-in-process, finished goods and other materials) (i) are in good,
\nmerchantable and useable condition and (ii) are, in the case of finished goods,
\nof a quality and quantity saleable in the ordinary course of business and, in
\nthe case of all other inventories, of a quality and quantity useable in the
\nordinary course of business. The inventory obsolescence policies of Seller with
\nrespect to the Business are appropriate for the nature of the products sold and
\nthe marketing methods used by the Business, and the reserve for inventory
\nobsolescence contained in the December 31 Pro Forma Balance Sheet fairly
\nreflects the amount of obsolete inventory as of December 31, 2000. Section
\n ——-
\n3.9(b) of the Disclosure Schedule sets forth a list of places where material
\n——
\ninventories of the Business were located as of April 30, 2001.<\/p>\n
Section 3.10 Material Contracts.
\n ——————<\/p>\n
(a) Section 3.10(a) of the Disclosure Schedule lists or describes the
\n —————
\nfollowing agreements relating to the Business and the Purchased Assets
\n(including leases of personal property, purchase contracts and commitments but
\nexcluding purchase orders entered into in the ordinary course of business) to
\nwhich Seller is a party or by which it is bound, or by which the Business or any
\nof the Purchased Assets may be bound:<\/p>\n
(i) all contracts involving future obligations on the part of
\n Seller in an amount which are, individually or in the aggregate, reasonably
\n expected to exceed One Hundred Thousand Dollars ($100,000);<\/p>\n
(ii) all partnerships and joint ventures;<\/p>\n
(iii) all Leases;<\/p>\n
(iv) all notes, bonds, mortgages, security agreements, guarantees
\n and other agreements and instruments for or relating to any lending by
\n Seller of any amount (exclusive of advances to employees for expenses in
\n the ordinary course of business) or any borrowing (including assumed debt
\n but excluding Excluded Liabilities) by Seller, which is reasonably expected
\n to exceed One Hundred Thousand Dollars ($100,000) or more and which relates
\n to the Business;<\/p>\n
(v) all forms of Contracts used with dealers, together with a list
\n of any dealers who are not parties to such form Contracts;<\/p>\n
(vi) all distributor, manufacturers representative and sales agency
\n Contracts, together with a list of any distributors, manufacturers
\n representatives or sales agents of the Business who are not parties to
\n written Contracts;<\/p>\n
(vii) all material advertising representative or advertising or
\n public relations Contracts;<\/p>\n
-30-<\/p>\n
(viii) all guarantees by Seller or any Subsidiary of the obligations
\n of any of its customers, suppliers, officers, directors, employees,
\n Affiliates or others (including Global and its Affiliates);<\/p>\n
(ix) all Contracts which limit or restrict where Seller may conduct
\n the Business or the type or line of business in which Seller may engage;<\/p>\n
(x) all Contracts not made in the ordinary course; and<\/p>\n
(xi) all other contracts, agreements, commitments, understandings
\n or instrument which are material to the Business or the Purchased Assets.<\/p>\n
(b) Except as set forth in Section 3.10(b) of the Disclosure Schedule,
\n —————
\nAFSI is not a party to, or bound by, any contract of the type referred to in
\nSection 3.10(a).
\n————— <\/p>\n
(c) Except as set forth in Section 3.10(c) of the Disclosure Schedule: (i)
\n —————
\neach agreement referred to in subsection (a) or (b) above, Section 3.7(a) of the
\n ————–
\nDisclosure Schedule and Section 3.11 of the Disclosure Schedule (the “Business
\n ———— ——–
\nAgreements”) is valid, binding and enforceable in accordance with its terms,
\n———-
\nsubject to the Bankruptcy Exceptions; (ii) Seller (or the Former Owner) or AFSI,
\nas the case may be, has fulfilled and performed its obligations under each of
\nthe Business Agreements; (iii) to Seller’s and Global’s knowledge, no other
\nparty to any such agreement is in material breach or default of the terms of
\nsuch instrument; and (iv) there does not exist under any provision thereof, any
\nevent that, with the giving of notice or the passage of time or both, would
\nconstitute a breach or default thereunder. A true complete copy of each Business
\nAgreement has been made available to Buyer by Seller.<\/p>\n
Section 3.11 Labor and Employment Matters; ERISA.
\n ———————————–<\/p>\n
(a) Except as set forth in Section 3.11(a) of the Disclosure Schedule:
\n ————— <\/p>\n
(i) Except for the Collective Bargaining Agreements, Seller is not
\n a party to any (a) employee collective bargaining agreement, except for the
\n Collective Bargaining Agreements, or (b) agreement, commitment,
\n understanding, plan, policy or arrangement of any kind, whether written or
\n oral, with or for the benefit of any current or former officer, director,
\n employee or consultant (including each employment, compensation, deferred
\n compensation, severance, supplemental pension, life insurance, termination
\n or consulting agreement or arrangement and any agreements or arrangements
\n associated with a change in control), to which Seller, with respect to the
\n Business, is a party or by which it is bound or pursuant to which it may be
\n required to make any payment at any time, other than Seller’s Non-ERISA
\n Plans and other plans of the type described in Section 3.11(b) (“Seller’s
\n ————— ——–
\n Compensation Commitments”);
\n ———— ———–<\/p>\n
(ii) the Business is in substantial compliance with the Collective
\n Bargaining Agreements and with all applicable laws respecting employment
\n and employment practices, terms and conditions of employment, wages and
\n hours, occupational safety and health, and is not engaged in any material
\n unfair labor or material unfair employment practices;<\/p>\n
-31-<\/p>\n
(iii) there is no unfair labor practice charge or complaint against
\n or involving the Business pending or to, Seller’s or Global’s knowledge,
\n threatened in writing before the National Labor Relations Board or any
\n court;<\/p>\n
(iv) there is no labor strike, or other material dispute, slowdown
\n or stoppage pending against the Business;<\/p>\n
(v) no union certification or decertification petition has been
\n filed and, to Seller’s or Global’s knowledge, no union authorization card
\n campaign has been conducted relating to the Employees within the past
\n twenty-four months;<\/p>\n
(vi) no material grievance proceeding or arbitration proceeding
\n arising out of or under any Collective Bargaining Agreement is pending or,
\n to Seller’s or Global’s knowledge, threatened in writing against the
\n Business;<\/p>\n
(vii) there are no material charges, investigations, administrative
\n proceedings or formal complaints of discrimination (including
\n discrimination based upon sex, age, marital status, race, national origin,
\n sexual preference, handicap, disability or veteran status) involving the
\n Business pending or, to Seller’s or Global’s knowledge, threatened in
\n writing before the Equal Employment Opportunity Commission or any federal,
\n state or local agency or court;<\/p>\n
(viii) there are no charges, investigations, administrative
\n proceedings or formal complaints of overtime or minimum wage violations
\n involving the Business pending before the Department of Labor or any other
\n federal, state or local agency or court; and<\/p>\n
(ix) there are no material citations, investigations,
\n administrative proceedings or formal complaints of violations of local,
\n state or federal occupational safety and health laws pending before the
\n Occupational Safety and Health Administration or any federal, state or
\n local agency or court involving the Business.<\/p>\n
(b) Section 3.11(b) of the Disclosure Schedule sets forth a true and
\n —————
\ncorrect list of all bonus, savings or thrift, stock bonus, employee stock
\nownership, stock option, commission or incentive, rabbi trust, deferred
\ncompensation, retirement, hospitalization, medical, vision or dental
\nreimbursement, post-retirement medical, sickness, accident, scholarship, day
\ncare, prepaid legal services, severance pay, vacation or holiday pay,
\ndisability, death benefit, insurance and other welfare, retiree welfare or
\nsimilar plans, programs, funds, contracts or arrangements providing benefits to
\nwhich Seller, with respect to the Business, is a party or by which it is bound
\nor pursuant to which it may be required to make any payment at any time, other
\nthan plans described in the paragraph below (“Seller’s Non-ERISA Plans”).
\n ———————— <\/p>\n
Section 3.11(b) of the Disclosure Schedule also sets forth a list of
\n —————
\neach “employee pension benefit plan” (as such term is defined in Section 3(2) of
\nERISA) and each “employee welfare benefit plan” (as such term is defined in
\nSection 3(1) of ERISA) covering any employee or former employee (or their
\nrespective beneficiaries or dependents) of Seller or Former Owner with respect
\nto the Business (collectively, “Seller’s ERISA Plans”, and Seller’s Non-ERISA
\n ——————–
\nPlans and Seller’s ERISA Plans collectively referred to as “Seller’s Benefit
\n —————-
\nPlans”). Except as set forth
\n—– <\/p>\n
-32-<\/p>\n
in Section 3.11(b) of the Disclosure Schedule, neither Seller nor Former Owner
\n —————
\nhas ever maintained any such employee pension benefit plan with respect to the
\nBusiness.<\/p>\n
(c) Seller has made available to Buyer, with respect to each written
\nSeller’s Non-ERISA Plan and Seller’s Compensation Commitment, correct and
\ncomplete copies of such plans or commitment and all related insurance and
\nannuity policies and contracts and other documents with respect to each Seller’s
\nNon-ERISA Plan and Seller’s Compensation Commitment. Section 3.11(c) of the
\n —————
\nDisclosure Schedule contains a description of all oral Seller’s Non-ERISA Plans
\nand Seller’s Compensation Commitments.<\/p>\n
(d) Seller has made available to Buyer, with respect to each Seller’s
\nERISA Plan, correct and complete copies, where applicable, of (i) all plan
\ndocuments and amendments, trust agreements and insurance and annuity contracts
\nand policies, (ii) the most recent IRS determination letter, (iii) the Annual
\nReports (Form 5500 Series) and accompanying schedules and actuarial reports, as
\nfiled, for the most recently completed three plan years, (iv) the summary plan
\ndescription currently in use and any other summary plan description in use at
\nany time and (v) copies of correspondence from the IRS, the Department of Labor
\nor the Pension Benefit Guaranty Corporation regarding any plan audit or
\ninvestigation or any intent to conduct a plan audit.<\/p>\n
(e) Except as disclosed in Section 3.11(e) of the Disclosure Schedule,
\n —————
\neach Seller’s ERISA Plan which is intended to qualify under Section 401(a) of
\nthe Code has received a letter from the IRS that such plan is so qualified under
\nthe Code and no circumstance exists which might cause such plan to cease being
\nso qualified.<\/p>\n
(f) Except as set forth in Section 3.11(f) of the Disclosure Schedule,
\n —————
\neach Seller’s Benefit Plan complies and has been administered to comply, with
\nall applicable foreign, federal, state and local laws, statutes, regulations,
\nrules, codes or ordinances enacted, adopted, issued or promulgated by any
\nforeign, federal, state, local or other governmental authority or regulatory
\nbody or common law, and there has been no notice issued by any such governmental
\nauthority or regulatory body questioning or challenging such compliance, and
\nthere are no actions, suits or claims (other than routine claims for benefits)
\npending or, to Seller’s knowledge, threatened involving such plan or the assets
\nof any such plan.<\/p>\n
(g) Except as set forth in Section 3.11(g) of the Disclosure Schedule,
\n —————
\nneither Seller nor Former Owner, with respect to the Business, has any liability
\nof any kind whatsoever, whether direct, indirect, contingent or otherwise, on
\naccount of (i) any violation of the health care requirements of Part 6 of Title
\nI of ERISA or Section 4980B of the Code, (ii) under Section 502(i) of Section
\n502(l) of the ERISA or Section 4975 of the Code, (iii) under Section 302 of
\nERISA or Section 412 of the Code or (iv) under Title IV of ERISA.<\/p>\n
(h) Except as set forth in Section 3.11(h) of the Disclosure Schedule, to
\n —————
\nthe knowledge of Seller, (i) all contributions to each Seller’s ERISA Plan that
\nwere required to be made in accordance with Section 302 of ERISA or Section 412
\nof the Code have been timely made, (ii) no Seller’s ERISA Plan has applied for
\nor received a waiver of the minimum funding <\/p>\n
-33-<\/p>\n
standards imposed by Section 412 of the Code, (iii) no Seller’s ERISA Plan has
\nan “accumulated funding deficiency” within the meaning of Section 412(a) of the
\nCode, (iv) there has been no “reportable event” (as such term is defined in
\nSection 4043(b) of ERISA) for any Seller’s ERISA Plan, and (v) Seller has not
\nand is not required to provide security to any Seller’s ERISA Plan under Section
\n401(a)(29) of the Code due to a plan amendment that results in an increase in
\ncurrent liability.<\/p>\n
(i) Neither Seller nor, to the best knowledge of Seller, any other
\ndisqualified person” (within the meaning of Section 4975 of the Code) or “party
\nin interest” (within the meaning of Section 3(14) of ERISA) has taken any action
\nwith respect to any Seller’s ERISA Plan which could subject the plan (or its
\nrelated trust) or Seller or any officer, director or employee of any of the
\nforegoing to the penalty or tax under Section 502(i) or Section 502(l) of ERISA
\nor Section 4975 of the Code.<\/p>\n
(j) Except as set forth in Section 3.11(j) of the Disclosure Schedule, no
\n —————
\nSeller’s ERISA Plan subject to Title IV of ERISA has incurred any liability to
\nthe Pension Benefit Guaranty Corporation other than for the payment of premiums,
\nall of which have been paid when due.<\/p>\n
(k) Except as set forth in Section 3.11(k) of the Disclosure Schedule, all
\n —————
\ncontributions that were required to be paid as of the Closing with respect to
\neach Seller’s ERISA Plan have been timely paid, and all accruals with respect to
\nsuch plans, as of December 31, 2000, are reflected in the December 31 Pro Forma
\nBalance Sheet.<\/p>\n
(l) Except as contemplated by this Agreement, neither Seller nor Holding
\nhas obligations under any of Seller’s Non-ERISA Plan, Seller’s Compensation
\nCommitments or Seller’s ERISA Plans or made any commitment, whether formal or
\ninformal, to create any additional benefit plan or to amend or modify any
\nbenefit plan other than to comply with the requirements of applicable law or the
\nterms of applicable Collective Bargaining Agreements or to provide health or
\ndental benefits to or in respect of former employees of Seller or Former Owner
\nwith respect to the Business, except as specifically required by the
\ncontinuation requirements of Part 6 of Title I of ERISA.<\/p>\n
(m) Section 3.11(m) of the Disclosure Schedule sets forth a true and
\n —————
\ncomplete list of all loans and advances made by Seller to any employee of
\nSeller, except travel allowances, relocation advances, and bridge or swing loans
\nmade in connection with relocations, as made in the ordinary course of business.<\/p>\n
(n) Except as set forth in Section 3.11(n) of the Disclosure Schedule,
\n —————
\nneither Seller nor Former Owner has ever been required to contribute to any
\n“multiemployer plan” (as such term is defined in Section 3(37) of ERISA) with
\nrespect to the Business.<\/p>\n
(o) Except as set forth in Section 3.11(o) of the Disclosure Schedule,
\n —————
\nSeller and Former Owner have complied in respect of the Business with all
\napplicable common law and foreign, federal, state and local laws, statutes,
\nregulations, rules, codes or ordinances enacted, adopted, issued or promulgated
\nby any governmental body (including those pertaining to occupational safety and
\nhealth requirements) relating to prices, wages, hours, discrimination in<\/p>\n
-34-<\/p>\n
employment and collective bargaining and to the operation of the Business and
\nare not liable for any arrears of wages or any Taxes or penalties for failure to
\ncomply with any of the foregoing. Seller believes that its relations with the
\nemployees of the Seller with respect to the Business are satisfactory. Seller is
\nnot a party to, and the Business is not affected by or threatened with, any
\ndispute or controversy with a union or with respect to unionization or
\ncollective bargaining involving the employees of Seller. Neither Seller nor the
\nBusiness is adversely affected by any dispute or controversy with a union or
\nwith respect to unionization or collective bargaining involving any supplier or
\ncustomer of Seller. Section 3.11(o) of the Disclosure Schedule sets forth a
\n —————
\ndescription of any union organizing or election activities involving any non-
\nunion employees of Seller or Former Owner and, to the knowledge of Seller, those
\nsuch activities threatened as of the date hereof.<\/p>\n
(p) None of Global, Seller, their Affiliates and respective officers,
\ndirectors and agents has made any promise or representation to any employee or
\nemployees of Seller with respect to continuation of employment of any person or
\nthe continued operation of any facility of Seller.<\/p>\n
(q) Neither Subsidiary has or has ever had any employees.<\/p>\n
Section 3.12 Brokers, Finders, etc.
\n ———————-<\/p>\n
Except for the services of Goldman, Sachs & Co., none of Seller, Global and
\ntheir respective Affiliates has employed any broker, finder, consultant or other
\nintermediary in connection with the transactions contemplated by this Agreement
\nwho might be entitled to a fee or commission in connection with such
\ntransactions. Global hereby agrees to cause to be paid any payment, fee or
\ncommission that may be due to Goldman, Sachs & Co. in connection with the
\ntransactions contemplated hereby.<\/p>\n
Section 3.13 Taxes.
\n —–<\/p>\n
Except as set forth in Section 3.13 of the Disclosure Schedule, (i) Seller
\n ————
\nand Former Owner have, in respect of the Business and the Purchased Assets,
\nfiled all tax returns which are required to be filed and have paid all Taxes
\nwhich have become due pursuant to such tax returns or pursuant to any assessment
\nwhich has become payable; (ii) there is no action, suit, investigation, audit,
\nclaim or assessment pending or proposed or threatened with respect to Taxes of
\nthe Business or the Purchased Assets, and, to the best of Seller’s knowledge, no
\nbasis exists therefor; (iii) all monies required to be withheld by Seller or
\nFormer Owner (including from employees of the Business for income Taxes and
\nsocial security and other payroll Taxes) have been collected or withheld, and
\neither paid to the respective taxing authorities, set aside in accounts for such
\npurpose, or accrued, reserved against and entered upon the books of the
\nBusiness; (iv) none of the Purchased Assets is properly treated as owned by
\npersons other than Seller for income Tax purposes; (v) Seller and Former Owner
\nare, and always have been, treated as a partnerships for U.S. federal income tax
\npurposes; (vi) all Taxes (whether or not shown on any Tax Return) owed by AFSI
\nhave been timely paid; and (vii) other than the “affiliated group” (as defined
\nin Section 1504 of the Code) that included Raytheon Company, AFSI has never been
\na member of any affiliated group, or any other group of companies which filed
\ntax returns on a unitary, combined or consolidated basis for state, local,
\nforeign or other tax law purposes.<\/p>\n
-35-<\/p>\n
Section 3.14 No Preemptive Rights.
\n ——————–<\/p>\n
There are no preferential purchase rights or rights of first refusal in
\nthird parties with respect to the Purchased Assets or the Business, except for
\nrights relating to Inventory that have arisen in the ordinary course of
\nbusiness.<\/p>\n
Section 3.15 Transactions With Affiliates.
\n —————————-<\/p>\n
Section 3.15 of the Disclosure Schedule sets forth a list of all of the
\n ————
\nContracts and Leases (i) between Seller and Amana Finance and (ii) between
\nSeller or any Subsidiary, on the one hand, and Global or any of its Affiliates,
\non the other hand. All of such Contracts and Leases are on terms and conditions
\nwhich are usual and customary and which are no less favorable to Seller or its
\nSubsidiary than those available from third parties who are not Affiliates of
\nSeller or Global, except as set forth in Section 3.15 of the Disclosure
\n ————
\nSchedule.<\/p>\n
Section 3.16 Financial Statements and Information.
\n ————————————<\/p>\n
(a) Section 3.16(a) of the Disclosure Schedule contains:
\n ————— <\/p>\n
(i) the audited consolidated balance sheets of Seller as of
\n December 31, 1999 and 2000, and the consolidated statements of operations,
\n partners’ capital and cash flows for the three years ended December 31,
\n 2000, and the report of Ernst & Young LLP, independent auditors, thereon;<\/p>\n
(ii) the December 31 Pro Forma Balance Sheet;<\/p>\n
(iii) the unaudited consolidated balance sheet of Seller as of April
\n 30, 2001, and the consolidated statements of operations, partners’ capital
\n and cash flows for the three months then ended; and<\/p>\n
(iv) an unaudited pro forma balance sheet as of April 30, 2001,
\n prepared in accordance with GAAP, except as provided in the footnotes to
\n the December 31 Pro Forma Balance Sheet.<\/p>\n
(b) The audited and pro forma consolidated financial statements referred
\nto in Section 3.16(a) (taken together and including the related schedules and\/or
\n —————
\nnotes thereto, the “Financial Statements”) are true, complete and correct in all
\n ——————–
\nmaterial respects and fairly present (i) the actual and pro forma consolidated
\nfinancial position of Seller as of December 31, 1999 and 2000 and April 30,
\n2001, as the case may be, and (ii) the consolidated results of Seller’s
\noperations and the cash flows for the three years ended December 31, 2000 and
\nthe three months ended April 30, 2001, all in conformity with Generally Accepted
\nAccounting Principles applied on a consistent basis (except as otherwise stated
\ntherein or in the schedules and\/or notes thereto) throughout the periods
\ninvolved.<\/p>\n
(c) Section 3.16(c) of the Disclosure Schedule contains the unaudited
\n —————
\nbalance sheets of Amana Finance as of December 31, 2000 and April 30, 2001 (the
\n“Amana Finance 4\/30 Balance Sheet”). Such balance sheets are true, complete and
\n ——————————–
\ncorrect in all material respects and fairly present the financial position of
\nAmana Finance as of the dates indicated, all in conformity <\/p>\n
-36-<\/p>\n
with Generally Accepted Accounting Principles applied on a consistent basis
\nthroughout the period involved.<\/p>\n
Section 3.17 Absence of Changes.
\n ——————<\/p>\n
(a) Since December 31, 2000 there has not been any:<\/p>\n
(i) material adverse change in the Purchased Assets, the Business or
\n the operations, liabilities, profits, prospects or condition (financial or
\n otherwise) of Seller, with respect to the Business and, to the knowledge of
\n Seller, no fact or condition exists or is contemplated or threatened which
\n might reasonably be expected to cause such a change in the future;<\/p>\n
(ii) destruction, damage to, or loss adversely affecting any material
\n Purchased Asset or the Business (whether or not covered by insurance); or<\/p>\n
(iii) material adverse change in the operations, liabilities, profits,
\n prospects or condition (financial or otherwise) of either Subsidiary and,
\n to the knowledge of Seller, no fact or condition exists or is contemplated
\n or threatened which might reasonably be expected to cause such a change in
\n the future.<\/p>\n
(b) Except as set forth in Section 3.17 of the Disclosure Schedule, since
\n ————
\nDecember 31, 2000, Seller and the Former Owner have conducted the Business only
\nin the ordinary course and in conformity with past practice. Without limiting
\nthe generality of the foregoing, since December 31, 2000, except as set forth in
\nsuch Schedule, neither Seller nor the Former Owner has , in respect of the
\nBusiness:<\/p>\n
(i) sold, leased (as lessor), transferred or otherwise disposed of,
\n or mortgaged or pledged, or imposed or suffered to be imposed any
\n Encumbrance on, any of the assets reflected on the December 31 Pro Forma
\n Balance Sheet or any assets acquired by the Former Owner or Seller with
\n respect to the Business after December 31, 2000, except for inventory and
\n minor amounts of personal property sold or otherwise disposed of for fair
\n value in the ordinary course of the Business consistent with past practice
\n and except for Permitted Exceptions and Permitted Encumbrances;<\/p>\n
(ii) cancelled any debts owed to or claims held by Seller with
\n respect to the Business (including the settlement of any claims or
\n litigation) other than in the ordinary course of the Business consistent
\n with past practice;<\/p>\n
(iii) accelerated or delayed collection of notes or accounts
\n receivable generated by the Business in advance of or beyond their regular
\n due dates or the dates when the same would have been collected in the
\n ordinary course of the Business consistent with past practice;<\/p>\n
(iv) delayed or accelerated payment of any account payable or other
\n liability of the Business beyond or in advance of its due date or the date
\n when such liability would have been paid in the ordinary course of the
\n Business consistent with past practice;<\/p>\n
-37-<\/p>\n
(v) allowed the levels of raw materials, supplies, work-in-process
\n or other materials included in the inventory of the Business to vary in any
\n material respect from the levels customarily maintained in the Business;<\/p>\n
(vi) instituted any increase in any compensation payable to any
\n employee of Seller or Former Owner with respect to the Business or in any
\n profit-sharing, bonus, incentive, deferred compensation, insurance,
\n pension, retirement, medical, hospital, disability, welfare or other
\n benefits made available to employees of Seller or Former Owner with respect
\n to the Business;<\/p>\n
(vii) made any change in the accounting principles and practices used
\n by Seller from those applied in preparation of the December 31 Pro Forma
\n Balance Sheet;<\/p>\n
(viii) prepared or filed any Tax return inconsistent with past
\n practice or, on any such Tax return, taken any position, made any election,
\n or adopted any method that (x) is inconsistent with positions taken,
\n elections made or methods used in preparing or filing similar Tax returns
\n in prior periods, and (y) could reasonably be expected to have any impact
\n on Buyer’s tax liability, under applicable law or under this Agreement, for
\n any period after the Closing Date; <\/p>\n
(ix) entered into any other contract or transaction pertaining to
\n the Business other than in the ordinary course of business; or<\/p>\n
(x) agreed to do any of the things described in the preceding
\n clauses (i) through (ix) except as contemplated in this Agreement.<\/p>\n
Section 3.18 No Undisclosed Liabilities.
\n ————————–<\/p>\n
Except as set forth in Section 3.18 of the Disclosure Schedule, neither
\n ————
\nSeller nor AFSI is subject to any liability (including unasserted claims,
\nwhether known or unknown), whether absolute, contingent, accrued or otherwise,
\nwhich is not shown or which is in excess of amounts shown or reserved for in the
\nDecember 31 Pro Forma Balance Sheet, other than (i) in the case of Seller,
\nliabilities that are not included within the definition of Assumed Liabilities
\nand (ii) liabilities of the same nature as those set forth in the December 31
\nPro Forma Balance Sheet and the notes thereto and incurred in the ordinary
\ncourse of the Business after December 31, 2000 and properly accounted for (if
\napplicable) in the Closing Date Pro Forma Balance Sheet. Except as set forth in
\nSection 3.18 of the Disclosure Schedule, neither AFSI nor Amana Finance is
\n————
\nsubject to any liability (including unasserted claims, whether known or
\nunknown), whether absolute, contingent, accrued or otherwise, which is not shown
\nor which is in excess of amounts shown or reserved for in the Amana Finance 4\/30
\nBalance Sheet, other than liabilities of the same nature as those set forth in
\nthe Amana Finance 4\/30 Balance Sheet and the notes thereto and incurred in the
\nordinary course of the business of Amana Finance after April 30, 2001.<\/p>\n
Section 3.19 Utilities.
\n ———<\/p>\n
Except as set forth in Section 3.19 of the Disclosure Schedule, each site
\n ————
\ncomprising either the Real Property or the Leased Property has access to
\nsufficient quantities of water, sewer or septic, gas, steam, electric,
\ntelephone, drainage and other utilities required to conduct its business <\/p>\n
-38-<\/p>\n
as presently conducted. Seller has not received any written notice of any
\ntermination or material impairment of any such utilities.<\/p>\n
Section 3.20 Government Contracts.
\n ——————–<\/p>\n
A Contract entered into by Seller with any federal, state or local
\ngovernmental entity or authority is referred to herein as a “Government
\n ———-
\nContract.” Section 3.20 of the Disclosure Schedule sets forth a list of each
\n——– ————
\nGovernment Contract. Except as set forth in Section 3.20 of the Disclosure
\n ————
\nSchedule:<\/p>\n
(a) neither Seller nor, to Seller’s or Global’s knowledge, any of Seller’s
\nemployees or agents, has committed any violation of law or regulation which
\nwould reasonably be expected to make the Buyer subject to suspension, debarment
\nor ineligibility to perform any Government Contracts or, to Seller’s or Global’s
\nknowledge, is under investigation for any such matter;<\/p>\n
(b) neither Seller nor, to Seller’s or Global’s knowledge, any of its
\nemployees or agents, has ever been determined to be a non-responsible bidder or
\nofferor, or otherwise ineligible to perform in connection with any bid or
\nproposal on any Government Contract; and<\/p>\n
(c) neither Seller nor, to Seller’s or Global’s knowledge, any of its
\nemployees or agents has ever been suspended, debarred or otherwise determined to
\nbe ineligible for any agreement with any federal, state or local governmental
\nentity or authority.<\/p>\n
Section 3.21 Insurance.
\n ———<\/p>\n
Section 3.21 of the Disclosure Schedule sets forth a list and brief
\n ————
\ndescription (including nature of coverage, limits, deductibles, premiums and the
\nloss experience since September 1997 with respect to each type of coverage) of
\nall policies of insurance maintained, owned or held by or on behalf of Seller on
\nthe date hereof with respect to the Purchased Assets or the Business. Seller
\nhas complied with each of such insurance policies in all material respects and
\nhas not failed to give any material notice or present any material claim
\nthereunder in a due and timely manner. Seller has made available to Buyer
\ncorrect and complete copies of the most recent inspection reports, if any,
\nreceived from insurance underwriters as to the condition of the Purchased
\nAssets.<\/p>\n
Section 3.22 Customers and Suppliers.
\n ———————–<\/p>\n
Section 3.22 of the Disclosure Schedule sets forth (i) a list of names and
\n ————
\naddresses of the ten largest customers and the ten largest suppliers (measured
\nby dollar volume of purchases or sales in each case) of Seller or Former Owner
\nin respect of the Business and the percentage of the Business which each such
\ncustomer or supplier represents or represented during each of the years ended
\nDecember 31, 1999 and December 31, 2000 and the period January 1, 2001 through
\nMarch 31, 2001; and (ii) copies of the forms of purchase order for inventory and
\nother supplies and sales contracts for finished goods used by Seller or Former
\nOwner in respect of the Business. Except as set forth in Section 3.22 of the
\n ————
\nDisclosure Schedule, there exists no actual or threatened termination,
\ncancellation or limitation of, or any modification or change in, the business
\nrelationship of Seller with any customer or group of customers listed in Section
\n ——-
\n3.22 of the Disclosure Schedule, or whose purchases individually or in the
\n—-
\naggregate are material to the <\/p>\n
-39-<\/p>\n
operations of the Business, or with any supplier or group of suppliers listed in
\nSection 3.22 of the Disclosure Schedule, or whose sales individually or in the
\n————
\naggregate are material to the operations of the Business.<\/p>\n
Section 3.23 Warranties.
\n ———-<\/p>\n
Section 3.23 of the Disclosure Schedule sets forth (i) a specimen copy of
\n ————
\nthe form of written warranties covering products sold by Seller or Former Owner
\nwith respect to the Business which have not yet expired and (ii) a summary of
\nthe warranty expense incurred by Seller with respect to the Business during each
\nof its last three fiscal years.<\/p>\n
Section 3.24 Product Defects.
\n —————<\/p>\n
(a) Section 3.24 of the Disclosure Schedule sets forth a list of all (i)
\n ————
\nproducts of the Business which have been recalled, withdrawn or suspended by
\nSeller or Former Owner (whether voluntarily or otherwise), and (ii) proceedings
\nof any foreign, federal, state, local or other governmental authority or
\nregulatory body pending against either Seller or Former Owner (whether such
\nproceedings have since been completed or remain pending) seeking the recall,
\nwithdrawal, suspension or seizure of any of the products of the Business or
\nseeking to enjoin Seller or Former Owner from engaging in activities pertaining
\nto any products of the Business.<\/p>\n
(b) Except as set forth in Section 3.24 of the Disclosure Schedule, to the
\n ————
\nknowledge of Seller, there exists no set of facts which could reasonably be
\nexpected to cause Seller to recall, withdraw or suspend any of the products of
\nthe Business from the market or to cease further distribution or marketing of
\nsuch products.<\/p>\n
(c) Except as set forth in Section 3.24 of the Disclosure Schedule, to the
\n ————
\nknowledge of Seller, (i) the products of the Business previously sold by Seller
\nand Former Owner were, at the time of sale, free from defects or risk to the
\nsafety of the users thereof and conformed with all relevant descriptions,
\nspecifications and standards and (ii) the finished goods, work-in-process and
\nother Inventory are free from defects or risk to the safety of the users thereof
\nand conform with all relevant descriptions, specifications and standards.<\/p>\n
Section 3.25 Bifurcation.
\n ———–<\/p>\n
The transactions consummated pursuant to the Bifurcation Agreement or
\ncontemplated thereby (the “Bifurcation”) did not and will not (a) conflict with
\n ———–
\nor violate, Seller’s or Former Owner’s partnership formation documents, or
\nGlobal’s or Holding’s charter documents or bylaws; (b) violate or, alone or with
\nnotice or the passage of time, result in the breach or the termination of, or
\notherwise give any contracting party the right to terminate, declare a default
\nor declare an acceleration under, the terms of any written agreement relating to
\nthe Business to which Seller is a party or by which any of the Purchased Assets
\nmay be bound except as set forth in Section 3.25 of the Disclosure Schedules; or
\n ————
\n(c) violate any judgment, order, decree or, to the best knowledge of Seller and
\nGlobal, any material law, statute, regulation or other judicial or governmental
\nrestriction to which Seller or Global is subject. Except as set forth in
\nSection 3.25 of the Disclosure Schedule, Former Owner and Seller have obtained
\n————
\nall consents of third parties and governmental bodies necessary to effect the
\nBifurcation.<\/p>\n
-40-<\/p>\n
Section 3.26 Investment Representations.
\n ————————–<\/p>\n
(a) Seller is acquiring the Maytag Shares to be received by it pursuant to
\nthis Agreement for investment for its own account and not with a view to
\nparticipating directly or indirectly in any resale, distribution or underwriting
\nthereof in violation of the Securities Act, or applicable state securities laws,
\nand Seller will not offer or sell the Maytag Shares received pursuant to this
\nAgreement in violation of the Securities Act or applicable state securities
\nlaws. Seller understands that the Maytag Shares received pursuant to this
\nAgreement have not been registered under the Securities Act or under applicable
\nstate securities laws and may not be sold, transferred, assigned, pledged or
\notherwise transferred or disposed of unless there is an effective registration
\nstatement under the Securities Act covering such securities and the securities
\nhave been qualified or registered under applicable state securities laws or an
\nexemption from the registration requirements of the Securities Act and such laws
\nis available. Seller also understands that certificates representing such shares
\nshall bear an appropriate legend regarding the restrictions on transfer and
\nBuyer shall order any transfer agent it may appoint to stop the transfer thereof
\nabsent compliance with such restrictions.<\/p>\n
(b) Seller is an “accredited investor” as such term is defined in
\nRegulation D promulgated under the Securities Act. Seller (x) acknowledges that
\nBuyer has made available to Seller a copy of the Buyer SEC Filings and Buyer’s
\n2000 Annual Report to Stockholders, (y) understands that it has not been
\nfurnished with any exhibits to the Buyer SEC Filings and that it may, upon its
\nwritten request, receive from Buyer a copy of any such exhibit and (z)
\nacknowledges that it has been provided an opportunity to ask questions and
\nreceive answers from Buyer concerning the terms and conditions of the offering
\nof the Maytag Shares and to obtain any additional information which Buyer
\npossesses or can acquire without unreasonable effort or expense that is
\nnecessary to verify the accuracy of any information furnished with said
\noffering.<\/p>\n
ARTICLE IV
\n REPRESENTATIONS AND WARRANTIES OF BUYER
\n —————————————<\/p>\n
Buyer, recognizing that Seller and Global are relying on the contents of
\nthis Article IV as a material inducement to their execution, delivery and
\n ———-
\nperformance of this Agreement, hereby represents and warrants to and covenants
\nand agrees with Seller and Global as follows:<\/p>\n
Section 4.1 Organization and Authority.
\n ————————–<\/p>\n
Buyer is a corporation duly incorporated, validly existing and in good
\nstanding under the laws of the State of Delaware and has the full corporate
\npower and authority to conduct its business as now conducted and to own its
\nassets. Buyer has the corporate power to enter into and perform its obligations
\npursuant to this Agreement. Maytag Worldwide has been duly incorporated, is
\nvalidly existing and in good standing under the laws of the Netherlands
\nAntilles, with the corporate power and authority necessary to conduct its
\nbusiness as now conducted and to own its assets and to consummate the
\ntransactions contemplated by this Agreement. This Agreement has been duly
\nauthorized, executed and delivered by Buyer and constitutes the legal, valid and
\nbinding obligation of Buyer, enforceable against Buyer in accordance with its
\nterms, and each of the other agreements, instruments and documents being or to
\nbe executed and delivered by Buyer under this Agreement or in connection
\nherewith has been duly authorized and<\/p>\n
-41-<\/p>\n
upon execution and delivery by Buyer will constitute a legal, valid and binding
\nobligation of Buyer, enforceable against Buyer in accordance with its terms, in
\neach case, subject to the effects of the Bankruptcy Exceptions. This Agreement
\nhas been duly authorized, executed and delivered by Maytag Worldwide and
\nconstitutes the legal, valid and binding obligation of Maytag Worldwide,
\nenforceable against Maytag Worldwide, in accordance with its terms, and each of
\nthe other agreements, instruments and documents being or to be executed and
\ndelivered by Maytag Worldwide under this Agreement or in connection herewith has
\nbeen duly authorized and upon execution and delivery Maytag Worldwide will
\nconstitute a legal, valid and binding obligation of Maytag Worldwide,
\nenforceable against Maytag Worldwide in accordance with its terms, in each case,
\nsubject to the effects of the Bankruptcy Exceptions.<\/p>\n
Section 4.2 Absence of Conflicts and Consent Requirements.
\n ———————————————<\/p>\n
Each of Buyer’s and Maytag Worldwide’s execution and delivery of this
\nAgreement, and the performance of its respective obligations hereunder, do not:
\n(a) conflict with or violate Buyer’s or Maytag Worldwide’s charter documents or
\nbylaws; (b) violate or, alone or with notice or passage of time, result in the
\nmaterial breach or termination of, or otherwise give any contracting party the
\nright to terminate or declare a default or declare an acceleration under, the
\nterms of any material written agreement to which Buyer or Maytag Worldwide is a
\nparty or by which Buyer or Maytag Worldwide or their respective assets are
\nbound; or (c) violate any judgment, order, decree or, to the best knowledge of
\nBuyer or Maytag Worldwide, any material law, statute, regulation or other
\njudicial or governmental restriction to which Buyer or Maytag Worldwide is
\nsubject. Except for compliance with the HSR Act, there is no requirement
\napplicable to Buyer or Maytag Worldwide to make any filing with, or to obtain
\nany permit, authorization, consent or approval of, any governmental or
\nregulatory authority or any third party as a condition to the lawful performance
\nby Buyer or Maytag Worldwide of their respective obligations hereunder.<\/p>\n
Section 4.3 Litigation Affecting Buyer or Maytag Worldwide.
\n ———————————————-<\/p>\n
There is no claim, action, proceeding or investigation pending or, to the
\nbest knowledge of Buyer or Maytag Worldwide, threatened in writing, nor is there
\noutstanding any writ, order, decree or injunction that: (a) calls into question
\nBuyer’s or Maytag Worldwide’s authority or right to enter into this Agreement
\nand consummate the transactions contemplated hereby; or (b) would otherwise
\nprevent or delay the transactions contemplated by this Agreement.<\/p>\n
Section 4.4 Fees.
\n —-<\/p>\n
Except for the services of Salomon Smith Barney, Inc., neither Buyer nor
\nany of its Affiliates, nor any of their respective officers, directors or
\nemployees has employed any broker or finder or incurred any liability for any
\nbrokerage fees, commissions, or finder’s fees in connection with the
\ntransactions contemplated herein. Buyer is solely responsible for any payment,
\nfee or commission that may be due to Salomon Smith Barney, Inc. in connection
\nwith the transactions contemplated hereby.<\/p>\n
-42-<\/p>\n
Section 4.5 Available Funds.
\n —————<\/p>\n
Buyer and Maytag Worldwide have sufficient cash, or firm commitments from
\nresponsible lending institutions, available lines of credit or other sources of
\navailable funds to enable them to make payment of all amounts to be paid by them
\nhereunder.<\/p>\n
Section 4.6 Valid Shares.
\n ————<\/p>\n
The Maytag Shares, when delivered to Seller pursuant to this Agreement,
\nwill have been duly and validly authorized and issued, will be fully paid and
\nnonassessable, free and clear of all Encumbrances (other than restrictions under
\nthe Securities Act, the rules and regulations thereunder and state securities
\nlaws) and will not have been issued or sold in violation of the preemptive
\nrights of any person or applicable federal or state securities laws.<\/p>\n
Section 4.7 Securities and Exchange Commission Filings.
\n ——————————————<\/p>\n
Buyer has made available to Seller true and complete copies (excluding
\nexhibits) of its (i) Annual Report on Form 10-K for the fiscal year ended
\nDecember 31, 2000, as filed with the SEC, (ii) Quarterly Report on Form 10-Q for
\nthe quarter ended March 31, 2001, as filed with the SEC, (iii) Current Reports
\non Form 8-K, as filed with the SEC subsequent to December 31, 2000, (iv) proxy
\nstatements relating to all meetings of its stockholders (whether annual or
\nspecial) since December 31, 2000 (collectively, the “Buyer SEC Filings”). Buyer
\n —————–
\nhas filed with the SEC all reports required to be filed by Buyer after December
\n31, 2000 pursuant to Section 13(a) of the Exchange Act. Each Buyer SEC Filing at
\nthe time of its filing with the SEC conformed in all material respects to the
\nrequirements of the Exchange Act and the rules and regulations of the SEC
\nthereunder, and none of the Buyer SEC Filings at the time of its filing
\ncontained an untrue statement of a material fact or omitted to state a material
\nfact required to be stated therein or necessary to make the statements therein,
\nin the light of the circumstances under which they were made, not misleading;
\nand any reports filed by Buyer pursuant to Section 13(a) of the Exchange Act
\nafter the date hereof and prior to the Closing, at the time such reports are
\nfiled with the SEC, will conform in all material respects to the requirements of
\nthe Exchange Act and the rules and regulations of the SEC thereunder and will
\nnot contain an untrue statement of a material fact or omit to state a material
\nfact necessary to make the statements therein, in the light of the circumstances
\nunder which they were made, not misleading. Buyer’s filings with the SEC under
\nthe Exchange Act that are available to the public as of the Closing, as amended
\nand supplemented as of the Closing, will not contain any untrue statement of a
\nmaterial fact or omit to state a material fact necessary in order to make the
\nstatements therein not misleading.<\/p>\n
Section 4.8 No Material Adverse Change.
\n ————————–<\/p>\n
Except as set forth in or contemplated by the Buyer SEC Filings filed with
\nthe SEC as of the date hereof or as otherwise disclosed in writing to Seller,
\nsince March 31, 2000, there has been no: (i) material adverse change in the
\nbusiness or financial condition of Buyer and its subsidiaries taken as a whole,
\nother than those occurring as a result of general economic or financial
\nconditions or other factors affecting the major appliance manufacturing and
\ndistributing businesses generally and (ii) material adverse effect on the
\nability of Buyer to consummate the transactions contemplated hereby.<\/p>\n
-43-<\/p>\n
ARTICLE V
\n COVENANTS OF SELLER AND BUYER
\n —————————–<\/p>\n
Section 5.1 Investigation of Business; Access to Properties and Records.
\n ———————————————————–<\/p>\n
(a) Subject to restrictions contained in confidentiality agreements to
\nwhich such party is subject with respect to any information relating to any
\nthird party, prior to the Closing or termination of this Agreement, Seller
\nagrees to give to Buyer and its legal counsel, accountants, lenders, investment
\nbankers and their representatives, upon reasonable prior notice, reasonable
\naccess during normal business hours to all of the Real Property and Leased
\nProperty for inspection and to the books, contracts, commitments and records of
\nthe Business (including computer files, retrieval programs and similar
\ndocumentation and such access and information that may be necessary in
\nconnection with an environmental assessment), and shall permit them to consult
\nwith management employees of the Business, to allow Buyer a full opportunity to
\nmake such investigations as are reasonably necessary to analyze the affairs of
\nthe Business and shall furnish to Buyer or its authorized representatives such
\nadditional information concerning the Purchased Assets, the assets of the
\nSubsidiaries and the Business as shall be reasonably requested, including all
\nsuch information as shall be reasonably necessary to enable Buyer or its
\nrepresentatives to verify the accuracy of the representations and warranties
\ncontained in this Agreement, to verify that the covenants of Global and Seller
\ncontained in this Agreement have been complied with and to determine whether the
\nconditions set forth in Article VI have been satisfied. No investigation made by
\n ———-
\nBuyer or its representatives hereunder shall affect the representations and
\nwarranties of Global and Seller hereunder.<\/p>\n
(b) Subject to restrictions contained in confidentiality agreements to
\nwhich such party is subject with respect to any information relating to any
\nthird party, prior to the Closing or termination of this Agreement, Buyer agrees
\nto give to Seller and its legal counsel, accountants, lenders, investment
\nbankers and their representatives, upon reasonable prior notice, reasonable
\naccess during normal business hours to its books and records, and shall permit
\nthem to consult with management employees of the Buyer and shall furnish to
\nSeller or its authorized representatives such additional information as shall be
\nreasonably requested in order to enable Seller or its representatives to verify
\nthe accuracy of the representations and warranties of Buyer contained in this
\nAgreement, to verify that the covenants of Buyer contained in this Agreement
\nhave been complied with and to determine whether the conditions set forth in
\nArticle VI have been satisfied. No investigation made by Seller or its
\n———-
\nrepresentatives hereunder shall affect the representations and warranties of
\nBuyer hereunder.<\/p>\n
(c) Any information provided to or obtained by Buyer or its
\nrepresentatives, on the one hand, and by Seller and Global or their
\nrepresentatives, on the other hand, pursuant to this Agreement shall be held by
\nBuyer and its representatives in accordance with, and shall be subject to the
\nterms of, the applicable Confidentiality Agreement. Global and Seller agree to
\ndischarge all the obligations of Former Owner to Buyer under the Confidentiality
\nAgreement dated December 18, 2000.<\/p>\n
-44-<\/p>\n
Section 5.2 Reasonable Efforts.
\n ——————<\/p>\n
(a) Subject to the terms and conditions herein provided, Seller, Global
\nand Buyer agree to use reasonable efforts to take, or cause to be taken, all
\nactions and to do, or cause to be done, all things necessary, proper or
\nadvisable to consummate and make effective as promptly as practicable the
\ntransactions contemplated by this Agreement and to cooperate with the other in
\nconnection with the foregoing, including using reasonable efforts:<\/p>\n
(i) to obtain all necessary waivers, consents, releases and
\n approvals (x) from other parties to loan agreements, Leases, guarantees,
\n Permits, Contracts and (y) relating to curing non-monetary title defects
\n regarding the Real Property.<\/p>\n
(ii) to obtain all consents, approvals and authorizations that are
\n required to be obtained under any federal, state, local or foreign law or
\n regulation;<\/p>\n
(iii) to lift or rescind any injunction or restraining order or other
\n order adversely affecting the ability of the parties hereto to consummate
\n the transactions contemplated hereby;<\/p>\n
(iv) to effect all necessary registrations and filings, including
\n filings under the HSR Act and submissions of information requested by
\n governmental authorities; and<\/p>\n
(v) to fulfill all conditions applicable to it pursuant to this
\n Agreement;<\/p>\n
provided that none of Seller, Global or Buyer shall have any obligation to offer
\n——–
\nor pay any consideration in order to obtain any such consents or approvals; and
\nprovided, further, that Seller shall not make any agreement or understanding
\n——– ——-
\naffecting the Purchased Assets or the Business as a condition for obtaining any
\nsuch consents or waivers except with the prior written consent of Buyer.<\/p>\n
(b) To the extent legally permissible, Buyer and Seller shall: (i) furnish
\neach other with such information and assistance as may be reasonably requested
\nto prepare the Notification and Report Forms required to be filed under the HSR
\nAct in connection with the transactions contemplated by this Agreement; and (ii)
\nuse their reasonable efforts to cooperate and consult with each other with
\nrespect to any written or oral responses to any requests for additional
\ninformation or documentary material by the FTC or the Antitrust Division in
\nconnection with the transactions contemplated hereby. Each party warrants that
\nall such filings by it will be, as of the date filed, true and accurate in all
\nmaterial respects and in accordance with the requirements of the HSR Act.
\nNotwithstanding anything herein to the contrary, (i) neither Seller nor Buyer
\nshall be obligated to contest any final action or decision taken by the FTC or
\nthe Antitrust Division or any other governmental or administrative agency,
\nauthority or court challenging the consummation of the transactions contemplated
\nby this Agreement, and (ii) in no event shall Buyer be required to (A) sell or
\notherwise dispose of, hold separate or agree to sell or dispose of, any assets,
\ncategories of assets or businesses of Seller or Buyer or their respective
\nsubsidiaries, (B) terminate existing relationships, contractual rights or
\nobligations or (C) amend or terminate existing licenses or other intellectual
\nproperty agreements or enter into new licenses or other intellectual property
\nagreements to avoid, prevent or terminate any action by the FTC or the Antitrust
\nDivision or any other governmental or administrative agency, authority or court
\nwhich<\/p>\n
-45-<\/p>\n
would restrain, enjoin or otherwise prevent consummation of the transactions
\ncontemplated by this Agreement.<\/p>\n
Section 5.3 Further Assurances.
\n ——————<\/p>\n
From time to time following the Closing, Seller and Global shall execute
\nand deliver, or cause Former Owner to execute and deliver, to Buyer such other
\ninstruments of conveyance and transfer as Buyer may reasonably request or as may
\nbe otherwise necessary to more effectively convey and transfer to, and vest in,
\nBuyer and put Buyer in possession of, any part of the Purchased Assets, and,
\nBuyer shall execute and deliver to Seller such other instruments of assumption
\nas Seller may reasonably request to evidence Buyer’s assumption of the Assumed
\nLiabilities.<\/p>\n
Section 5.4 Conduct of Business.
\n ——————-<\/p>\n
From the date hereof through the Closing, except as otherwise contemplated
\nby this Agreement or with the prior written consent of Buyer, Seller shall
\noperate the Business and maintain the Purchased Assets in the ordinary and usual
\ncourse and substantially in accordance with past practices. In furtherance of
\nthe foregoing commitment, without the prior written consent of Buyer, Seller:<\/p>\n
(a) shall operate, improve, maintain and repair the Purchased Assets
\n(including making all capital expenditures for improvement, maintenance and
\nrepair and restocking or replacing all used or sold inventories and all used
\nsupplies and spare parts) in a prudent, workmanlike manner and in the ordinary
\ncourse of business;<\/p>\n
(b) shall not (i) transfer or cause to be transferred from Seller with
\nrespect to the Business any employee or agent thereof, (ii) offer employment
\nafter the Closing Date to any such employee or agent or (iii) otherwise attempt
\nto persuade any such person to terminate his or her relationship with the
\nBusiness;<\/p>\n
(c) shall not make any material change in the Business or Seller’s
\noperation of the Business;<\/p>\n
(d) shall not cancel any debts owed to or claims held by Seller with
\nrespect to the Business (including the settlement of any claims or litigation)
\nother than in the ordinary course of the Business consistent with past practice;<\/p>\n
(e) shall not accelerate or delay collection of any notes or accounts
\nreceivable generated by the Business in advance of or beyond their regular due
\ndates or the dates when the same would have been collected in the ordinary
\ncourse of the Business consistent with past practice;<\/p>\n
(f) shall not delay or accelerate payment of any account payable or other
\nliability of the Business beyond or in advance of its due date or the date when
\nsuch liability would have been paid in the ordinary course of the Business
\nconsistent with past practice;<\/p>\n
-46-<\/p>\n
(g) shall not institute any increase in any profit-sharing, bonus,
\nincentive, deferred compensation, insurance, pension, retirement, medical,
\nhospital, disability, welfare or other employee benefit plan with respect to
\nemployees of Seller;<\/p>\n
(h) shall not make any change in the compensation of the employees of
\nSeller, other than changes made in accordance with normal compensation practices
\nand consistent with past compensation practices;<\/p>\n
(i) shall not prepare or file any Tax return inconsistent with past
\npractice or, on any such Tax return, take any position, make any election, or
\nadopt any method that (i) is inconsistent with positions taken, elections made
\nor methods used in preparing or filing similar Tax returns in prior periods, and
\n(ii) could reasonably be expected to have any impact on Buyer’s tax liability,
\nunder applicable law or under this Agreement, for any period after the Closing
\nDate;<\/p>\n
(j) other than the use and sale of Inventories and the use of supplies and
\nspare parts in the ordinary course of business, or as contemplated in this
\nAgreement, shall not, directly or indirectly (through any merger, consolidation,
\nreorganization, issuance of securities or rights, or otherwise), sell, assign,
\nconvey, transfer or otherwise dispose of any Purchased Assets or any interest
\ntherein, and shall not inquire about, make any offer or otherwise negotiate with
\nrespect to, or enter into any agreement, contract or arrangement providing for
\nany such sale, assignment, conveyance, transfer or other disposition;<\/p>\n
(k) shall not create or allow to be created any Encumbrances on any
\nPurchased Assets or any interest therein (other than Permitted Exceptions and
\nPermitted Encumbrances);<\/p>\n
(l) shall not (i) amend or modify any Contract, Lease or Permit listed in
\nthe Disclosure Schedule, (ii) enter into any contract, agreement, undertaking or
\ncommitment which would have been required to be set forth in Section 3.10 of the
\n ————
\nDisclosure Schedule if in effect on the date hereof, (iii) enter into any
\ncontract, agreement, undertaking or commitment which cannot be assigned to Buyer
\nor a permitted assignee of Buyer under Section 9.7, (iv) enter into any contract
\n ———–
\nfor the purchase of real property to be used by the Business or for the sale of
\nany Real Property, (v) exercise any option to purchase real property listed in
\nSection 3.4(a) of the Disclosure Schedule or any option to extend a lease of
\n————–
\nLeased Property listed in Section 3.4(b) of the Disclosure Schedule, or (vi)
\n ————–
\nother than in the ordinary course of business, incur any material liability or
\nobligation that would be included among the Assumed Liabilities at the Closing
\nDate;<\/p>\n
(m) shall notify Buyer in writing immediately of any material development
\naffecting the Purchased Assets or the Business, including the following: (i) any
\nmaterial breach or violation of, material default or event of default under, or
\nactual or threatened termination or cancellation of any Contract, Lease or
\nPermit; (ii) any material loss of, damage to, or destruction of any Purchased
\nAsset; (iii) any existing or threatened labor dispute or material written and
\nfiled grievance or claim involving any employees of Seller; (iv) any pending or
\nthreatened claim, demand, investigation, action, suit or other legal proceeding
\nby or before any court, arbitrator, governmental authority or administrative
\nagency involving Seller and relating to any Purchased Asset or the Business (v)
\nany material adverse change in the condition of the Purchased Assets or the
\nBusiness, or (vi) any notice or other communication from any third party
\nalleging that the<\/p>\n
-47-<\/p>\n
consent of such third party is or may be required in connection with the
\ntransactions contemplated by this Agreement;<\/p>\n
(n) shall maintain in full force and effect, to the extent reasonably
\navailable, all insurance now in effect covering the Purchased Assets, the
\nBusiness and the employees of Seller shall not breach any obligation under such
\ninsurance policies in any material respect, and shall give all material notices
\nand present all claims under such insurance policies in a proper and timely
\nmanner;<\/p>\n
(o) shall comply, and shall cause its agents, employees and
\nrepresentatives to comply, in all material respects, with all laws, rules and
\nregulations of any governmental authority applicable to the Purchased Assets or
\nthe Business;<\/p>\n
(p) shall not change any accounting methods or practices followed by
\nSeller or any depreciation, amortization or inventory valuation policies or
\nrates currently used or adopted by Seller and used in the preparation of the
\nDecember 31 Pro Forma Balance Sheet;<\/p>\n
(q) shall not amend or allow to be amended (i) the charter documents or
\nbylaws of AFSI or (ii) the AMANA Finance Partnership Documents; and<\/p>\n
(r) shall use its best efforts to (i) cause AFSI to be qualified to do
\nbusiness as a foreign corporation in each of the jurisdictions listed in Section
\n ——-
\n3.1(e) of the Disclosure Schedule and (ii) comply with the service warranty
\n——
\nregistration laws in each of the states listed in Section 3.6(c) of the
\n ————–
\nDisclosure Schedule.<\/p>\n
Section 5.5 Preservation of Business.
\n ————————<\/p>\n
Subject to the terms and conditions of this Agreement and except as
\notherwise contemplated hereby, Seller shall use reasonable commercial efforts,
\nfrom the date hereof through the earlier of the termination of this Agreement or
\nthe Closing, to preserve intact the goodwill and business organization of Seller
\nand to preserve the relationships of Seller with customers, suppliers and others
\nhaving business relations with Seller.<\/p>\n
Section 5.6 Public Announcements.
\n ——————–<\/p>\n
None of Seller, Global or Buyer shall make, or permit any agent or
\nAffiliate to make, any public statements, including any press releases, with
\nrespect to this Agreement or the transactions contemplated hereby without the
\nprior written consent of the other parties hereto, except as may be required by
\nlaw or the regulations of the New York Stock Exchange (in which case the
\ndisclosing party shall, to the extent reasonably practicable, consult with the
\nother party regarding the contents thereof).<\/p>\n
Section 5.7 No Implied Representation.
\n ————————-<\/p>\n
IT IS THE EXPLICIT INTENT OF EACH PARTY HERETO THAT NONE OF SELLER, GLOBAL
\nOR BUYER IS MAKING ANY REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR
\nIMPLIED, BEYOND THOSE EXPRESSLY GIVEN IN THIS AGREEMENT AND THE DEEDS CONVEYING,
\nTRANSFERRING AND ASSIGNING THE<\/p>\n
-48-<\/p>\n
REAL PROPERTY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IT IS
\nUNDERSTOOD THAT ANY COST ESTIMATES, PROJECTIONS OR OTHER PREDICTIONS CONTAINED
\nOR REFERRED TO IN ANY OF THE OFFERING MEMORANDUM, MANAGEMENT PRESENTATIONS OR
\nOTHER MATERIALS THAT HAVE BEEN PROVIDED TO BUYER ARE NOT AND SHALL NOT BE DEEMED
\nTO BE REPRESENTATIONS OR WARRANTIES OF SELLER OR GLOBAL.<\/p>\n
Section 5.8 Construction of Certain Provisions.
\n ———————————-<\/p>\n
It is understood and agreed that the specification of any dollar amount in
\nthe representations and warranties contained in this Agreement or the inclusion
\nof any specific item in the Disclosure Schedule or the Schedules or Exhibits
\nhereto is not intended to imply that such amounts or higher or lower amounts, or
\nthe items so included or other items, are or are not material, and no party
\nhereto shall use the fact of the setting of such amounts or the fact of the
\ninclusion of any such item in the Disclosure Schedule or the Schedules or
\nExhibits hereto in any dispute or controversy between the parties as to whether
\nany obligation, item or matter not described herein or included in the
\nDisclosure Schedule or a Schedule or Exhibit hereto is or is not material for
\npurposes of this Agreement.<\/p>\n
Section 5.9 Inventory.
\n ———<\/p>\n
As of the Closing Date or such other date as may be agreed by Buyer and
\nSeller, designees of Seller shall conduct, and Buyer shall have the right to
\nobserve, a physical inventory of the Inventory of the Business at all locations,
\nthe results of which shall be included in or used as a basis for the
\ndetermination of Change in Adjusted Working Capital pursuant to Section 2.6.
\n ———–
\nAny dispute with respect to such Inventory shall be resolved in accordance with
\nthe procedures set forth in Section 2.6.
\n ———– <\/p>\n
Section 5.10 Bulk Transfer Compliance.
\n ————————<\/p>\n
Buyer hereby waives compliance with the provisions of any applicable Bulk
\nSales Act under the Uniform Commercial Code in effect in any jurisdiction (the
\n“Bulk Sales Laws”), to the extent applicable to the transactions contemplated
\n —————
\nhereby.<\/p>\n
Section 5.11 Assignment of Contracts.
\n ———————–<\/p>\n
To the extent the assignment of any Contract, Lease, Permit, commitment or
\nother asset to be assigned to Buyer pursuant to the provisions hereof shall
\nrequire the consent of any other person, this Agreement shall not constitute a
\ncontract to assign the same if an attempted assignment would constitute a breach
\nthereof or give rise to any right of acceleration or termination. If any such
\nconsent is not obtained prior to Closing, Global and Seller shall cooperate with
\nBuyer at its request in endeavoring to obtain such consent promptly, and if any
\nsuch consent is unobtainable, to use their reasonable efforts to secure to Buyer
\nthe benefits thereof in some other manner, including enforcement of any and all
\nrights of Seller against the other party thereto arising out of breach or
\ncancellation thereof by such other party or otherwise; provided, however, that
\n ——– ——-
\nnothing herein shall relieve Seller of its obligations under Section 5.2.
\n ———– <\/p>\n
-49-<\/p>\n
Section 5.12 Post-Closing Cooperation.
\n ———————— <\/p>\n
(a) During the Access Period, Buyer shall maintain in a reasonably
\naccessible location all books and records of the Business transferred by Seller
\npursuant to this Agreement. Buyer shall notify Seller prior to disposing of any
\nsuch books and records after the Access Period has expired and, upon request
\nmade by Seller within sixty (60) days after receipt of such notice, Buyer shall
\ndeliver such books and records to Seller, at Seller’s expense; provided,
\n ——–
\nhowever, that Buyer’s obligations under this Section 5.12(a) shall expire on the
\n——- —————
\ndate beginning sixty (60) days after Seller’s receipt of such notice unless
\nSeller has requested such books and records within such 60-day period.<\/p>\n
(b) In recognition of Seller’s obligations with respect to the Excluded
\nLiabilities, Seller’s rights with respect to the Excluded Assets, Seller’s right
\nto review the Closing Date Pro Forma Balance Sheet and the other reasonable
\nneeds of Seller, Buyer shall, after the Closing: (i) afford the officers,
\nemployees and authorized agents and representatives of Seller access, during
\nnormal business hours, to the offices, properties, books and records of Buyer
\nwith respect to the Business and the Excluded Assets located in the Fixtures and
\nImprovements after the Closing; (ii) furnish to the officers, employees and
\nauthorized agents and representatives of Seller such additional financial and
\nother information regarding the Business for the period prior to the Closing as
\nBuyer has in its possession and as Seller may from time to time reasonably
\nrequest; (iii) furnish to the officers, employees and authorized agents and
\nrepresentatives of Seller such additional financial and other information
\nregarding the Excluded Assets as Buyer has in its possession and as Seller may
\nfrom time to time reasonably request; and (iv) make available, without expense
\nto Seller the employees of Buyer whose assistance, testimony or presence is
\nnecessary to assist Seller in evaluation of and in defending any claims or
\nlitigation against Seller, including assuring the presence of such persons as
\nwitnesses in hearings or trials; provided, however, that Buyer shall be
\n ——– ——-
\nreimbursed for its reasonable out-of-pocket expenses incurred in connection with
\nclauses (ii), (iii) and (iv) above.<\/p>\n
Section 5.13 Employees.
\n ———
\n (a) General.
\n ——- <\/p>\n
(i) Effective on the Closing Date and except as otherwise set
\n forth in the Disclosure Schedule, Buyer will hire all of Seller’s salaried
\n and non-bargaining unit hourly personnel employed in connection with the
\n Business (the “Salaried\/Non-Bargaining Unit Employees”) who are actively at
\n ————————————–
\n work immediately prior to the Closing Date and who report to work for Buyer
\n on the first business day after the Closing Date, at a job and rate of pay
\n (including commission structure) comparable to each such employee’s job and
\n pay immediately prior to the Closing Date, provided, however, that Buyer
\n ——– ——-
\n shall not be obligated to hire any Salaried\/Non Bargaining Unit Employee
\n with the title of Vice President (or equivalent) or above, and Buyer will
\n hire all of Seller’s bargaining unit personnel employed in connection with
\n the Business (the “Bargaining Unit Employees”) who are actively at work
\n ————————-
\n immediately prior to the Closing Date and who report to work for Buyer on
\n the first business day after the Closing Date subject to the terms and
\n conditions of the Collective Bargaining Agreements applicable to those
\n employees (collectively, Salaried\/Non-Bargaining Unit Employees” and
\n “Bargaining<\/p>\n
-50-<\/p>\n
Unit Employees” are referred to as “Employees,” and former employees of
\n ———
\n Seller with respect to the Business and Salaried\/Non-Bargaining Unit
\n Employees and Bargaining Unit Employees who do not become employees of
\n Buyer on the first business day after the Closing Date are referred to as
\n “Former Employees”). Notwithstanding anything in this Section 5.13(a) to
\n —————- —————
\n the contrary, Buyer shall hire any Salaried\/Non-Bargaining Unit Employee or
\n Bargaining Unit Employee (other than an Employee with the title of Vice
\n President or equivalent or above) who is on short-term medical leave or
\n other leave of absence on the Closing Date (an “Inactive Employee”) only if
\n —————–
\n such employee is able to and reports for work prior to the expiration of
\n the leave period but not later than 90 days after the Closing Date,
\n whichever first occurs. Inactive Employees shall be included as Former
\n Employees unless and until they become Transferring Employees or
\n Transferring Bargaining Unit Employees pursuant to the following sentence.
\n Salaried\/Non-Bargaining Unit Employees who are hired by Buyer and report to
\n work for Buyer on the first business day after the Closing Date (or, if
\n they are Inactive Employees on the Closing Date, not later than 90 days
\n after the Closing Date) and perform services for Buyer are “Transferring
\n ————
\n Employees.” Bargaining Unit Employees who report to work for Buyer on the
\n ———
\n first business day after the Closing Date (or, if they are Inactive
\n Employees on the Closing Date, not later than 90 days after the Closing
\n Date) and perform services for Buyer are “Transferring Bargaining Unit
\n —————————-
\n Employees.” Except as provided above with respect to Inactive Employees,
\n ———
\n Former Employees shall not be included in the definition of Transferring
\n Employees or Transferring Bargaining Unit Employees hereunder. Subject to
\n Section 5.13(b) (as to Salaried\/Non-Bargaining Unit Employees) and Section
\n ————— ——-
\n 5.13(c) (as to Bargaining Unit Employees), Buyer shall assume all
\n ——-
\n employment-related obligations with respect to the Transferring Employees
\n and Transferring Bargaining Unit Employees accruing on or after the Closing
\n Date, and Seller shall retain all employment-related obligations with
\n respect to Former Employees whenever incurred or accruing and with respect
\n to Transferring Employees and Transferring Bargaining Unit Employees
\n incurred, accruing or attributable to claims incurred or events occurring
\n before the Closing Date, except to the extent such liabilities are
\n reflected on the Closing Date Pro Forma Balance Sheet.<\/p>\n
(ii) For purposes of this Section 5.13 and unless otherwise expressly
\n ————
\n provided herein:<\/p>\n
(A) “employment-related obligations” to be assumed by Buyer with
\n respect to Transferring Employees and Transferring Bargaining Unit
\n Employees shall include compensation for services performed for Buyer after
\n the Closing Date (and related employment and withholding taxes) and unpaid
\n compensation (and related employment and withholding taxes) for services
\n performed for Seller for any payroll beginning on or before the Closing
\n Date and ending after the Closing Date, any Buyer-sponsored employee
\n welfare or pension benefit plan (as defined under ERISA Sections 3(l) and
\n 3(2), respectively) covering the Transferring Employees and Transferring
\n Bargaining Unit Employees with respect to claims incurred on or after the
\n Closing Date, benefits accrued under any other unfunded employee benefit
\n plan or arrangement of Buyer covering the Transferring Employees and
\n Transferring Bargaining Unit Employees on or after the Closing Date, and
\n payouts under Seller’s “Goal Sharing” programs, provided, however, that the
\n ——– ——-
\n liability for amounts owed to Transferring Employees and<\/p>\n
-51-<\/p>\n
Transferring Bargaining Unit Employees under Seller’s “Goal Sharing” program is
\nreflected in the Closing Date Pro Forma Balance Sheet and Seller provides
\ninformation satisfactory to Buyer regarding the calculations and individual
\ntarget levels thereunder; and<\/p>\n
(B) “employment-related obligations” to be assumed by Buyer shall
\nnot include compensation (and related employment and withholding taxes) for
\nservices performed for Seller before the Closing Date (other than unpaid
\ncompensation (and related employment and withholding taxes) for services
\nperformed for Seller for any payroll beginning on or before the Closing Date and
\nending after Closing Date), Seller’s obligation under any bonus retention
\nprogram for selected Transferring Employees referred to in the Disclosure
\nSchedule, benefits accrued or claims incurred under any Seller-sponsored
\nemployee welfare or pension plan (as defined under ERISA Sections 3(1) and 3(2),
\nrespectively) covering the Employees or Former Employees prior to or after the
\nClosing Date or benefits accrued or claims incurred under any other employee
\nbenefit plan or arrangement of Seller covering the Employees or Former Employees
\nprior to or after the Closing Date (except as otherwise provided in subsection
\n(i) with respect to Transferring Employees and Transferring Bargaining Unit
\nEmployees).<\/p>\n
Notwithstanding anything set forth herein to the contrary, (i) Seller shall, and
\nBuyer shall not, be responsible for any employment-related obligations with
\nrespect to any Inactive Employee who becomes a Transferring Employee for any
\nperiod prior to the date such individual becomes a Transferring Employee or
\nTransferring Bargaining Unit Employee, as the case may be, or with respect to
\nFormer Employees, (ii) Buyer shall have no obligation to continue the employment
\nof any Transferring Employee or Transferring Bargaining Unit Employee for any
\ndefinite period following the Closing Date, and (iii) Buyer shall not be
\nprecluded from altering, amending or terminating at any time any of its employee
\nbenefit plans, or the participation of any of its employees in such plans or any
\nSeller plan that Buyer adopts in whole or in part at any time.<\/p>\n
(iii) In reliance on Buyer’s agreement to offer to hire as of the Closing
\nDate substantially all of the Employees, Seller has not given WARN notifications
\nto any of the Business facilities. Buyer will have sole responsibility for any
\nobligations or liabilities to the Employees under WARN for all locations and
\nBuyer agrees to hold Seller harmless for same. Buyer’s indemnification of Seller
\nin this regard specifically includes any claim by such Employees for back pay,
\nfront pay, benefits, or compensatory or punitive damages, any claim by any
\ngovernmental unit for penalties regarding any issue of prior notification (or
\nany lack thereof) of any plant closing or mass layoff occurring on or after the
\nClosing Date, as well as Seller’s defense costs, including reasonable attorneys’
\nfees, in defending any such claims.<\/p>\n
(iv) Seller represents and warrants that Section 5.13 of the Disclosure
\nSchedule sets forth a true and correct list of all Employees, together with
\ntheir respective job titles, continuous service dates and hourly rates or base
\nsalary, as appropriate, as of ten (10) days prior to the date of this Agreement,
\nand will be updated to be true and correct as of ten (10) days prior to the
\nClosing Date.<\/p>\n
-52-<\/p>\n
(v) Seller and Global shall be jointly and severally responsible for
\n the health care coverage of any Former or Inactive Employees as may be
\n required by COBRA under affected Seller Welfare Plans. After the Closing
\n Date, Seller and Global, jointly and severally, shall ensure that the
\n option of continuing health care coverage under the Seller Welfare Plans is
\n extended to the Employees to the extent required by COBRA. Buyer shall be
\n responsible for providing health care continuation coverage as required by
\n COBRA to any Transferring Employees and any Transferring Bargaining Unit
\n Employees terminated by Buyer after the Closing Date.<\/p>\n
(b) Salaried\/Non-Bargaining Unit Employees.
\n ————————————– <\/p>\n
(i) Transferring Employees will receive credit for Past Service (as
\n defined below) in determining vacation entitlement under Buyer’s vacation
\n policy. “Past Service” means service with regard to the Business (x) as an
\n ————
\n employee of Seller or Global and (y) as an employee of predecessor
\n companies prior to the acquisition of the Business by Seller but only to
\n the extent that such service is recognized by Seller for similar purposes
\n on Seller’s employment or payroll records immediately prior to the Closing
\n Date. Buyer will give credit to Transferring Employees for earned but
\n unused vacation and accrued vacation determined as of the Closing Date and
\n an appropriate accrual therefor will be set forth on the Closing Date Pro
\n Forma Balance Sheet.<\/p>\n
(ii) Except as provided in Section 5.13(i), Transferring Employees
\n —————
\n shall be eligible for participation in retirement and other benefit
\n arrangements or benefit plans of Buyer, including Buyer’s applicable
\n severance plans, as determined by Buyer in its sole discretion. Buyer will
\n give credit for Past Service for purposes of (x) participation in and
\n eligibility for benefits under the above-referenced plans or arrangements,
\n and (y) determining vacation and severance benefits; provided, however,
\n ——– ——-
\n that subject to Section 5.13(c), Transferring Employees shall not be
\n —————
\n credited for Past Service for purposes of any defined benefit plan of
\n Buyer. Transferring Employees will also receive credit toward any
\n deductible and co-payment obligation under Buyer’s medical plans for such
\n expenses incurred under Seller’s corresponding plans during the plan year
\n in which the Transferring Employees become eligible to participate in
\n Buyer’s medical plans.<\/p>\n
(iii) Except as provided in Section 5.13(i), Buyer assumes no
\n —————
\n obligations under medical and other welfare benefit plans sponsored by
\n Seller, Global or any Affiliate thereof as defined in Section 3(l) of ERISA
\n covering any Employee or Former Employee prior to or after the Closing Date
\n (“Seller Welfare Plans”). Subject to the provisions of this Section 5.13,
\n ——————– ————
\n Transferring Employees shall be eligible to participate in Buyer’s medical
\n and other welfare plans, as defined in Section 3(1) of ERISA (“Buyer
\n —–
\n Welfare Plans”), in accordance with the terms of such plans. Buyer shall
\n ————-
\n not provide benefit coverage to an Employee or his or her dependents to the
\n extent that such person has not become an employee of, and performed
\n services for, Buyer. Buyer will waive any preexisting condition
\n restrictions under the Buyer Welfare Plans with respect to Transferring
\n Employees or their dependents. In particular, but without limitation, (x)
\n claims for medical, hospital or other health care expenses incurred by
\n Transferring Employees or their dependents on or after the Closing Date
\n shall be covered under the Buyer Welfare Plans, subject to the limitations
\n thereof (but in accordance with the terms<\/p>\n
-53-<\/p>\n
of this Agreement), and claims for such expenses incurred by Transferring
\n Employees or their dependents prior to the Closing Date shall be covered,
\n subject to the limitations thereof (but in accordance with the terms of
\n this Agreement), under Seller’s Welfare Plans; (y) claims of Transferring
\n Employees or their dependents for life insurance, accidental death and
\n dismemberment and disability benefits with respect to death, disability or
\n other injury occurring on or after the Closing Date shall be covered under
\n Buyer’s Welfare Plans; and (z) claims for such benefits with respect to
\n death, disability or injury occurring prior to the Closing Date shall be
\n covered under Seller’s plans (as applicable). The amount and type of
\n benefits payable in any case shall be determined in accordance with the
\n terms of the applicable Welfare Plan.<\/p>\n
(iv) Buyer agrees to indemnify and hold Seller harmless from and
\n against any and all claims for severance with respect to Transferring
\n Employees arising out of Buyer’s termination of a Transferring Employee
\n after the Closing Date.<\/p>\n
(c) Bargaining Unit Employees.
\n ————————- <\/p>\n
(i) Seller is a party to the Collective Bargaining Agreements. On
\n and after the Closing Date, Buyer agrees to perform all rights, duties, and
\n obligations imposed on an employer by the Collective Bargaining Agreements
\n with respect to the performance of services by Transferring Bargaining Unit
\n Employees on and after the Closing Date and by the Amana Refrigeration,
\n Inc. Iowa Bargaining Unit Pension Plan (the “Pension Plan”) in accordance
\n ————
\n with Section 5.13(c)(iii), but only if the applicable union agrees to the
\n ——————–
\n continued application of such agreements pursuant to their terms after the
\n Closing Date. Seller agrees to indemnify and hold Buyer harmless from and
\n against any claims made by any Transferring Bargaining Unit Employee or
\n collective bargaining representative which arise out of or relate to the
\n Collective Bargaining Agreements or the Pension Plan, which claims or
\n events giving rise to such claims occurred prior to the Closing Date.
\n Except as provided in Section 5.13(i), claims for medical, hospital, or
\n —————
\n other health care expenses incurred on or after the Closing Date by
\n Transferring Bargaining Unit Employees shall be covered under the Buyer
\n Welfare Plans, subject to the limitations thereof (but in accordance with
\n the terms of this Agreement) and claims for medical, hospital or other
\n health care expenses incurred by such Transferring Bargaining Unit
\n Employees or their dependents prior to the Closing Date shall be covered
\n under the Seller Welfare Plans; and claims by Transferring Bargaining Unit
\n Employees or their dependents for life insurance, accidental death and
\n dismemberment and disability benefits with respect to death, disability or
\n other injury occurring on or after the Closing Date shall be covered under
\n the Buyer Welfare Plans, subject to the limitations thereof (but in
\n accordance with the terms of this Agreement) and claims for such benefits
\n with respect to death, disability or injury occurring prior to the Closing
\n Date shall be covered under the Seller Welfare Plans. The amount and type
\n of benefits payable in any case shall be determined in accordance with the
\n terms of the applicable Welfare Plan.<\/p>\n
(ii) Buyer will give credit for Past Service to Transferring
\n Bargaining Unit Employees for purposes of (x) participation in and
\n eligibility for benefits under Buyer’s Welfare Plans, and (y) determining
\n vacation and severance benefits, provided, however,<\/p>\n
-54-<\/p>\n
that except as provided in subsection (iii)(A) below, Transferring
\n Bargaining Unit Employees shall not be credited for Past Service for
\n purposes of any defined benefit plan of Buyer. Buyer will give credit to
\n Transferring Bargaining Unit Employees for earned but unused vacation and
\n accrued vacation determined as of the Closing Date and an appropriate
\n accrual therefor will be set forth on the Closing Date Pro Forma Balance
\n Sheet. Transferring Bargaining Unit Employees will also receive credit
\n toward any deductible and co-payment obligation under Buyer’s Welfare Plans
\n for such expenses incurred under Seller’s corresponding plans during the
\n plan year in which Transferring Bargaining Unit Employees become eligible
\n to participate in Buyer’s Welfare Plans.<\/p>\n
(iii) (A) The parties shall take any and all necessary and advisable
\n actions in order to cause sponsorship of the Pension Plan and its related
\n trust (or other funding vehicle) to be transferred, effective as of the
\n Closing Date, from Seller to Buyer, provided, that the applicable union
\n agrees to the continued application of the Collective Bargaining Agreement
\n pursuant to which the Pension Plan is maintained under its terms after the
\n Closing Date.<\/p>\n
(B) As soon as practicable after the Closing Date, Buyer shall
\n designate an independent certified actuary (“Buyer’s Actuary”) to make a
\n —————
\n calculation of the “accumulated benefit obligation” (the “ABO”) of the
\n —
\n Pension Plan as of June 30, 2001 (the “Valuation Date”) using the actuarial
\n ————–
\n methods and assumptions (including interest and discount rates) adopted by
\n Seller for fiscal years beginning on January 1, 2001. Buyer shall deliver
\n to Seller within thirty (30) days after the Closing Date (or as soon as
\n practicable thereafter), a schedule of such calculations with respect to
\n the Pension Plan. Seller shall have right to appoint an independent
\n certified actuary (“Seller’s Actuary”) who shall review the ABO calculated
\n —————-
\n by Buyer’s Actuary in this paragraph (B) and the methods and assumptions
\n used in calculating such amount. Such amount and such methods and
\n assumptions as certified by Buyer’s Actuary shall be final, conclusive and
\n binding on Seller and Buyer unless, within 60 days after the delivery of
\n such certification by Buyer’s Actuary to Seller’s Actuary, together with
\n such supporting information as Seller’s Actuary may reasonably request,
\n Seller’s Actuary shall notify Buyer’s Actuary of its disagreement with such
\n amount or methods and assumptions. If any such disagreement is not resolved
\n to the satisfaction of Seller and Buyer within sixty (60) days of Buyer’s
\n receipt of such notification (or within such longer period as Buyer and
\n Seller shall mutually agree), either Seller or Buyer may elect to have the
\n calculations submitted for resolution to a third independent actuary
\n appointed mutually by Seller and Buyer, whose determination shall be made
\n within sixty (60) days and shall be conclusive, final and binding. Each
\n party shall bear the expenses of its own actuary and the expenses of the
\n third actuary, if any, shall be shared equally by Buyer and Seller.<\/p>\n
(C) To the extent that the ABO of the Pension Plan as
\n determined hereunder exceeds the fair market value of the assets of the
\n Pension Plan as of the Closing Date, Seller shall, within thirty (30) days
\n after notice thereof from Buyer contribute to the Pension Plan the excess
\n of the ABO of the Pension Plan over such fair market value, together with
\n interest on such amount at a rate of interest per annum equal to the prime
\n rate in effect on the Closing Date as reported in The Wall Street Journal
\n ———————–
\n for the period beginning on the Closing Date and ending on the date of such
\n contribution.<\/p>\n
-55-<\/p>\n
(d) Retirement Plan Matters.
\n ———————– <\/p>\n
(i) Seller shall cause the trustee of the Goodman\/Amana 401K Plan
\n (the “Goodman 401K Plan”) and the Amana Company, L.P. 401K Plan for
\n —————–
\n Specified Hourly Employees, (the “Amana 401K Plan”) (as applicable) to
\n —————
\n transfer the account balances (vested and unvested) of each Transferring
\n Employee and Transferring Bargaining Unit Employee with an account balance
\n under the Goodman 401K Plan and the Amana 401K Plan (as applicable) from
\n the Goodman 401K Plan or the Amana 401K Plan (as applicable) to one or more
\n new or existing defined contribution plans maintained or established by
\n Buyer (the “Buyer’s Savings Plan”) as follows. As soon as practicable after
\n ——————–
\n the Closing Date, but no later than one hundred twenty (120) days after the
\n Closing Date, Seller shall cause the account of each Transferring Employee
\n and Transferring Bargaining Unit Employee to be valued pursuant to the
\n terms of the Goodman 401K Plan and the Amana 401K Plan (as applicable). As
\n of such valuation date, assets equal in value to the amount credited each
\n such Transferring Employee’s and Transferring Bargaining Unit Employee’s
\n account under the Goodman 401K Plan and the Amana 401K Plan (as applicable)
\n shall be transferred to the trust maintained under Buyer’s Savings Plan.
\n Such transferred assets shall be in cash (except shall also include any
\n promissory notes evidencing outstanding loan balances of the Transferring
\n Employees and Transferring Bargaining Unit Employee), and shall be in
\n accordance with Section 414(l) of the Code. Prior to, and as a condition
\n of, any transfer of assets each party shall provide the other with
\n satisfactory evidence that its plan is qualified under Section 401(a) of
\n the Code. The liability for contributions to the above-described plans on
\n behalf of the Transferring Employees and Transferring Bargaining Unit
\n Employees with respect to their contributions to or compensation under such
\n plans through the Closing Date shall be accrued on the Closing Date Pro
\n Forma Balance Sheet. As of the transfer date, Buyer’s Savings Plan will be
\n liable for the payment of benefits accrued by and transferred in respect of
\n the Transferring Employees and Transferring Bargaining Unit Employee from
\n the Goodman 401K Plan and the Amana 401K Plan; provided, however, that
\n ——– ——-
\n neither Buyer nor Buyer’s Savings Plan assumes any liability for the
\n valuation of the accounts of the Transferring Employees and Transferring
\n Bargaining Unit Employee under the Goodman 401K Plan or the Amana 401K
\n Plan.<\/p>\n
(ii) On or before December 31, 2001, Seller shall file and Global
\n shall cause to have filed with the Internal Revenue Service a request for a
\n determination letter from the Internal Revenue Service to the effect that
\n the Amana 401K Plan and the Goodman 401K Plan are each a qualified plan
\n within the meaning of section 401(a) of the Code and their related trusts
\n are exempt from taxation under section 501(a) of the Code. Seller shall
\n take and Global shall cause to have taken such further actions, including
\n the execution of such further instruments and amendments, as required by
\n the Internal Revenue Service in order to obtain such determination letter.<\/p>\n
(e) Flexible Spending Accounts. Buyer shall establish flexible spending
\n ————————–
\naccounts for medical and dependent care expenses under a new or existing plan
\nestablished or maintained under Section 125 and Section 129 of the Code
\n(“Buyer’s FSA”), effective as of the Closing Date, for each Transferring
\n ———–
\nEmployee and Transferring Bargaining Unit Employee who, on or prior to the
\nClosing Date, is a participant, and maintains a positive account balance, in a
\nflexible<\/p>\n
-56-<\/p>\n
spending account for medical or dependent care expenses under a plan
\n maintained by Seller pursuant to Section 125 and Section 129 of the Code
\n (“Seller’s FSA”). Buyer shall credit, effective as of the Closing Date, the
\n ————
\n applicable account of each such Transferring Employee and Transferring
\n Bargaining Unit Employee under the Buyer FSA with an amount equal to the
\n balance of each such Transferring Employee’s and Transferring Bargaining
\n Unit Employee’s account under the Seller’s FSA on the date immediately
\n prior to the Closing Date; provided, however, that the aggregate amount
\n credited by Buyer under the Buyer’s FSA to all such Transferring Employees
\n and Transferring Bargaining Unit Employees pursuant to this sentence is
\n accrued on the Closing Date Pro Forma Balance Sheet. Buyer and Seller
\n intend that the actions to be taken pursuant to this subsection (e) be
\n treated as an assumption by Buyer of that portion of the Seller’s FSA and
\n the elections made thereunder attributable to Transferring Employees and
\n Transferring Bargaining Unit Employees.<\/p>\n
(f) Cooperation. Seller and Buyer shall cooperate and provide such
\n ———–
\n information as may reasonably be necessary with respect to each of the
\n actions contemplated in this Section 5.13, including the procurement of any
\n ————
\n required government approvals. Seller and Buyer shall also cooperate to
\n provide a means of continuing the repayment of outstanding loans of
\n Transferring Employees from the Goodman 401K Plan for the period of time
\n commencing after the Closing Date and ending on the date of the transfer of
\n assets described in Section 5.13(d).
\n —————<\/p>\n
(g) Obligations. It is intended by the parties that the
\n ———–
\n responsibilities, liabilities, and covenants assumed or agreed to by Buyer
\n pursuant to this Section 5.13 shall also bind any Affiliate of Buyer to
\n ————
\n which all or any portion of the Business is transferred, and Buyer agrees
\n to cause any such Affiliate to observe the provisions and covenants of this
\n Section 5.13.
\n ————<\/p>\n
(h) Reporting Requirements. Seller and Buyer hereby agree to utilize
\n ———————-
\n the “Alternate Procedure” set forth in Revenue Procedure 96-60, 1996-2 C.B.
\n 399, or a corresponding future revenue procedure or other administrative
\n pronouncement, with regard to the reporting requirements attributable to
\n wages paid or to be paid to Transferring Employees and Transferring
\n Bargaining Unit Employees.<\/p>\n
(i) Interim Welfare Coverage. Seller, Global and Buyer acknowledge
\n ————————
\n that Seller and Global will offer Transferring Employees and Transferring
\n Bargaining Unit Employees extended health coverage under Seller’s or
\n Global’s health plans as required by COBRA. Seller shall also use its best
\n efforts in cooperating with Buyer in causing the insurance carriers and
\n third party administrators of Seller’s accidental death and dismemberment
\n and life insurance plans to provide Transferring Employees and Transferring
\n Bargaining Unit Employees extended coverage under Seller’s accidental death
\n and dismemberment and life insurance plans until such time as Buyer’s
\n accidental death and dismemberment and life insurance plans are effective.
\n Buyer agrees that Buyer’s health, accidental death and dismemberment and
\n life insurance plans covering Transferring Employees and Transferring
\n Bargaining Unit Employees will be effective no later than one hundred
\n twenty (120) days following the Closing Date and that it will indemnify and
\n hold Seller, Global and their respective health, accidental death and
\n dismemberment and life insurance plans harmless from any liability for
\n expenses which would have been covered by Buyer’s health, accidental death
\n and dismemberment and life insurance plans had they been implemented as of
\n the Closing Date. The amount of indemnifiable health, accidental death and
\n dismemberment and life insurance expenses will equal the sum of (i) the<\/p>\n
-57-<\/p>\n
amount actually paid by Seller’s or Global’s plans (as applicable) between the
\nClosing Date and the effective date of the applicable Buyer plan, less (ii) any
\ncontributions actually paid by Buyer (or the Transferring Employees and the
\nTransferring Bargaining Unit Employees) after the Closing Date, provided that
\nSeller shall not refund any such contributions if the amount in clause (ii)
\nexceeds the amount in clause (i). Seller and Global agree that, if requested by
\nBuyer, Seller and Global shall use their best efforts to assist Buyer during
\nsuch 120-day period in the transition from Seller to Buyer of providing health,
\naccidental death and dismemberment and life insurance coverage to Transferring
\nEmployees and Transferring Bargaining Unit Employees for the period extending
\nbeyond such 120-day period.<\/p>\n
(j) No Third Party Rights. No Transferring Employee or Transferring
\n ———————
\nBargaining Unit Employee or other Former Employee or Employee of Seller
\nincluding any beneficiary or dependent thereof, or any other person not a party
\nto this Agreement, shall be entitled to assert any claim hereunder.<\/p>\n
(k) Costs. Except as otherwise provided in this Section 5.13, where this
\n —– ————
\nSection 5.13 requires a party to take any action or perform any task, the party
\n————
\nobligated to take such action or perform such task shall be responsible for all
\nfees, costs and other expenses incurred for, and related to, such actions or
\ntasks.<\/p>\n
Section 5.14 Right to Update.
\n —————<\/p>\n
From time to time prior to the Closing, Seller shall have the right (but
\nnot any obligation) to update or amend in any respect its disclosure of any
\nmatter set forth or permitted to be set forth in the Disclosure Schedule. No
\nsuch update or amendment shall be considered or given effect for purposes of
\ndetermining the satisfaction of the conditions set forth in Article VI or the
\n ———-
\nright to terminate and the effect of termination in Article VIII but, if the
\n ————
\ntransactions contemplated hereunder are consummated, the Disclosure Schedule (as
\nso updated or amended) shall be used for purposes of determining whether the
\nBuyer Indemnified Parties are entitled to indemnification under Section
\n ——-
\n7.2(a)(ii).
\n———-<\/p>\n
Section 5.15 Tax Matters.
\n ———–<\/p>\n
(a) Except as provided in Section 2.9 and Section 5.15(f), Seller shall
\n ———– —————
\nbe liable for and pay, and pursuant to Article VII, Seller Group shall indemnify
\n ———–
\nand hold harmless each Buyer Indemnified Party against all Taxes (including any
\namounts owed by a Buyer Indemnified Party relating to Taxes pursuant to a
\ncontract or otherwise) applicable to the Business, the Purchased Assets and the
\nAssumed Liabilities, in each case attributable to taxable years or periods
\nending on or prior to the Closing Date and, with respect to any Overlap Period,
\nthe portion of such Overlap Period ending on and including the Closing Date.
\nBuyer shall be liable for and pay, and pursuant to Article VII shall indemnify
\n ———–
\nand hold harmless each Seller Indemnified Party against, all Taxes applicable to
\nthe Business, the Purchased Assets and the Assumed Liabilities that are
\nattributable to taxable years or periods beginning after the Closing Date and,
\nwith respect to any Overlap Period, the portion of such Overlap Period beginning
\nafter the Closing Date; provided, however, that Buyer shall not be liable for or
\n ——– ——-
\npay, and shall not indemnify and hold harmless any Seller Indemnified Party
\nagainst any Taxes for which Seller is liable under this Agreement. For purposes
\nof this Section 5.15, but except as otherwise provided in Section 5.15(e) and
\n ———— —————
\nSection
\n——-<\/p>\n
-58-<\/p>\n
5.15(f), any Overlap Period shall be treated on a “closing of the books”
\n ——-
\n basis as two partial periods, one ending at the close of the Closing Date
\n and the other beginning on the day after the Closing Date, except that
\n Taxes imposed on a periodic basis shall be allocated on a daily basis.<\/p>\n
(b) Seller or Buyer, as the case may be, shall provide reimbursement
\n for any Tax paid by one party all or a portion of which is the
\n responsibility of the other party in accordance with the terms of this
\n Section 5.15 without regard to the aggregate indemnification limitations
\n ————
\n set forth in Section 7.2(f). Within a reasonable time prior to the payment
\n ————–
\n of any such Tax, the party paying such Tax shall give notice to the other
\n party of the Tax payable and the portion which is the liability of each
\n party, although failure to do so will not relieve the other party from its
\n liability hereunder.<\/p>\n
(c) Seller shall be liable for and pay, and pursuant to Article VII,
\n ———–
\n shall indemnify and hold harmless the Buyer Indemnified Parties from and
\n against (i) all Taxes imposed on AFSI pursuant to Treas. Reg. (S) 1.1502-6
\n or similar provisions of state, local or foreign law, (ii) all Taxes
\n imposed on AFSI, or for which AFSI may otherwise be liable, for any taxable
\n year or period that ends on or before the Closing Date and, with respect to
\n any Overlap Period, that portion of such Overlap Period that ends on and
\n includes the Closing Date.<\/p>\n
(d) Buyer shall be liable for and pay, and pursuant to Article VII
\n ———–
\n shall indemnify and hold harmless Seller Indemnified Parties from and
\n against, all Taxes imposed on AFSI for any taxable year or period that
\n begins after the Closing Date and, with respect to any Overlap Period, that
\n portion of such Overlap Period that begins after the Closing Date.<\/p>\n
(e) Notwithstanding anything to the contrary in Section 5.15(c) and
\n —————
\n Section 5.15(d), Seller Group and Buyer shall be liable for and, pursuant
\n —————
\n to Article VII, shall indemnify and hold harmless Buyer Indemnified Parties
\n ———–
\n and Seller Indemnified Parties, respectively, for any Taxes that arise from
\n and relate solely to AFSI’s distributive share of Amana Finance’s taxable
\n income for the Overlap Period. For purposes of this Section 5.15(e), AFSI’s
\n —————
\n distributive share of Amana Finance’s taxable income for the Overlap Period
\n shall be prorated between Seller and Buyer on a daily basis except to the
\n extent such distributive share relates to transactions or events occurring
\n outside the ordinary course of Amana Finance’s operations (“Extraordinary
\n ————-
\n Distributive Item”), in which case such Extraordinary Distributive Item(s)
\n —————–
\n shall be treated as being allocated to AFSI on the day(s) the related
\n transaction or event occurs, and then allocated to either Seller or Buyer,
\n as the case may be, on a “closing of the books basis” pursuant to Section
\n ——-
\n 5.15(a).
\n ——-<\/p>\n
(f) Notwithstanding anything herein to the contrary, the Closing Date
\n Pro Forma Balance Sheet shall include an accrual (as a current liability)
\n for, and Seller shall have no further liability for, (x) employment Taxes
\n attributable to that portion of any Overlap Period (prorated on a daily
\n basis) ending on the Closing Date, and (y) any unpaid real and personal
\n property Taxes attributable to any taxable period that begins before but
\n Taxes with respect to which are not payable until after the Closing Date
\n (prorated, in the case of Overlap Periods, on a daily basis); provided,
\n ——–
\n however, that such real and personal property taxes for any such taxable
\n ——-
\n period, to the extent not known as of the Closing Date, shall be deemed
\n (and, for purposes of successive taxable periods for which this Section
\n ——-
\n 5.15(f) relates, shall be treated as if such Taxes are known as of the
\n ——-
\n Closing Date) to equal 105 percent of the amount of Seller’s real property
\n or personal property Taxes, as the case may be, for the most recent taxable
\n period for which real and<\/p>\n
-59-<\/p>\n
personal property Taxes are known as of the Closing Date, and that such
\n deemed real or personal property Taxes for such taxable period shall be
\n reasonably adjusted for any acquisitions or dispositions of property
\n occurring after the close of the most recently applicable taxable period.<\/p>\n
(g) Prior to the Closing, Seller will: (i) file or cause to be filed
\n all Tax returns required by governmental agencies due on or before the
\n Closing Date (or timely obtain extensions with respect thereto), and (ii)
\n fully pay or cause to be paid in a timely manner all Taxes required to be
\n paid by it, except such Taxes as are being contested in good faith and are
\n reflected in the Disclosure Schedule, upon or against the Purchased Assets
\n so that no lien for Taxes (other than liens assumed by Buyer hereunder)
\n shall attach to the Purchased Assets.<\/p>\n
(h) After the Closing Date, and upon reasonable written request of
\n the other party, Seller and Buyer will provide each other with such
\n cooperation and information as such parties reasonably may request in
\n filing any Tax return, amended Tax return or claim for refund, determining
\n a liability for Taxes or a right to a refund of Taxes or participating in
\n or conducting any audit or other proceeding in respect of Taxes. Such
\n cooperation and information shall include providing copies of relevant Tax
\n returns or portions thereof, together with accompanying schedules and
\n related work papers and documents relating to rulings or other
\n determinations by taxing authorities, but in no event shall the parties be
\n required to disclose to each other any information relating to their
\n business operations other than the operation of the Business prior to the
\n Closing Date. Each party shall make its employees available on a mutually
\n convenient basis to provide explanations of any documents or information
\n provided hereunder. Any information provided or obtained under this Section
\n ——-
\n 5.15 shall be kept confidential, except as may otherwise be necessary in
\n —-
\n connection with the filing of returns or claims for refund or in conducting
\n an audit or other Tax proceeding. In the event of any contest with a taxing
\n authority regarding property Taxes relating to the Purchased Assets for any
\n tax or assessment period which is subject to proration under Section 2.9,
\n ———–
\n Buyer shall have the right to control the contest and reasonable out-of-
\n pocket expenses with respect to such contest shall be borne by Buyer.<\/p>\n
(i) Each party shall provide the other with the requisite information
\n reasonably requested by the other party to allow the preparation of any
\n federal, foreign, state and local income tax returns for the period prior
\n to and including the Closing Date. Such information shall be provided, in
\n the tax information reporting format customarily used by Seller, on or
\n before sixty (60) days, to the extent reasonably practicable, after the
\n Closing Date.<\/p>\n
(j) The parties shall promptly notify each other in writing upon
\n receipt of notice of any pending or threatened Tax audits or assessments
\n relating to the Purchased Assets or to any member of Seller’s or Buyer’s
\n Affiliated Group (as defined in Section 1504 of the Code) in each case for
\n periods prior to the Closing or for Overlap Periods.<\/p>\n
(k) Buyer shall timely file all sales and use Tax or other such Tax
\n returns for any Overlap Period and for periods ending on or prior to the
\n Closing Date where the due date for such returns is a date after the
\n Closing Date, and Buyer shall pay the Taxes shown as due on any such
\n returns. To the extent such returns are filed on behalf of Seller, all such
\n returns shall be clearly designated as “Final Return”. Seller shall pay to
\n the Buyer Seller’s share of any such Taxes (to the extent not already paid
\n by Seller or by the partners of Seller) due pursuant to the filing of any
\n such Tax returns under the provisions of this subsection within thirty (30)
\n business<\/p>\n
-60-<\/p>\n
days of receipt of notice of such filing and payment by Buyer, which notice
\nshall set forth in reasonable detail the calculations determining Seller’s share
\nof such Taxes. However, prior to filing such returns, Buyer will provide Seller
\nthe opportunity to review any Tax returns that it files after the Closing Date
\nfor which Seller is liable for any portion of Tax due on such returns.<\/p>\n
Section 5.16 Agreement Not to Compete.
\n ———————— <\/p>\n
(a) Except as provided in Section 5.16(d), for a period of seven (7) years
\n —————
\nfollowing the Closing Date, neither Seller nor Global shall, and Global shall
\nnot permit or suffer any of its current or future Affiliates to, own or operate
\nany major appliance manufacturing business that would compete with the Business
\nor Buyer anywhere in the world.<\/p>\n
(b) For the purposes of this Section 5.16, “major appliance manufacturing
\n ———–
\nbusiness” does not include any type of activity other than the Business in which
\nGlobal or any of its Affiliates currently engages, such as the HVAC Business
\n(all material business of Global or any of its Affiliates being listed on
\nSection 5.16 of the Disclosure Schedule.
\n————<\/p>\n
(c) Notwithstanding the foregoing, Global may acquire all or a portion of
\nthe stock or assets of another entity involved in the major appliance
\nmanufacturing business, so long as the assets or sales of the major appliance
\nmanufacturing business do not constitute more than 20% of the assets or sales of
\nsuch other entity (as reflected in its most recent annual financial statements).<\/p>\n
(d) In the event of breach of Seller’s and Global’s covenant as set forth
\nabove, it is understood and agreed that Buyer shall be entitled to injunctive
\nrelief as well as any and all other applicable remedies at law and in equity
\navailable to Buyer. If a court of competent jurisdiction should declare this
\ncovenant unenforceable, in whole or in part, due to any unreasonable restriction
\nof duration and\/or geographical area, then Buyer, Seller and Global hereby
\nacknowledge and agree that such a court of law or equity shall have the express
\nauthority of the parties to this Agreement to reform this covenant to a
\nreasonable restriction and\/or to grant Buyer any and all other relief, at law or
\nin equity, reasonably necessary to protect the interests of Buyer. Seller and
\nGlobal expressly covenant and acknowledge that Seller and Global consider this
\nrestrictive covenant reasonable.<\/p>\n
Section 5.17 Commitments for Title Insurance.
\n ——————————- <\/p>\n
Seller shall cause to be delivered to Buyer not more than thirty days after
\nthe date of this Agreement, a Title Commitment and Survey with respect to each
\nparcel of Real Property, each of which shall contain all items, coverages and
\nendorsements specified in the definitions of such terms set forth above in this
\nAgreement. Each such Title Commitment and Survey shall be updated by Seller to a
\ndate that is no earlier than twenty (20) business days prior to the Closing
\nDate, and no later than ten (10) business days prior to the Closing Date, and
\nSeller shall cause all such updated Surveys and Title Commitments to be
\ndelivered to Buyer no later than ten (10) business days prior to the Closing
\nDate. Within five (5) business days after Buyer learns of the same (but not
\nlater than the Closing Date (as the same may be extended pursuant to the express
\nprovisions of this Agreement)), Buyer shall have the right to notify (“Title
\n —–
\nObjection Notice”) Seller of its objection to title exceptions and\/or survey
\n—————-
\nmatters which: (i) arise after the execution<\/p>\n
-61-<\/p>\n
date of this Agreement but prior to the Closing Date, (ii) do not
\n constitute Permitted Exceptions and (iii) adversely affect the use and
\n operation of the property (collectively “valid title\/survey objections”).
\n —————————–
\n Upon receipt of any such Title Objection Notice from Buyer, Seller shall
\n have the right, but not the obligation, to cure the valid title\/survey
\n objection(s) and to adjourn the Closing to a date specified by Seller upon
\n five (5) days’ notice to Buyer but not beyond the date which is thirty (30)
\n days after the then scheduled Closing Date (“Adjourned Date”), provided,
\n ————–
\n Seller shall have an affirmative obligation to cure any valid title\/survey
\n objection which can be cured with the payment of money, not to exceed
\n $250,000.00. Seller shall promptly, but in no event later than five (5)
\n days after Seller’s receipt of a Title Objection Notice, notify Buyer in
\n writing of Seller’s election to cure (and, as applicable, to adjourn the
\n Closing) or not to cure such valid title\/survey objection(s). If Seller
\n elects to adjourn the Closing and cures the valid title\/survey objections
\n on or before the Adjourned Date, then (subject to satisfaction or waiver of
\n the conditions contained in Article VI) the Closing shall occur on such
\n ———-
\n Adjourned Date specified by Seller in accordance with the provisions of
\n this Agreement without any reduction in or abatement of the Purchase Price
\n to Seller. It is acknowledged and agreed that Seller shall be deemed to
\n have cured a valid title\/survey objection if Seller obtains the commitment
\n of the Title Company to insure or endorse over such valid title\/survey
\n objection and pays all premiums for such insurance or endorsement over the
\n valid title\/survey objection (to the extent charged by the Title Company).
\n If Seller (I) fails to notify Buyer in writing of Seller’s election to cure
\n or not to cure any valid title\/survey objection within the time prescribed
\n above, (II) fails to cure a valid title\/survey objection which Seller has
\n elected to cure on or before the later of the Closing Date and the
\n Adjourned Date, or (III) elects by notice at any time not to cure any valid
\n title\/survey objection, then Buyer shall have the right to either (i) in
\n the event such valid title\/survey objection has a material and adverse
\n affect of the use and operation of such property, terminate this Agreement
\n by written notice delivered to Seller or (ii) complete the transactions
\n contemplated hereby in accordance with this Agreement without reduction in
\n or abatement of the Purchase Price to Seller; provided, however, that this
\n ——– ——-
\n shall not relieve Buyer of any of its obligations hereunder. At Closing,
\n Seller shall cause the Title Company to issue the Title Policies (including
\n all coverages and endorsements required under this Agreement) to Buyer.<\/p>\n
Section 5.18 Change in Entity Names.
\n ———————- <\/p>\n
Seller and Global agree to (i) promptly after the Closing Date change
\n Seller’s and Holding’s and Former Owner’s names to names that do not
\n include the word “Amana” or any variation thereof and (ii) as soon as
\n reasonably practicable after the Closing Date, discontinue, and cause their
\n respective Affiliates to discontinue, all use of the word “Amana” except as
\n specifically permitted in the Trademark License Agreement.<\/p>\n
Section 5.19 Collection of Receivables.
\n ————————-<\/p>\n
(a) From and after the Closing Date, Buyer shall use its best efforts
\n to collect the accounts and notes receivable reflected in the Closing Date
\n Pro Forma Balance Sheet (the “Closing Date Receivables”) generally in
\n ————————
\n accordance with the billing and collection practices presently applied by
\n the Business in the collection of its accounts and notes receivable, except
\n that with respect to any particular Closing Date Receivable, Buyer shall be
\n under no obligation to commence or not to commence litigation to effect
\n collection and may make any adjustment, concession or settlement which in
\n the good faith judgment of Buyer is commercially reasonable.<\/p>\n
-62-<\/p>\n
In connection with the collections by Buyer, if a payment is received from an
\naccount debtor who has not designated the invoice being paid thereby, such
\npayment shall be applied to the earliest invoice outstanding with respect to
\nindebtedness of such account debtor, except for those invoices which are subject
\nto a dispute to the extent of such dispute.<\/p>\n
(b) Buyer shall, on or before the tenth business day of each calendar
\nmonth commencing with the second complete calendar month following the Closing
\nDate, deliver to Seller a written report (“Collection Report”) of the following
\n —————–
\ninformation with respect to the Closing Date Receivables: <\/p>\n
(i) the aggregate amount of the Closing Date Receivables (and the
\n number of accounts comprising such Closing Date Receivables); and<\/p>\n
(ii) the aggregate amount of cash collections of the Closing Date
\n Receivables during the period from the Closing Date through the date of the
\n Collection Report.<\/p>\n
(c) If, after giving effect to all adjustments, concessions and
\nsettlements made and collection fees incurred (in each case in accordance with
\nSection 5.19(a)), Buyer has not collected, within 120 days after the Closing
\n—————-
\nDate, an amount equal to the excess of the Closing Date Receivables over the
\nallowance for doubtful accounts shown on the Closing Date Pro Forma Balance
\nSheet (such excess being referred to herein as the “Net Amount of Receivables”),
\n ————————-
\nthen Buyer shall have the right to require Seller to pay Buyer an amount (the
\n“Uncollected Receivables Amount”) equal to (i) the Net Amount of Receivables
\n ——————————
\nminus (ii) the amount collected in cash (after giving effect to the items set
\n—–
\nforth above) by Buyer during such 120 day period in respect of the Closing Date
\nReceivables; provided that Seller shall be required to pay Buyer the Uncollected
\n ——–
\nReceivables Amount only to the extent that the aggregate amount of Buyer
\nIndemnifiable Losses as of the date of payment exceeds the General Basket
\nAmount; and provided, further, that concurrently with the payment by Seller of
\n ——– ——-
\nsuch amount, Buyer shall reassign to Seller all such uncollected Closing Date
\nReceivables.<\/p>\n
(d) If, after the Closing Date, Seller shall receive any remittance from
\nany account debtors with respect to the Closing Date Receivables (excluding any
\nClosing Date Receivable reassigned to Seller), Seller shall endorse such
\nremittance to the order of Buyer and forward it to Buyer promptly following
\nreceipt thereof, and any such amounts shall be deemed to have been collected by
\nBuyer for purposes of this Section 5.19.
\n ———— <\/p>\n
(e) If Buyer shall receive any remittance from or on behalf of any account
\ndebtor with respect to any Closing Date Receivable after such Closing Date
\nReceivable has been reassigned to Seller, Buyer shall endorse such remittance to
\nthe order of Seller and forward it to Seller promptly following receipt thereof.<\/p>\n
Section 5.20 Registration of the Maytag Shares. Buyer shall:
\n ———————————<\/p>\n
(a) Prepare and file with the SEC a registration statement on Form S-3 (or
\nany successor form) (the “Registration Statement”) covering the resale by the
\n ———————-
\nShareholders, from time to time, of the Maytag Shares and use all reasonable
\nefforts to have the Registration Statement declared effective under the
\nSecurities Act as soon as practicable after the Closing Date;<\/p>\n
-63-<\/p>\n
(b) Prepare and file with the SEC such amendments and supplements to the
\nRegistration Statement and the prospectus used in connection therewith (the
\n“Prospectus”) as may be necessary to keep the Registration Statement effective
\n ———-
\nuntil the earlier of (i) the first anniversary of the Closing Date or (ii) the
\ndate on which all of the Maytag Shares have been sold under the Registration
\nStatement;<\/p>\n
(c) Furnish to the Shareholders with respect to the Maytag Shares
\nregistered under the Registration Statement such reasonable number of copies of
\nProspectuses, including any supplements and amendments thereto, promptly
\nfollowing the effectiveness of such Registration Statement in order to
\nfacilitate the sale of Maytag Shares under the Registration Statement;<\/p>\n
(d) Immediately notify each Shareholder of the issuance by the SEC of any
\nstop order suspending the effectiveness of the Registration Statement or the
\ninitiation of any proceedings for such purpose;<\/p>\n
(e) Make every reasonable effort to obtain the withdrawal of any order
\nsuspending the effectiveness of the Registration Statement at the earliest
\npossible moment;<\/p>\n
(f) As soon as practicable, notify each Shareholder of the existence of
\nany fact which results in the Registration Statement, any amendment or post-
\neffective amendment thereto, the Prospectus, any prospectus supplement, or any
\ndocument incorporated therein by reference containing an untrue statement of a
\nmaterial fact or omitting to state a material fact required to be stated therein
\nor necessary to make the statements therein not misleading and shall (except
\nduring a Black-out Period) prepare a supplement or post-effective amendment to
\nsuch Registration Statement or the Prospectus or any document incorporated
\ntherein by reference or file any other required document so that, as thereafter
\ndelivered to the purchasers of the Maytag Shares, the Prospectus will not
\ncontain an untrue statement of a material fact or omit to state any material
\nfact necessary to make the statements therein not misleading; provided that this
\nclause (f) shall in no way limit Buyer’s right to suspend the right of the
\nShareholders to effect sales under the Registration Statement during any Black-
\nout Period as specified in Section 5.21(b); and<\/p>\n
(g) Bear all reasonable out-of-pocket expenses in connection with the
\nprocedures in paragraphs (a) through (f) of this Section 5.20 and the
\n ————
\nregistration of the Maytag Shares pursuant to the Registration Statement, other
\nthan brokerage fees and commissions incurred by the Shareholders, if any.<\/p>\n
SECTION 5.21 Resales by Shareholders.
\n ———————–<\/p>\n
(a) Seller agrees, and will cause each Permitted Transferee to agree, that
\nit will comply with the requirement under the Securities Act of delivering a
\ncurrent Prospectus in connection with any sale of Maytag Shares made under the
\nRegistration Statement.<\/p>\n
(b) Seller acknowledges, and will cause each Permitted Transferee to
\nacknowledge, that there may occasionally be times when Buyer must suspend the
\nright of the Shareholders to effect sales of the Maytag Shares through use of
\nthe Prospectus forming a part of the Registration Statement until such time as
\nan amendment to the Registration Statement has been filed by Buyer and declared
\neffective by the SEC, or until such time as Buyer has filed an appropriate<\/p>\n
-64-<\/p>\n
report with the SEC pursuant to the Exchange Act (each, a “Black-out Period”);
\n —————-
\nprovided Buyer agrees that it will not declare a Black-out Period during the
\n——–
\nfirst ten business days after the Closing Date and provided, further, that any
\n ——– ——-
\nsuch Black-out Period shall not exceed 60 days. Seller hereby covenants, and
\nwill cause each Permitted Transferee to covenant, that it will not sell any
\nMaytag Shares pursuant to the Prospectus during the period commencing at the
\ntime at which Buyer gives such Shareholder notice of the beginning of a Black-
\nout Period and ending at the time Buyer gives such Shareholder notice that it
\nmay thereafter effect sales pursuant to the Prospectus.<\/p>\n
(c) Following the first ten business days after the Closing Date, Seller
\nshall notify, and shall cause each Permitted Transferee to notify, Buyer at
\nleast two business days prior to the date on which it intends to commence
\neffecting any resales of Maytag Shares under a Registration Statement and if
\nBuyer does not, within such two day period, advise such Shareholder of the
\nexistence of any facts of the type referred to in Section 5.20(f) above, then
\n —————
\nBuyer shall be deemed to have represented to such Shareholder that no such facts
\nthen exist and such Shareholders may rely on such representation in making such
\nsales.<\/p>\n
(d) Seller will furnish, and shall cause each Permitted Transferee to
\nfurnish, to Buyer such information regarding it and its proposed plan of
\ndistribution as shall be requested by Buyer in connection with the preparation
\nof the Registration Statement and will promptly notify Buyer of any changes in
\nsuch information.<\/p>\n
(e) Buyer and Seller hereby agree, and Seller shall cause each Permitted
\nTransferee to agree, from and after the Closing to indemnify one another with
\nrespect to the resale of Maytag Shares pursuant to the provisions set forth in
\nExhibit B.
\n——— <\/p>\n
(f) Seller will notify, and shall cause each Permitted Transferee to
\nnotify, Buyer when all of the Maytag Shares have been sold pursuant to the
\nRegistration Statement.<\/p>\n
ARTICLE VI
\n CLOSING
\n ——-<\/p>\n
Section 6.1 Time and Place of Closing.
\n ————————-<\/p>\n
The Closing (the “Closing”) of the transactions contemplated by this
\n ——-
\nAgreement will be held on the last business day of the month in which the latter
\nof the following two events occurs: (i) the termination of the waiting periods
\nunder the HSR Act, or (ii) the fulfillment or waiver of the conditions set forth
\nin Sections 6.2 and 6.3, at such time and place as the parties shall agree, or
\n ———— —
\non such other date, and at such time and place, as the parties may agree. It is
\nunderstood that the Closing shall be deemed to take place effective as of the
\nclose of business local time at the place of the Closing, regardless of the time
\nat which the Closing actually occurs on the Closing Date.<\/p>\n
Section 6.2 Conditions to Buyer’s and Maytag Worldwide’s Obligations.
\n ——————————————————–<\/p>\n
The obligations of Buyer and Maytag Worldwide to complete the Closing are
\ncontingent upon the fulfillment of each of the following conditions on or before
\nthe Closing Date, except to <\/p>\n
-65-<\/p>\n
the extent that Buyer may, in its absolute discretion and to the extent legally
\npermissible, waive any one or more thereof in whole or in part:<\/p>\n
(a) Representations, Warranties and Covenants of Seller and Global. The
\n ————————————————————–
\nrepresentations and warranties of Seller and Global in this Agreement shall be
\ntrue and correct in all material respects on and as of the Closing Date with the
\nsame effect as though such representations and warranties had been made on and
\nas of such date except for representations and warranties that speak as of a
\nspecific date or time other than the Closing Date (which need only be true and
\ncorrect in all material respects as of such date or time), and the covenants and
\nagreements of Seller and Global to be performed on or before the Closing Date in
\naccordance with this Agreement shall have been duly performed in all material
\nrespects.<\/p>\n
(b) No Changes or Destruction of Property. Between the date hereof and the
\n ————————————-
\nClosing Date, there shall have been (a) no Material Adverse Effect; and (b) no
\nmaterial damage to the Purchased Assets by fire, flood, casualty, act of God or
\nthe public enemy or other cause, regardless of insurance coverage for such
\ndamage.<\/p>\n
(c) Filings; Consents; Waiting Periods. All registrations, filings,
\n ———————————-
\napplications, notices, covenants, consents, approvals, waivers, authorizations,
\nqualifications and orders required by this Agreement to be filed, made or
\nobtained by Seller with any governmental bodies shall have been filed, made or
\nobtained and copies thereof shall have been delivered to Buyer, and all waiting
\nperiods applicable under the HSR Act shall have expired or been terminated.<\/p>\n
(d) No Injunction. At the Closing Date, there shall be no injunction,
\n ————-
\nrestraining order or decree of any nature of any court or governmental agency or
\nbody of competent jurisdiction that is in effect that restrains or prohibits the
\nconsummation of the transactions contemplated hereunder or imposes conditions on
\nsuch consummation not otherwise provided for herein.<\/p>\n
(e) Absence of Litigation. (i) No claim, action, suit, arbitration,
\n ———————
\ninvestigation, inquiry or other proceeding by any United States federal or state
\ngovernmental, regulatory or administrative agency or authority or any other
\nperson shall be pending on the Closing Date; and (ii) prior to the Closing Date,
\nno party to this Agreement shall have been advised by any United States federal
\nor state governmental, regulatory or administrative agency or authority (which
\nadvisory has not been officially withdrawn by such agency or authority on or
\nprior to the Closing Date) that such agency or authority is investigating the
\ntransactions contemplated by this Agreement to determine whether to file or
\ncommence any litigation, which, in the case of (i) or (ii) above, seeks or would
\nseek to enjoin, restrain or prohibit the consummation of the transactions
\ncontemplated by this Agreement or to impose limitations on the ability of Buyer
\nto continue the Business as presently conducted with the Purchased Assets or to
\nrequire the divestiture by Buyer of any of the Purchased Assets or any assets of
\nBuyer or any of its Affiliates.<\/p>\n
(f) Necessary Consents. Seller shall have received consents, in form and
\n ——————
\nsubstance reasonably satisfactory to Buyer, to the transactions contemplated
\nhereby from the other parties to all Contracts, Leases, and Permits to which
\nSeller or Former Owner is a party or by which Seller or Former Owner or any of
\nthe Purchased Assets is affected and which are specified in Schedule 6.2(f).
\n ————— <\/p>\n
-66-<\/p>\n
(g) Deliveries by Seller and\/or Global. Seller and\/or Global shall have
\n ———————————-
\ndelivered or shall have caused to be delivered to Buyer:<\/p>\n
(i) true and correct copies of (x) the partnership formation
\n agreements of Seller, certified as of the Closing Date by the Secretary or
\n any Assistant Secretary of Holding, (y) the charter documents of Global,
\n certified by the Secretary of State of the State of Texas as of a date
\n within five (5) business days preceding the Closing Date and (z) the bylaws
\n of Global, certified as of the Closing Date by the Secretary or any
\n Assistant Secretary of Global;<\/p>\n
(ii) good standing certificates relating to Seller from the states
\n of Texas and all other states in which the Real Property or material Leased
\n Property is located;<\/p>\n
(iii) resolutions of the Board of Directors of Holding, as the sole
\n general partner of Seller, authorizing the execution and delivery of this
\n Agreement on behalf of Seller and the performance of the transactions
\n contemplated hereby, certified by the Secretary or an Assistant Secretary
\n of Holding;<\/p>\n
(iv) resolutions of the Board of Directors of Global, authorizing
\n the execution and delivery of this Agreement and the performance of the
\n transactions contemplated hereby, certified by the Secretary or an
\n Assistant Secretary of Global;<\/p>\n
(v) a Secretary’s Certificate attesting to the incumbency of the
\n officers of Holding executing this Agreement and the other certificates and
\n agreements delivered at the Closing on behalf of Seller;<\/p>\n
(vi) a Secretary’s Certificate attesting to the incumbency of the
\n officers of Global executing this Agreement and the other certificates and
\n agreements delivered at the Closing;<\/p>\n
(vii) an Officer’s Certificate from Holding, on behalf of Seller,
\n attesting to the matters set forth in Sections 6.2(a) and (b);
\n ————— — <\/p>\n
(viii) an Officer’s Certificate from Global attesting to the matters
\n set forth in Sections 6.2(a) and (b);
\n ————— — <\/p>\n
(ix) limited warranty deeds sufficient to transfer and convey title
\n to the Real Property consistent with Section 2.10 and the representations
\n ————
\n and warranties regarding the Real Property set forth herein;<\/p>\n
(x) such other assignments, bills of sale, certificates of title
\n and instruments of transfer, all in form reasonably satisfactory to Buyer,
\n as are necessary to convey fully and effectively to Buyer and Maytag
\n Worldwide the Business and the Purchased Assets in accordance with the
\n terms hereof;<\/p>\n
(xi) an affidavit executed on behalf of Seller, in form reasonably
\n satisfactory to Buyer, to evidence that Buyer will not be required to
\n withhold any tax and that no withholding liability exists as of the Closing
\n under Section 1445 of the Code (and the <\/p>\n
-67-<\/p>\n
implementing regulations), which affidavit shall state that Seller is not a
\n foreign corporation, foreign partnership, foreign trust, or foreign estate
\n (as those terms are defined in the Code), Seller’s employer identification
\n number, and Seller’s office address, plus such other statements as Buyer
\n shall reasonably request;<\/p>\n
(xii) the Title Policies in the form required hereby (including all
\n endorsements and coverages provided for herein), and any documents or
\n instruments required by the Title Company to issue the Title Policies;<\/p>\n
(xiii) such customary affidavits and agreements as are required by the
\n Title Company in connection with the deletion of the standard exceptions
\n from the Title Policies;<\/p>\n
(xiv) a counterpart of the AsureCare Agreement, duly executed by
\n Global;<\/p>\n
(xv) a counterpart of the Interim Services Agreement, duly executed
\n by Global;<\/p>\n
(xvi) a counterpart of the Trademark License Agreement, duly executed
\n by Global; and<\/p>\n
(xvii) such other and further certificates, assurances and documents
\n as may reasonably be required by Buyer in connection with the consummation
\n of the transactions contemplated hereby.<\/p>\n
Section 6.3 Conditions to Seller’s Obligations.
\n ———————————-
\n The obligations of Seller to complete the Closing are contingent upon the
\nfulfillment of each of the following conditions on or before the Closing Date,
\nexcept to the extent that Seller may, in its absolute discretion and to the
\nextent legally permissible, waive any one or more thereof in whole or in part:<\/p>\n
(a) Representations, Warranties and Covenants of Buyer. The
\n ————————————————–
\nrepresentations and warranties of Buyer in this Agreement shall be true and
\ncorrect in all material respects on and as of the Closing Date with the same
\neffect as though such representations and warranties had been made on and as of
\nsuch date except for representations and warranties that speak as of a specific
\ndate or time other than the Closing Date (which need only be true and correct in
\nall material respects as of such date or time), and the covenants and agreements
\nof Buyer and Maytag Worldwide to be performed on or before the Closing Date in
\naccordance with this Agreement shall have been duly performed in all material
\nrespects.<\/p>\n
(b) Filings; Consents; Waiting Periods. All registrations, filings,
\n ———————————-
\napplications, notices, covenants, approvals, waivers, authorizations,
\nqualifications and orders required by this Agreement to be filed, made or
\nobtained by Buyer with any governmental bodies shall have been filed, made or
\nobtained and copies thereof shall have been delivered to Seller, and all waiting
\nperiods applicable under the HSR Act shall have expired or been terminated.<\/p>\n
-68-<\/p>\n
(c) No Injunction. At the Closing Date, there shall be no injunction,
\n ————-
\nrestraining order or decree of any nature of any court or governmental agency or
\nbody of competent jurisdiction that is in effect that restrains or prohibits the
\nconsummation of the transactions contemplated hereunder or imposes conditions on
\nsuch consummation not otherwise provided for herein.<\/p>\n
(d) Effectiveness of Registration Statement. The SEC shall have informed
\n —————————————
\nSeller of its willingness to declare the Registration Statement effective.<\/p>\n
(e) Listing of Maytag Shares. The Maytag Shares shall have been listed or
\n ————————
\nauthorized for listing on the New York Stock Exchange, subject to official
\nnotice of issuance.<\/p>\n
(f) Deliveries by Buyer. Buyer shall have delivered or shall have caused
\n ——————-
\nto be delivered to Seller:<\/p>\n
(i) true and correct copies of the charter documents of Buyer,
\n certified by the Secretary of State of the State of Delaware as of a date
\n within five (5) business days preceding the Closing Date, and true and
\n correct copies of the bylaws of Buyer, certified as of the Closing Date by
\n the Secretary or any Assistant Secretary of Buyer, respectively;<\/p>\n
(ii) good standing certificate relating to Buyer from the State of
\n Delaware;<\/p>\n
(iii) resolutions of the Board of Directors of Buyer authorizing the
\n execution and delivery of this Agreement and the performance of the
\n transactions contemplated hereby, certified by the Secretary or any
\n Assistant Secretary of Buyer;<\/p>\n
(iv) a Secretary’s Certificate attesting to the incumbency of the
\n officers of Buyer executing this Agreement and the other certificates and
\n agreements delivered by Buyer at the Closing;<\/p>\n
(v) an Officer’s Certificate from Buyer attesting to the matters
\n set forth in Section 6.3(a);
\n ————– <\/p>\n
(vi) instruments executed by Buyer, in form and substance reasonably
\n satisfactory to Seller, pursuant to which Buyer assumes the Assumed
\n Liabilities;<\/p>\n
(vii) immediately available funds in the amount contemplated by
\n Section 2.5 to be delivered at Closing;
\n ———– <\/p>\n
(viii) one or more certificates representing the Maytag Shares,
\n registered in the name of Seller;<\/p>\n
(ix) validly executed sales\/use tax exemption\/resale certificates
\n for the Inventory;<\/p>\n
(x) a counterpart of the AsureCare Agreement, duly executed by
\n Buyer;<\/p>\n
(xi) a counterpart of the Interim Services Agreement, duly executed
\n by Buyer;<\/p>\n
-69-<\/p>\n
(xii) a counterpart of the Trademark License Agreement, duly executed
\n by Buyer; and<\/p>\n
(xiii) such other and further certificates, assurances and documents
\n as may reasonably be required by Seller in connection with the consummation
\n of the transactions contemplated hereby.<\/p>\n
ARTICLE VII
\n SURVIVAL; INDEMNIFICATION
\n ————————-<\/p>\n
Section 7.1 Survival.
\n ——–
\n Subject to the limitations and other provisions of this Agreement, the
\nrepresentations and warranties of the parties hereto contained herein shall
\nsurvive the Closing and shall remain in full force and effect for a period of
\ntwelve (12) months after the Closing Date, and the covenants and agreements
\nshall survive the Closing and shall remain in full force and effect until fully
\nperformed; provided, however, (a) the representations and warranties set forth
\n ——– ——-
\nin Section 3.3 shall expire on the sixth anniversary of the Closing Date; and
\n ———–
\n(b) the representations and warranties set forth in Section 3.1(a), Section
\n ————– ——-
\n3.1(c), Section 3.1(d), Section 3.1(e), Section 3.4(a), Section 3.4(d), Section
\n—— ————– ————– ————– ————– ——-
\n3.13 and Section 4.1 shall survive for the maximum period allowed by law; and
\n—- ———–
\n(c) the covenants contained in Section 5.12 shall survive for the Access Period.
\n ———— <\/p>\n
Section 7.2 Indemnification.
\n —————
\n (a) Indemnification by Seller Group. Seller Group hereby agrees to
\n ——————————-
\nindemnify and hold Buyer, Buyer’s Affiliates (including Maytag Worldwide) and
\ntheir respective officers, directors and employees (collectively, “Buyer
\n —–
\nIndemnified Parties”) harmless from any and all Indemnifiable Damages which any
\n——————-
\nsuch person or entity may suffer or incur by reason of:<\/p>\n
(i) the breach of any of the covenants or agreements made by Seller
\n or Global in this Agreement or any of the other agreements or certificates
\n delivered by Seller or Global pursuant hereto;<\/p>\n
(ii) from and after the Closing,<\/p>\n
(A) the breach or inaccuracy of any of the representations and
\n warranties of Seller and Global contained in this Agreement (other than
\n Section 3.3, which is governed by Section 7.3) or any of the other
\n ———– ———–
\n agreements or certificates delivered by Seller or Global pursuant hereto;<\/p>\n
(B) any failure of Seller or Global to obtain prior to the
\n Closing any consent set forth in Schedule 6.2(f) or any consent related to
\n —————
\n the Bifurcation Agreement;<\/p>\n
(C) the failure of Seller or Global to comply with any
\n applicable bulk sales law, except that this clause shall not affect the
\n obligation of Buyer to pay and discharge the Assumed Liabilities;<\/p>\n
-70-<\/p>\n
(D) any Excluded Liabilities; and<\/p>\n
(E) any Product Liability Claims or Product Warranty Claims
\n otherwise covered by Section 7.2(b)(ii)(E) and (F) and for which there has
\n —————————–
\n been a Third Party Claim made or Claim Notice given within eighteen (18)
\n months after the Closing Date, but only to the extent that the total amount
\n of Indemnifiable Damages resulting therefrom exceeds (1) the amount
\n reserved therefor on the Closing Date Pro Forma Balance Sheet plus (2) the
\n —-
\n Product Basket Amount.<\/p>\n
For purposes of determining whether any Buyer Indemnified Party is entitled to
\nindemnification under this Section 7.2(a) or Section 7.3, the parties shall
\n ————– ———–
\nignore (i) any requirement in any representation or warranty contained herein
\nthat an event or fact be material, have a Material Adverse Effect or otherwise
\nhave a material adverse effect on Seller or the Business, taken as a whole, and
\n(ii) any other reference to materiality contained in any such representation or
\nwarranty.<\/p>\n
(b) Indemnification by Buyer. Buyer hereby agrees to indemnify and hold
\n ————————
\nSeller, Holding, Global and their respective general partners, limited partners,
\nshareholders, officers, directors and employees, as the case may be
\n(collectively, “Seller Indemnified Parties”), harmless from any and all
\n ————————–
\nIndemnifiable Damages which any such person or entity may suffer or incur by
\nreason of:<\/p>\n
(i) the breach of any of the covenants or agreements made by Buyer or
\n Maytag Worldwide in this Agreement or any of the other agreements or
\n certificates delivered by Buyer pursuant hereto; and<\/p>\n
(ii) from and after the Closing,<\/p>\n
(A) the breach or inaccuracy of any of the representations or
\n warranties of Buyer contained in this Agreement or any of the other
\n agreements or certificates delivered by Buyer or Maytag Worldwide pursuant
\n hereto,<\/p>\n
(B) any Assumed Liabilities, or<\/p>\n
(C) the operation of the Business after the Closing Date,
\n including any Product Liability Claims or Product Warranty Claims relating
\n to products of the Business that are manufactured or purchased by Buyer
\n after the Closing Date (it being understood that this clause (C) shall not
\n limit Seller Group’s obligations under Section 7.2(a) and 7.3(a) and in the
\n ————– ——
\n event of any conflict between this clause (C) and Sections 7.2(a) and
\n —————
\n 7.3(a), Sections 7.2(a) and 7.3(a) shall control);
\n —— ————— ——<\/p>\n
(D) any Worker’s Compensation Claims;<\/p>\n
(E) except as provided in Section 7.2(a)(ii)(E), any Product
\n ———————
\n Liability Claims relating to products of the Business that were
\n manufactured or purchased by Seller or its predecessors on or prior to the
\n Closing Date, other than Product Liability Claims relating to products
\n manufactured at any facility previously operated by Former <\/p>\n
-71-<\/p>\n
Owner or any of its Affiliates or predecessors and that is not included in
\n the Purchased Assets; and<\/p>\n
(F) except as provided in Section 7.2(a)(ii)(E), any Product
\n ———————
\n Warranty Claims relating to products of the Business that were manufactured
\n or purchased by Seller or its predecessors on or prior to the Closing Date.<\/p>\n
(c) Third-Party Claims. (i) If any claim or demand is asserted against an
\n ——————
\nindemnified party by a third party with respect to any matter under the
\nindemnities set forth in Sections 7.2(a) or 7.2(b) (a “Third Party Claim”), the
\n ————— —— —————–
\nindemnified party shall promptly give written notice and details thereof (the
\n“Claim Notice”), including copies of all pleadings and the pertinent documents,
\n ————
\nto the indemnifying party or parties, as the case may be (“Indemnitor”).
\n ———- <\/p>\n
(ii) If any Third Party Claim is solely for money damages or, where
\n the Seller Group is the Indemnitor, will have no continuing effect in any
\n material respect on the Business or the Purchased Assets, then the
\n Indemnitor shall have the right, exercisable upon written notice given
\n within twenty (20) days after receipt of the Claim Notice, to conduct and
\n control, through counsel of its choosing, the defense, compromise or
\n settlement of any such Third Party Claim as to which indemnification will
\n be sought by any indemnified party from any Indemnitor hereunder if the
\n Indemnitor has acknowledged and agreed in writing that, if the same is
\n adversely determined, the Indemnitor has an obligation to provide
\n indemnification to the indemnified party in respect thereof, and in any
\n such case the indemnifie d party shall cooperate in connection therewith
\n and shall furnish such records, information and testimony and attend such
\n conferences, discovery proceedings, hearings, trials and appeals as may be
\n reasonably requested by the Indemnitor in connection therewith; provided,
\n ——–
\n that the indemnified party shall have the right to participate in such
\n defense at its own expense. Notwithstanding the foregoing, the indemnified
\n party shall have the right to pay, settle or compromise any such Third
\n Party Claim, provided that in such event the indemnified party shall waive
\n ——–
\n any right to indemnity therefor hereunder.<\/p>\n
(iii) If the Indemnitor does not assume control of the defense of a
\n Third Party Claim pursuant to clause (ii) above, then the indemnified party
\n shall have the right to pay, compromise or defend any Third Party Claim and
\n to assert the amount of any payment on the Third Party Claim plus the
\n expense of defense or settlement as an indemnity claim; provided, however,
\n ——– ——-
\n that the indemnified party shall not compromise or settle any such Third
\n Party Claim without the prior written consent of the Indemnitor (which
\n shall not be unreasonably withheld). The indemnified party shall also have
\n the right, exercisable in good faith, to take such action as may be
\n necessary to avoid a default prior to the assumption of the defense of any
\n Third Party Claim by the Indemnitor and any expenses incurred by so acting
\n shall be paid by the Indemnitor; provided that such Third Party Claim is a
\n ——–
\n proper claim for indemnification hereunder.<\/p>\n
(d) Payment. Payment of Third Party Claims shall be made in accordance
\n ——-
\nwith Section 7.2(c). With respect to all claims other than Third Party Claims,
\n ————–
\nthe Indemnitor shall promptly pay or reimburse the indemnified party in respect
\nof any claim or liability for Indemnifiable Damages to which the foregoing
\nindemnities relate after receipt of written notice<\/p>\n
-72-<\/p>\n
from the indemnified party outlining with reasonable particularity the nature
\nand amount of the claim(s). All claims for indemnity hereunder must be submitted
\nby the indemnified party to the Indemnitor within the applicable time periods
\nset forth in this Section 7.2. In the event the Indemnitor fails or refuses to
\n ———–
\nmake payment for such claims within a period of twenty (20) days from the date
\nof notice to the Indemnitor, the indemnified party shall be entitled to exercise
\nall legal means of relief available.<\/p>\n
(e) Access and Information. With respect to any claim for indemnification
\n ———————-
\nhereunder, the indemnified party will give to the Indemnitor and its counsel,
\naccountants and other representatives full and free access, during normal
\nbusiness hours and upon the giving of reasonable prior notice, to its books and
\nrecords relating to such claims, and to its employees, accountants, counsel and
\nother representatives, all without charge to the Indemnitor, except for
\nreimbursement of reasonable out-of-pocket expenses. If a claim for
\nindemnification is made hereunder, the indemnified party agrees to maintain any
\nof its books and records then in its possession which may relate to such claim
\nfor such period of time as may be necessary to enable the Indemnitor to resolve
\nsuch claim.<\/p>\n
(f) Monetary Limitations on Indemnification.
\n ————————————— <\/p>\n
(i) Seller Group shall not be obligated hereunder to indemnify any
\n Buyer Indemnified Parties with respect to any Indemnifiable Damages as to
\n which such persons are otherwise entitled to indemnification under this
\n Agreement based on a breach of a representation or warranty (including
\n indemnification under Section 7.3(a)(i) but excluding indemnification based
\n —————–
\n on Section 3.13) unless and until the aggregate amount of Buyer
\n ————
\n Indemnifiable Losses exceeds the General Basket Amount, and thereafter
\n Buyer Indemnified Parties shall be entitled to indemnity hereunder only
\n with respect to any such amounts in excess of the General Basket Amount.<\/p>\n
(ii) Notwithstanding anything in this Agreement to the contrary, the
\n maximum aggregate obligation of Seller Group pursuant to Section
\n ——-
\n 7.2(a)(ii)(A) and Section 7.2(a)(ii)(E) shall not exceed Fifty Million
\n ————- ———————
\n Dollars ($50,000,000.00); provided that such limitation shall not apply to
\n ——–
\n the representations set forth in Section 3.13.
\n ————<\/p>\n
(iii) The liability of either Seller Group or Buyer under this
\n Section 7.2 shall be offset dollar for dollar by any recovery actually
\n ———–
\n made by the Buyer Indemnified Parties or Seller Indemnified Parties, as the
\n case may be, from any third party (including insurers) on account of the
\n item of Indemnifiable Damages involved (and no right of subrogation shall
\n accrue to any such third party) and (ii) shall be net of any Tax benefit
\n inuring to the indemnified party therefrom (after giving effect to the Tax
\n effect (using an assumed Tax rate of 35% for each of the parties hereto) of
\n the receipt of the indemnification payment). The parties hereto agree to
\n pursue diligently and in good faith any recovery from any such third party
\n with respect to any item of Indemnifiable Damages involved, but payments
\n for Indemnifiable Damages shall not be postponed pending any such receipts
\n or recoveries. Any such receipts or recoveries received by an indemnified
\n party after a payment for Indemnifiable Damages shall be promptly paid over
\n to the Indemnitor.<\/p>\n
(g) Other Limitations on Indemnification.
\n ———————————— <\/p>\n
-73-<\/p>\n
(i) IN NO EVENT SHALL SELLER GROUP BE LIABLE TO THE BUYER INDEMNIFIED
\n PARTIES FOR PUNITIVE, SPECIAL EXEMPLARY AND CONSEQUENTIAL DAMAGES AND IN NO
\n EVENT SHALL BUYER GROUP BE LIABLE TO THE SELLER INDEMNIFIED PARTIES FOR
\n PUNITIVE, SPECIAL EXEMPLARY AND CONSEQUENTIAL DAMAGES, PROVIDED, THAT THESE
\n LIMITATIONS SHALL NOT APPLY TO (I) PUNITIVE, SPECIAL EXEMPLARY DAMAGES AND
\n CONSEQUENTIAL PAYABLE TO A THIRD PARTY PURSUANT TO A THIRD PARTY CLAIM OR
\n (II) CONSEQUENTIAL DAMAGES DIRECTLY RESULTING FROM A SPECIFIC BREACH OF A
\n PARTY’S REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS HEREUNDER.<\/p>\n
(ii) Anything in this Agreement to the contrary notwithstanding, no
\n claim may be asserted nor any action commenced against Seller Group for
\n breach of any representation, warranty, covenant or agreement contained
\n herein, unless written notice of such claim or action is received by
\n Seller, describing in reasonable detail the facts and circumstances with
\n respect to the subject matter of such claim or action on or prior to the
\n date on which the representation, warranty, covenant or agreement on which
\n such claim or action is based ceases to survive as set forth in this
\n Agreement irrespective of whether the subject matter of such claim or
\n action shall have occurred before or after such date. Indemnification shall
\n continue hereunder with respect to any matter of which a party has notified
\n the other parties in accordance with the requirements of this Section 7.2
\n ———–
\n on or prior to the date such indemnification would otherwise terminate in
\n accordance with this Section 7.2(a), as to which the obligation of such
\n ————–
\n other party shall continue until the liability of such party shall have
\n been determined pursuant to this Article VII, and the Indemnitor shall have
\n reimbursed all indemnified parties for the full amount of such
\n Indemnifiable Damages in accordance with this Article VII.
\n ———– <\/p>\n
SECTION 7.3 Environmental Indemnification.
\n —————————–<\/p>\n
Notwithstanding any other provision of this Agreement, including the
\ngeneral indemnity provisions and limitations set forth elsewhere in this Article
\n ——-
\nVII, this Section 7.3 sets forth the sole and exclusive indemnities by the
\n— ———–
\nSeller Group with respect to Environmental Matters arising from or related to
\nthe Purchased Assets or the Business.<\/p>\n
(a) Seller Group agrees to indemnify, defend and hold harmless the Buyer
\nIndemnified Parties against any and all Indemnifiable Damages arising out
\nof, related to or in connection with:<\/p>\n
(i) the breach or inaccuracy of any of the representations and
\n warranties of Seller and Global set forth in Section 3.3;
\n ———– <\/p>\n
(ii) subject to Section 7.3(d), any Undisclosed Claim of
\n ————–
\n Environmental Liability; and<\/p>\n
(iii) subject to Section 7.3(d), any Environmental Exposure Claim.
\n ————–
\n (b) For Environmental Matters covered by the Seller Group indemnity under
\nSection 7.3(a) that arise out of Third Party Claims solely for money damages,
\n————–
\nthe provisions of Section
\n ——-<\/p>\n
-74-<\/p>\n
7.2(c) shall apply. For all other Environmental Matters covered by the Seller
\n——
\nGroup indemnity under Section 7.3(a), Buyer shall have the right to conduct and
\n ————–
\ncontrol, through counsel, consultant or contractor of its choosing (which shall
\nbe reasonably acceptable to Seller) any Claim of Environmental Liability. Buyer
\nshall provide notice to the Seller Group of any such Environmental Matter and
\nagrees to reasonably consult with the Seller Group regarding the scope of any
\nremedial or other corrective action, and to provide the Seller Group, whenever
\npracticable, with drafts of proposed submissions to relevant governmental
\nauthorities for comment prior to any final submission. The parties agree that
\nany remedial or corrective action so controlled by Buyer shall employ measures
\nthat are cost effective and designed to satisfy, rather than exceed,
\nrequirements of applicable Environmental Law as appropriate. Subject to Section
\n ——-
\n7.2(f), the Seller Group shall promptly reimburse Buyer for Indemnifiable
\n——
\nDamages incurred pursuant to this Section 7.3(b) upon submission by Buyer of
\n ————–
\ndocumentation verifying its costs.<\/p>\n
(c) The Seller Group’s indemnity obligations under Section 7.3(i) shall
\n ————–
\nsurvive until the sixth (6\/th\/) anniversary of the Closing Date and the Seller
\nGroup’s indemnity obligations under Section 7.3(a)(ii) and (iii) shall survive
\n —————————-
\nuntil the eighth (8\/th\/) anniversary of the Closing Date; provided that, the
\n ————-
\nSeller Group’s obligation shall continue for any Environmental Matter for which
\nBuyer has provided notice on or prior to the applicable anniversary date, until
\nsuch time that the Seller Group shall have reimbursed Buyer for the full amount
\nof Indemnifiable Damages for such Environmental Matter in accordance with this
\nSection 7.3. Notwithstanding anything in this Agreement to the contrary, the
\n———–
\nmaximum aggregate obligation of Seller under Section 7.3(a) shall not exceed
\n ————–
\nthe amount by which (i) one-half of the Purchase Price exceeds (ii) the
\naggregate amount paid by Seller Group pursuant to Section 7.2(a)(ii)(A).
\n ——————— <\/p>\n
(d) To the extent any Indemnifiable Damages arising out of, or in
\nconnection with, any Undisclosed Claim of Environmental Liability or any
\nEnvironmental Exposure Claim made or asserted during the Environmental Claims
\nPeriod, Buyer and Seller Group shall contribute and share in each item of
\nIndemnifiable Damages as follows:<\/p>\n
Period During Which a Claim
\n for Indemnification is Made Relative Obligations<\/p>\n
Beginning with the Closing Date Seller Group shall bear ninety
\n through the day immediately preceding percent (90%) and Buyer shall
\n the second anniversary of the bear ten percent (10%) of each
\n Closing Date item of Indemnifiable Damages<\/p>\n
Beginning with the second anniversary Seller Group shall bear
\n of the Closing Date through the day seventy-five percent (75%) and
\n immediately preceding the fifth Buyer shall bear twenty-five
\n anniversary of the Closing Date percent (25%) of each item of
\n Indemnifiable Damages<\/p>\n
Beginning with the fifth anniversary Seller Group shall bear fifty
\n of the Closing Date through the day percent (50%) and Buyer shall<\/p>\n
-75-<\/p>\n
immediately preceding the eighth bear fifty percent (50%) of each
\n anniversary of the Closing Date item of Indemnifiable Damages<\/p>\n
(e) The relative obligations set forth in Section 7.3(a)(ii) and (iii)
\n —————————-
\nshall be fixed by reference to the dates that claims for indemnification are
\nmade or asserted against the indemnifying party and shall not be subject to
\nchange thereafter. Seller Group’s indemnification obligations with respect to
\nUndisclosed Claims of Environmental Liability which involve remediation,
\nrectification or clean-up of any Environmental Matter shall be limited to those
\nIndemnifiable Damages which may be reasonably incurred to bring such
\nEnvironmental Matter into substantial compliance with the remediation levels or
\nperformance standards imposed under Environmental Laws as in effect at the time
\nthe remediation is commenced.<\/p>\n
Section 7.4 Arbitration.
\n ———–<\/p>\n
Except for disputes resolved under Section 2.6 of this Agreement, all
\n ———–
\ncontroversies and claims arising out of or relating to this Agreement or the
\nbreach thereof shall be settled exclusively by arbitration in accordance with
\nthe Commercial Rules of the American Arbitration Association (“AAA”),
\n —
\nincorporated herein by reference, by a single neutral arbitrator to be chosen in
\naccordance with the procedures of the AAA. The arbitration proceeding shall be
\nconducted in Chicago, Illinois. The parties acknowledge that this Agreement
\nevidences a transaction involving interstate commerce and the arbitration shall
\nbe governed by the United States Arbitration Act, 9 U.S.C. (S)(S) 1-16 (1999),
\nand shall be conducted irrespective of and shall supersede, as among the parties
\nhereto, any finding of liability or apportionment of damages resulting from the
\njudicial resolution of any Third Party Claim involving Undisclosed Claims of
\nEnvironmental Liability or Environmental Exposure Claims. The arbitrator shall
\nhave the authority to award any remedy or relief that a court of competent
\njurisdiction could order or grant, including the issuance of an injunction.
\nJudgment upon the award rendered by the arbitrators may be entered by any court
\nhaving jurisdiction thereof. However, any of the parties may, without
\ninconsistency with this arbitration provision, apply to any court having
\njurisdiction hereof and seek interim provisional, injunctive or other equitable
\nrelief until the arbitration award is rendered or the controversy is otherwise
\nresolved. Except as necessary in court proceedings to enforce this arbitration
\nprovision or an award rendered hereunder, or to obtain interim relief, or as may
\nbe required by applicable law or regulation, including applicable securities
\nlaws or regulations of an established national securities exchange on which
\nsecurities of Buyer or Seller are traded, neither a party nor an arbitrator may
\ndisclose the existence, content, or results of any arbitration hereunder to any
\nother third party other than its attorneys and auditors without the prior
\nwritten consent of both parties.<\/p>\n
Section 7.5 Exclusive Remedy.
\n —————-<\/p>\n
(a) Except as set forth in Article VIII, each of Buyer and Seller Group
\n ————
\nhereby acknowledges and agrees that its sole and exclusive remedy with respect
\nto any and all claims relating to the representations, warranties, covenants and
\nagreements contained in this Agreement shall be pursuant to the indemnification
\nprovisions set forth in this Article VII, provided, that either party may
\n ———–
\nexercise any and all remedies it may have at law or in equity in <\/p>\n
-76-<\/p>\n
the event of a breach by the other party of its payment obligations established
\npursuant to Section 7.2, Section 7.3 or Section 7.4. In furtherance of the
\n ———– ———– ———–
\nforegoing and subject to the foregoing proviso, each of Buyer and Seller Group
\nhereby waives, to the fullest extent permitted under applicable law, any and all
\nrights, claims and causes of action it may have against Seller Group or Buyer,
\nas the case may be, (but not as against third parties including contribution
\nrights) arising under or based upon any federal, state or local statute, law,
\nordinance, rule or regulation (including any such rights, claims or causes of
\naction arising under or based upon common law or otherwise) with respect to the
\nrepresentations, warranties, covenants and agreements contained in this
\nAgreement.<\/p>\n
(b) Notwithstanding the foregoing subsection (a), nothing contained in
\nthis Section 7.5 shall prevent any party hereto from seeking and obtaining
\n ———–
\nspecific performance by another party hereto of any of its obligations under
\nthis Agreement as provided in Section 9.10 or from seeking and obtaining
\n ————
\ninjunctive relief against another party’s activities in breach of this
\nAgreement.<\/p>\n
(c) Anything herein to the contrary notwithstanding, no breach of any
\nrepresentation, warranty, covenant or agreement contained herein shall give rise
\nto any right on the part of Buyer after the Closing to rescind this Agreement or
\nany of the transactions contemplated hereby.<\/p>\n
Section 7.6 Adjustment to Purchase Price.
\n —————————–<\/p>\n
Any payment by Buyer or Seller Group under this Article VII shall, to the
\n ———–
\nextent such payment can be properly so characterized under applicable tax law,
\nbe treated by the parties as an adjustment to the Purchase Price.<\/p>\n
ARTICLE VIII
\n TERMINATION
\n ———–<\/p>\n
Section 8.1 Termination.
\n ————<\/p>\n
This Agreement may be terminated at any time prior to Closing by:<\/p>\n
(a) the mutual consent of Seller and Buyer;<\/p>\n
(b) either Seller or Buyer if the Closing has not occurred by the close of
\nbusiness on September 30, 2001, so long as the failure to consummate the
\ntransaction on or before such date did not result solely from the failure by the
\nparty (or its Affiliate) seeking termination of this Agreement to fulfill any
\nundertaking or commitment on its part provided for herein prior to Closing;<\/p>\n
(c) by Seller, if neither it nor Global is then in material breach of this
\nAgreement, provided Buyer is in material breach of this Agreement and has failed
\nto cure such breach within thirty days after receipt of notice from Seller
\nrequesting such breach to be cured;<\/p>\n
-77-<\/p>\n
(d) by Buyer, if it is not then in material breach of this Agreement,
\nprovided either Seller or Global is in material breach of this Agreement and has
\nfailed to cure such breach within thirty days after receipt of notice from Buyer
\nrequesting such breach to be cured; or<\/p>\n
(e) by Buyer, pursuant to Section 5.17.
\n ———— <\/p>\n
Section 8.2 Procedure and Effect of Termination.
\n ———————————–<\/p>\n
In the event of termination of this Agreement pursuant to Section 8.1,
\n ———–
\nwritten notice thereof shall forthwith be given by the terminating party to the
\nother parties hereto, and this Agreement shall thereupon terminate and become
\nvoid and have no effect, and the transactions contemplated hereby shall be
\nabandoned without further action by the parties hereto, except that the
\nprovisions of Sections 5.6, 7.2(a)(i), 7.2(b)(i), 7.5, 9.5 and the
\n ———— ——— ——— — —
\nConfidentiality Agreements shall survive the termination of this Agreement and
\nexcept that such termination shall not relieve any party hereto of any liability
\nfor any willful breach of this Agreement.<\/p>\n
Section 8.3 Wrongful Termination.
\n ——————–<\/p>\n
Notwithstanding anything to the contrary in this Agreement, if a party
\nwrongfully terminates this Agreement, that party shall be liable for any
\nIndemnifiable Damages caused thereby.<\/p>\n
ARTICLE IX
\n MISCELLANEOUS
\n ————-<\/p>\n
Section 9.1 Counterparts.
\n ————<\/p>\n
This Agreement may be executed in two or more counterparts, all of which
\nshall be considered one and the same agreement, and shall become effective when
\none or more counterparts have been signed by each of the parties and originals
\nor facsimile counterparts have been delivered to the other parties.<\/p>\n
Section 9.2 Governing Law.
\n ————-<\/p>\n
This Agreement shall be governed by and construed in accordance with the
\ninternal laws of the State of Delaware (without reference to the choice of law
\nprinciples) as to all matters including matters of validity, construction,
\neffect, performance and remedies, provided that the internal affairs of Seller,
\n ——–
\nGlobal and Holding shall be governed by the laws of the State of Texas and the
\ninternal affairs of Maytag Worldwide shall be governed by the laws of the
\nNetherlands Antilles.<\/p>\n
Section 9.3 No Third Party Beneficiaries.
\n —————————-<\/p>\n
Nothing in this Agreement or any ancillary documents, whether expressed or
\nimplied, is intended or shall be construed to confer upon or give to any person,
\nfirm, corporation or legal entity, other than the parties hereto, the Seller
\nIndemnified Parties and the Buyer Indemnified Parties, any rights, remedies or
\nother benefits under or by reason of this Agreement.<\/p>\n
-78-<\/p>\n
Section 9.4 Entire Agreement.
\n —————-<\/p>\n
Except for the Confidentiality Agreement, this Agreement and the Schedules
\nand Exhibits hereto contain the entire agreement among the parties with respect
\nto the subject matter hereof, and there are no agreements, understandings,
\nrepresentations and warranties between the parties other than those set forth or
\nreferred to herein. Each of the parties further represents and warrants that, in
\nexecuting and delivering this Agreement, it has not relied on any statement or
\nrepresentation made by any legal counsel or investment advisor to or other agent
\nof any other party to this Agreement.<\/p>\n
Section 9.5 Expenses.
\n ——–<\/p>\n
Except as otherwise set forth in this Agreement, whether or not the
\ntransactions contemplated by this Agreement are consummated, all legal and other
\ncosts and expenses incurred in connection with this Agreement and the
\ntransactions contemplated hereby shall be paid by the party incurring such costs
\nand expenses.<\/p>\n
Section 9.6 Notices.
\n ——-<\/p>\n
All notices hereunder shall be sufficiently given for all purposes
\nhereunder if in writing and delivered personally, sent by documented overnight
\ndelivery service, or to the extent receipt is confirmed, telecopy, telefax or
\nother electronic transmission service to the appropriate address or number as
\nset forth below.<\/p>\n
Notices to a member of Seller Group shall be addressed to it:<\/p>\n
prior to June 25, 2001: <\/p>\n
c\/o Goodman Global Holdings, Inc.
\n 1501 Seamist
\n Houston, Texas 77008-5097
\n Attention: Ben D. Campbell
\n Executive Vice President, Secretary
\n and General Counsel
\n Telecopier: (713) 862-6729 <\/p>\n
after June 25, 2001: <\/p>\n
c\/o Goodman Global Holdings, Inc.
\n 2550 North Loop West
\n Suite 400
\n Houston, Texas 77092
\n Attention: Ben D. Campbell
\n Executive Vice President, Secretary
\n and General Counsel
\n Telecopier: (713) 862-6729 <\/p>\n
-79-<\/p>\n
with a copy to:<\/p>\n
Bracewell & Patterson, L.L.P.
\n 711 Louisiana Street, Suite 2900
\n Houston, Texas 77002-2781
\n Attention: Edgar J. Marston III
\n Telecopier: (713) 221-1188 <\/p>\n
or at such other address and to the attention of such other person as Seller
\nGroup may designate by written notice to Buyer.<\/p>\n
Notices to Buyer shall be addressed to it:<\/p>\n
Maytag Corporation
\n 403 W. Fourth Street North
\n Newton, Iowa 50208
\n Attention: General Counsel
\n Telecopier: (641) 787-6930 <\/p>\n
with a copy to:<\/p>\n
Sidley Austin Brown & Wood
\n Bank One Plaza
\n 10 South Dearborn St.
\n Chicago, Illinois 60603
\n Attention: Dennis V. Osimitz
\n John R. Box
\n Telecopier: 312-853-7036 <\/p>\n
or to such other address and to the attention of such other person as Buyer may
\ndesignate by written notice to Seller Group.<\/p>\n
Section 9.7 Successors and Assigns.
\n ———————-<\/p>\n
This Agreement shall be binding upon and inure to the benefit of the
\nparties hereto and their respective successors and permitted assigns; provided,
\n ——–
\nhowever, that no party to this Agreement may assign its rights prior to the
\n——-
\nClosing or delegate its obligations under this Agreement without the express
\nprior written consent of the other parties to this Agreement, except that the
\nrights of Buyer hereunder may be assigned prior to the Closing, without the
\nconsent of Seller or Global, to one or more corporations all of the outstanding
\ncapital stock of which is owned or controlled by Buyer or to one or more general
\nor limited partnerships or limited liability companies owned or controlled by
\nBuyer, provided that (i) such assignment shall not result in Buyer or Seller
\n ——–
\nhaving to amend its respective Notification and Report Form filed under the HSR
\nAct in connection with the transactions contemplated hereunder, (ii) the
\nassignee shall assume in writing all of Buyer’s obligations to Seller hereunder,
\n(iii) Buyer shall not be released from any of its obligations hereunder by
\nreason of such assignment and (iv) Seller’s obligations under this Agreement
\nshall be subject to the delivery by such assignee, on or prior to the Closing
\nDate, of a certificate signed on its behalf containing representations and
\nwarranties <\/p>\n
-80-<\/p>\n
similar to those made by Buyer in Article IV. Following the Closing, any party
\nmay assign any of its rights hereunder, but no such assignment shall relieve it
\nof its obligations hereunder.<\/p>\n
Section 9.8 Headings; Interpretation.
\n ————————<\/p>\n
The section and article headings contained in this Agreement are inserted
\nfor convenience and reference only and will not affect the meaning or
\ninterpretation of this Agreement. For purposes of this Agreement, (i) the words
\n“include,” “includes” and “including” shall be deemed to be followed by the
\nwords “without limitation,” (ii) the word “or” is not exclusive and (iii) the
\nwords “herein”, “hereof”, “hereby”, “hereto” and “hereunder” refer to this
\nAgreement as a whole. Unless the context otherwise requires, references herein:
\n(i) to Articles, Sections, Schedules and Exhibits mean the Articles and Sections
\nof, and the Schedules and Exhibits attached to, this Agreement; (ii) to an
\nagreement, instrument or other document means such agreement, instrument or
\nother document as amended, supplemented and modified from time to time to the
\nextent permitted by the provisions thereof and by this Agreement; and (iii) to a
\nstatute means such statute as amended from time to time and includes any
\nsuccessor legislation thereto and any regulations promulgated thereunder. The
\nDisclosure Schedule, Schedules and Exhibits referred to herein shall be
\nconstrued with and as an integral part of this Agreement to the same extent as
\nif they were set forth verbatim herein. All capitalized terms defined herein are
\nequally applicable to both the singular and plural forms of such terms.<\/p>\n
Section 9.9 Amendments and Waivers.
\n ———————-<\/p>\n
This Agreement may not be modified or amended except by an instrument or
\ninstruments in writing signed by the party against whom enforcement of any such
\nmodification or amendment is sought. Any party hereto may, only by an instrument
\nin writing, waive compliance by another party hereto with any term or provision
\nof this Agreement. The waiver by any party hereto of a breach of any term or
\nprovision of this Agreement shall not be construed as a waiver of any subsequent
\nbreach.<\/p>\n
Section 9.10 Specific Performance.
\n ——————–<\/p>\n
The parties acknowledge that money damages would not be a sufficient remedy
\nfor any breach of this Agreement and that irreparable harm would result if this
\nAgreement were not specifically enforced. Therefore, subject to Section 7.4, the
\n ———–
\nrights and obligations of the parties under this Agreement shall be enforceable
\nby a decree of specific performance issued by any court of competent
\njurisdiction, and appropriate injunctive relief may be applied for and granted
\nin connection therewith. A party’s right to specific performance shall be in
\naddition to all other legal or equitable remedies available to such party.<\/p>\n
Section 9.11 Severability of Provisions.
\n ————————–<\/p>\n
If any provision of this Agreement is invalid, illegal or incapable of
\nbeing enforced by any rule of law, or public policy, all other conditions and
\nprovisions of this Agreement shall nevertheless remain in full force and effect
\nso long as the economic or legal substance of the transactions contemplated
\nhereby is not affected in any manner adverse to any party. Upon any such
\ndetermination, the parties hereto shall negotiate in good faith to modify this
\nAgreement so<\/p>\n
-81-<\/p>\n
as to effect the original intent of the parties as closely as possible in an
\nacceptable manner to the end that transactions contemplated hereby are fulfilled
\nto the extent practicable.<\/p>\n
Section 9.12 Consent to Jurisdiction.
\n ———————–<\/p>\n
The parties hereto hereby irrevocably submit to the jurisdiction of any
\nstate or federal court sitting in the City of Wilmington, Delaware in any action
\nor proceeding arising out of or relating to this Agreement, and hereby
\nirrevocably agree that, except with respect to certain matters specifically
\nreferenced herein where disputes shall be resolved by non-judicial proceedings,
\nall claims in respect of any such action or proceeding shall be heard and
\ndetermined in such a court.<\/p>\n
Section 9.13 Joint Preparation.
\n —————–<\/p>\n
The parties to this Agreement have jointly prepared this Agreement.<\/p>\n
Section 9.14 Time.
\n —-<\/p>\n
Time is of the essence in this Agreement.<\/p>\n
-82-<\/p>\n
IN WITNESS WHEREOF, this Agreement has been executed and delivered by or on
\nbehalf of the parties as of the date first above written.<\/p>\n
AMANA APPLIANCE COMPANY, L.P.
\n By: Amana Holding Company,
\n its sole general partner <\/p>\n
By: __________________________
\n Name: ________________________
\n Title: _______________________<\/p>\n
GOODMAN GLOBAL HOLDINGS, INC. <\/p>\n
By: _______________________________
\n Name: _____________________________
\n Title: ____________________________<\/p>\n
MAYTAG CORPORATION <\/p>\n
By: _______________________________
\n Name: _____________________________
\n Title: ____________________________<\/p>\n
MAYTAG WORLDWIDE N.V. <\/p>\n
By: _______________________________
\n Name: _____________________________
\n Title: ____________________________<\/p>\n
-83-<\/p>\n
EXHIBIT B<\/p>\n
INDEMNIFICATION\/CONTRIBUTION<\/p>\n
1. Buyer shall indemnify and hold harmless each Shareholder, each person
\nor entity, if any, who controls such Shareholder within the meaning of the
\nSecurities Act, and each officer, director, partner, and employee of such
\nShareholder and such controlling person or entity, against any and all losses,
\nclaims, damages, liabilities and expenses (joint or several), including
\nattorneys’ fees and disbursements and expenses of investigation, incurred by
\nsuch party pursuant to any actual or threatened action, suit, proceeding or
\ninvestigation, or to which any of the foregoing persons or entities may become
\nsubject under the Securities Act, the Exchange Act or other federal or state
\nlaws, insofar as such losses, claims, damages, liabilities and expenses arise
\nout of or are based upon any of the following statements, omissions or
\nviolations (collectively a “Violation”):
\n ——— <\/p>\n
A. Any untrue statement or alleged untrue statement of a material
\n fact contained in such registration statement, including any preliminary
\n prospectus or final prospectus contained therein, or any amendments or
\n supplements thereto;<\/p>\n
B. The omission or alleged omission to state therein a material fact
\n required to be stated therein, or necessary to make the statements therein
\n not misleading; or<\/p>\n
C. Any violation or alleged violation by Buyer of the Securities
\n Act, the Exchange Act, any applicable state securities law or any rule or
\n regulation promulgated under the Securities Act, the Exchange Act or any
\n applicable state securities law;<\/p>\n
provided, however, that the indemnification required by this Section 1 shall not
\n——– ——- ———
\napply to amounts paid in settlement of any such loss, claim, damage, liability
\nor expense if such settlement is effected without the consent of Buyer (which
\nconsent shall not be unreasonably withheld), nor shall Buyer be liable in any
\nsuch case for any such loss, claim, damage, liability or expense to the extent
\nthat it arises out of or is based upon a Violation which occurs in reliance upon
\nand in conformity with written information furnished to Buyer by the indemnified
\nparty expressly for use in connection with such registration or any information
\nprovided by a Shareholder regarding its proposed plan of distribution; provided,
\n ——–
\nfurther, that the indemnity agreement contained in this Exhibit B shall not
\n——- ———
\napply to any underwriter to the extent that any such loss is based on or arises
\nout of an untrue statement or alleged untrue statement of a material fact, or an
\nomission or alleged omission to state a material fact, contained in or omitted
\nfrom any preliminary prospectus if the final prospectus shall correct such
\nuntrue statement or alleged untrue statement, or such omission or alleged
\nomission, and a copy of the final prospectus has not been sent or given to such
\nperson at or prior to the confirmation of sale to such person if such
\nunderwriter was under an obligation to deliver such final prospectus and failed
\nto do so. Buyer shall also indemnify underwriters, selling brokers, dealer
\nmanagers and similar securities industry professionals participating in the
\ndistribution, their officers, directors, agents and employees and each person
\nwho controls such persons (within the meaning of Section 15 of the Securities
\nAct or Section 20<\/p>\n
of the Exchange Act) to the same extent as provided above with respect to the
\nindemnification of the Shareholders.<\/p>\n
2. Each Shareholder shall indemnify and hold harmless Buyer, each of its
\ndirectors, each of its officers who shall have signed the registration
\nstatement, each person or entity, if any, who controls Buyer within the meaning
\nof the Securities Act, any other Shareholder, any controlling person or entity
\nof any such other Shareholder and each officer, director, partner, and employee
\nof such other Shareholder and such controlling person or entity, against any and
\nall losses, claims, damages, liabilities and expenses (joint and several),
\nincluding attorneys’ fees and disbursements and expenses of investigation,
\nincurred by such party pursuant to any actual or threatened action, suit,
\nproceeding or investigation, or to which any of the foregoing persons or
\nentities may otherwise become subject under the Securities Act, the Exchange Act
\nor other federal or state laws, insofar as such losses, claims, damages,
\nliabilities and expenses arise out of or are based upon any Violation, in each
\ncase to the extent (and only to the extent) that such Violation occurs in
\nreliance upon and in conformity with written information furnished by such
\nShareholder expressly for use in connection with such registration or any
\ninformation provided by such Shareholder regarding its proposed plan of
\ndistribution; provided, however, that (x) the indemnification required by this
\n ——– ——-
\nSection 2 shall not apply to amounts paid in settlement of any such loss, claim,
\n———
\ndamage, liability or expense if settlement is effected without the consent of
\nthe relevant Shareholder, which consent shall not be unreasonably withheld, and
\n(y) in no event shall the amount of any indemnity under this Section 2 exceed
\n ———
\nthe gross proceeds from the applicable offering received by such Shareholder.<\/p>\n
3. Promptly after receipt by an indemnified party under this Exhibit B of
\n ———
\nnotice of the commencement of any action, suit, proceeding, investigation or
\nthreat thereof made in writing for which such indemnified party may make a claim
\nunder this Exhibit B, such indemnified party shall deliver to the indemnifying
\n ———
\nparty a written notice of the commencement thereof and the indemnifying party
\nshall have the right to participate in, and, to the extent the indemnifying
\nparty so desires, jointly with any other indemnifying party similarly noticed,
\nto assume the defense thereof with counsel mutually satisfactory to the parties;
\nprovided, however, that an indemnified party shall have the right to retain its
\n——– ——-
\nown counsel, with the fees and disbursements and expenses to be paid by the
\nindemnifying party, if representation of such indemnified party by the counsel
\nretained by the indemnifying party would be inappropriate due to actual or
\npotential differing interests between such indemnified party and any other party
\nrepresented by such counsel in such proceeding. The failure to deliver written
\nnotice to the indemnifying party within a reasonable time following the
\ncommencement of any such action, if prejudicial to its ability to defend such
\naction, shall relieve such indemnifying party of any liability to the
\nindemnified party under this Exhibit B but shall not relieve the indemnifying
\n ———
\nparty of any liability that it may have to any indemnified party otherwise than
\npursuant to this Exhibit B. Any fees and expenses incurred by the indemnified
\n ———
\nparty (including any fees and expenses incurred in connection with investigating
\nor preparing to defend such action or proceeding) shall be paid to the
\nindemnified party, as incurred, within thirty (30) days of written notice
\nthereof to the indemnifying party (regardless of whether it is ultimately
\ndetermined that an indemnified party is not entitled to indemnification
\nhereunder). Any such indemnified party shall have the right to employ separate
\ncounsel in any such action, claim or proceeding and to participate in the
\ndefense thereof, but the fees and expenses of such counsel shall be the expenses
\nof such indemnified party unless (i) the indemnifying party has agreed to pay
\nsuch fees and expenses or (ii) the indemnifying party shall have failed to
\npromptly assume the defense of such action, claim<\/p>\n
or proceeding or (iii) the named parties to any such action, claim or proceeding
\n(including any impleaded parties) include both such indemnified party and the
\nindemnifying party, and such indemnified party shall have been advised by
\ncounsel that there may be one or more legal defenses available to it which are
\ndifferent from or in addition to those available to the indemnifying party and
\nthat the assertion of such defenses would create a conflict of interest such
\nthat counsel employed by the indemnifying party could not faithfully represent
\nthe indemnified party (in which case, if such indemnified party notifies the
\nindemnifying party in writing that it elects to employ separate counsel at the
\nexpense of the indemnifying party, the indemnifying party shall not have the
\nright to assume the defense of such action, claim or proceeding on behalf of
\nsuch indemnified party, it being understood, however, that the indemnifying
\nparty shall not, in connection with any one such action, claim or proceeding or
\nseparate but substantially similar or related actions, claims or proceedings in
\nthe same jurisdiction arising out of the same general allegations or
\ncircumstances, be liable for the reasonable fees and expenses of more than one
\nseparate firm of attorneys (together with appropriate local counsel) at any time
\nfor all such indemnified parties, unless in the reasonable judgment of such
\nindemnified party a conflict of interest may exist between such indemnified
\nparty and any other of such indemnified parties with respect to such action,
\nclaim or proceeding, in which event the indemnifying party shall be obligated to
\npay the fees and expenses of such additional counsel or counsels). No
\nindemnifying party shall be liable to an indemnified party for any settlement of
\nany action, proceeding or claim without the written consent of the indemnifying
\nparty, which consent shall not be unreasonably withheld.<\/p>\n
4. If the indemnification required by this Exhibit B from the
\n ———
\nindemnifying party is unavailable to an indemnified party hereunder in respect
\nof any losses, claims, damages, liabilities or expenses referred to in this
\nExhibit B:
\n——— <\/p>\n
A. The indemnifying party, in lieu of indemnifying such indemnified
\n party, shall contribute to the amount paid or payable by such indemnified
\n party as a result of such losses, claims, damages, liabilities or expenses
\n in such proportion as is appropriate to reflect the relative fault of the
\n indemnifying party and indemnified parties in connection with the actions
\n which resulted in such losses, claims, damages, liabilities or expenses, as
\n well as any other relevant equitable considerations. The relative fault of
\n such indemnifying party and indemnified parties shall be determined by
\n reference to, among other things, whether any Violation has been committed
\n by, or relates to information supplied by, such indemnifying party or
\n indemnified parties, and the parties’ relative intent, knowledge, access to
\n information and opportunity to correct or prevent such Violation. The
\n amount paid or payable by a party as a result of the losses, claims,
\n damages, liabilities and expenses referred to above shall be deemed to
\n include, subject to the limitations set forth in Section 1 and Section 2,
\n ——— ———
\n any legal or other fees or expenses reasonably incurred by such party in
\n connection with any investigation or proceeding.<\/p>\n
B. The parties hereto agree that it would not be just and equitable
\n if contribution pursuant to this Section 4 were determined by pro rata
\n ———
\n allocation or by any other method of allocation which does not take into
\n account the equitable considerations referred to in Section 4(A). No person
\n ————
\n or entity guilty of fraudulent misrepresentation (within the meaning of
\n Section 11(f) of the Securities Act) shall be entitled to contribution from
\n any person or entity who was not guilty of such fraudulent
\n misrepresentation.<\/p>\n
5. If indemnification is available under this Exhibit B, the indemnifying
\n ———
\nparties shall indemnify each indemnified party to the full extent provided in
\nthis Exhibit B without regard to the relative fault of such indemnifying party
\n ———
\nor indemnified party or any other equitable consideration referred to in Section
\n ——-
\n4.
\n–<\/p>\n
6. The obligations of Buyer and the Shareholders under this Exhibit B
\n ———
\nshall survive the completion of any offering of Maytag Shares pursuant to a
\nRegistration Statement under this Agreement, and otherwise.<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8154],"corporate_contracts_industries":[9393],"corporate_contracts_types":[9623,9622],"class_list":["post-43275","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-maytag-corp","corporate_contracts_industries-consumer__appliances","corporate_contracts_types-planning__asset","corporate_contracts_types-planning"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43275","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43275"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43275"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43275"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43275"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}