EXHIBIT 99.4
INSTRUMENT OF ASSUMPTION
OF LIABILITIES
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INSTRUMENT OF ASSUMPTION OF LIABILITIES made, executed and delivered
as of February 16, 2001, by APW Mayville, LLC, a Delaware limited liability
company ("Buyer Sub"), in favor of Xxxxxxx Limited Partnership, a Delaware
limited partnership ("Xxxxxxx").
WHEREAS, Xxxxxxx, Buyer Sub and APW Ltd., a Bermuda company, are the
parties to the Asset Purchase Agreement, dated as of January 23, 2001, as
amended by Amendment No. 1 to the Asset Purchase Agreement dated as of February
16, 2001 (the "Asset Purchase Agreement"), providing for, among other things,
the assumption by Buyer Sub of certain liabilities and obligations of the
Mayville Metal Products Division of Xxxxxxx on the terms and conditions provided
in the Asset Purchase Agreement (capitalized terms used and not otherwise
defined in this Instrument of Assumption of Liabilities having the meanings
ascribed to such terms in the Asset Purchase Agreement);
WHEREAS, all of the terms and conditions precedent provided in the
Asset Purchase Agreement have been met and performed or waived by the respective
parties thereto, and such parties now desire to carry out the intent and purpose
of the Asset Purchase Agreement by, among other things, Buyer Sub's execution
and delivery to Xxxxxxx of this Instrument of Assumption of Liabilities; and
WHEREAS, this Instrument of Assumption of Liabilities is made,
executed and delivered pursuant to and in accordance with the Asset Purchase
Agreement, the terms of which
shall not be merged hereinto but shall survive the execution hereof as and to
the extent provided therein;
NOW, THEREFORE, in consideration of the premises and of other valuable
consideration to Buyer Sub in hand paid by Xxxxxxx, at or before the execution
and delivery hereof, the receipt and sufficiency of which by Xxxxx Sub is hereby
acknowledged, Xxxxx Sub hereby agrees as follows:
Section 1. Pursuant to Section 4.1 of the Asset Purchase Agreement and
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on the terms and conditions provided in the Asset Purchase Agreement, Buyer Sub,
by this Instrument of Assumption of Liabilities, hereby assumes, and shall
discharge and satisfy when due, all of the following liabilities and obligations
of the Division:
(a) the "Accounts payable," "Accrued expenses" and "Amounts due
Parent" of the Division to the extent shown on the Closing Balance Sheet;
(b) all liabilities and obligations for accrued and unpaid
vacation and wages of the Eligible Employees to the extent shown on the Closing
Balance Sheet;
(c) all liabilities and obligations of the nature for which
there are reserves or accruals reflected in the Closing Balance Sheet to the
extent of the aggregate of such reserves and without regard to whether any such
liability or obligation relates to any particular reserve;
(d) all liabilities and obligations arising, or the performance
of which arises, after the Closing under the Real Property Leases;
(e) all liabilities and obligations arising, or the performance
of which arises, after the Closing under the leases of personal property of the
Division;
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(f) all liabilities and obligations arising, or the performance
of which arises, after the Closing under the Material Contracts or other
agreements of the Division (other than the Real Property Leases or leases of
personal property referred to in Sections 1(d) and (e));
(g) all liabilities and obligations becoming due and payable or
arising, or the performance of which arises, after the Closing under the Alliant
Energy Wisconsin Power & Light Company Shared Savings Contract for Mayville
Metal Products, Inc. Paint Shop Retrofit and the liabilities and obligations
with respect thereto to the extent reflected on the Closing Balance Sheet;
(h) all liabilities and obligations associated with the
collective bargaining agreements existing as of the Closing between Xxxxxxx and
Local Lodge No. 2052 of the IAM;
(i) the liabilities and obligations set forth in Sections
10.4(d) and (e) of the Asset Purchase Agreement, to the extent set forth therein
and the responsibility for the contribution to the CLP Profit Sharing and
Savings Plan with respect to the Transferred Employees for the calendar year
2000;
(j) except as set forth in Sections 4.2(f) and 10.11 of the
Asset Purchase Agreement, all liabilities and obligations arising out of or
related to the Assets or the operation of the business of the Division at any
time which arise out of or relate to (i) the presence, Release or threatened
Release of any Hazardous Material at any location or (ii) circumstances forming
the basis of any violation, or alleged violation, of any Environmental Law;
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(k) the liabilities and obligations under the Division's Health
Maintenance Organization agreements covering certain employees subject to the
CBAs as set forth in Section 10.4(f) of the Asset Purchase Agreement and under
the Division's Employee Assistance Program; and
(l) the liabilities and obligations for payment of benefits and
administration of the portion of the Beneflex Component Plan of the CLP Health
and Welfare Plan which is to be spun-off pursuant to Section 10.4(i) of the
Asset Purchase Agreement and the liability to make payments to Eligible
Employees who are on short term disability leave of absence as of the Closing
Date, in accordance with Section 10.4(j) of the Asset Purchase Agreement.
The assumption by Buyer Sub of the foregoing liabilities and
obligations of the Division shall not be construed, as between Buyer Sub and the
obligees of such liabilities and obligations (other than Xxxxxxx), to defeat,
impair or limit in any way any rights or remedies of Buyer Sub to contest or
dispute the validity or amount thereof; provided, that this provision shall not
in any way impair Xxxxxxx'x rights to indemnification from Buyer Sub with
respect to the Assumed Liabilities under the Asset Purchase Agreement.
Section 2. Subject to the terms and conditions of the Asset Purchase
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Agreement, from time to time after the delivery of this Instrument of Assumption
of Liabilities, without further consideration, Buyer Sub will do, execute,
acknowledge and deliver, or will cause to be done, executed, acknowledged and
delivered, all such further acts, deeds, assignments, transfers, conveyances,
powers of attorney and instruments of further assurances which
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Xxxxxxx may reasonably request in order to more fully effectuate the assumption
of liabilities provided for in this Instrument of Assumption of Liabilities.
Section 3. This Instrument of Assumption of Liabilities is executed
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by, and shall be binding upon, Buyer Sub and its successors and assigns, for the
uses and purposes above set forth and referred to, effective immediately upon
its delivery to Xxxxxxx.
Section 4. This Instrument of Assumption of Liabilities shall be
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governed by and construed and enforced in accordance with the laws of the State
of Delaware (without giving effect to the principles of conflicts of law
thereof) as to all matters, including but not limited to, matters of validity,
construction, effect, performance and remedies.
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IN WITNESS WHEREOF, Buyer Sub has caused this Instrument of Assumption
of Liabilities to be signed by its duly authorized officer as of the date first
written above.
APW MAYVILLE, LLC
Attest:
By /s/ Xxxxxxx X. Xxxxxx XXX By /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxxx XXX Name: Xxxxxx X. Xxxxx
Title: Secretary Title: Vice President
Xxxxxx and accepted
as of the date first
written above.
XXXXXXX LIMITED PARTNERSHIP
By: Its General Partner
XXXXXXX INDUSTRIES, INC.
By /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President
COMMONWEALTH OF MASSACHUSETTS )
: SS.
COUNTY OF SUFFOLK )
On this __day of___________, 2001, before me appeared ______________ and
_____________, each to me personally known, who, being by me duly affirmed, did
say that they are the ___________ and ___________, respectively, of APW
Mayville, LLC, a Delaware limited liability company, and that said instrument
was signed on behalf of such company by authority of its sole member, and
______________ and ________________ acknowledged said instrument to be the free
act and deed of such corporation.
______________________
NOTARY PUBLIC
