FIRST AMENDMENT to ASSET PURCHASE AGREEMENT among KADANT COMPOSITES LLC, KADANT INC., and LIBERTY DIVERSIFIED INDUSTRIES, INC. dated as of October 10, 2006
Exhibit
10.1
FIRST
AMENDMENT
to
among
KADANT
COMPOSITES LLC,
LDI
COMPOSITES CO.
and
LIBERTY
DIVERSIFIED INDUSTRIES, INC.
dated
as
of
October
10, 2006
FIRST
AMENDMENT TO ASSET PURCHASE AGREEMENT
This
First Amendment to Asset Purchase Agreement is made and entered into as of
October 10, 2006, among KADANT COMPOSITES LLC, a Delaware
limited liability company (“Seller”), KADANT
INC., a Delaware corporation (“Kadant”), LDI
COMPOSITES CO., a Minnesota corporation (“Buyer”), and
LIBERTY DIVERSIFIED INDUSTRIES, INC., a Minnesota corporation,
and parent corporation of Buyer (“Buyer
Parent”). Capitalized terms used herein and not otherwise
defined shall have the meaning ascribed to them in the Agreement (defined
below).
WHEREAS,
effective October 21, 2005, the parties entered into that certain Asset Purchase
Agreement (the “Agreement”) pursuant to which Seller sold to
Buyer all of the tangible and intangible assets of Seller other than the
Excluded Assets (as defined therein), and Buyer purchased the same on the terms
set forth therein.
WHEREAS,
the parties wish to amend certain of the provisions, covenants and obligations
under the Agreement in accordance with the terms and conditions of this
Amendment;
NOW,
THEREFORE, in consideration of the covenants and agreements
hereinafter set forth, the parties hereto agree as follows:
1. Amendment
to Section 10 of Agreement. Section 10(a) of the Agreement is
hereby to provide the following additional provision:
“(iv) During
Buyer's Administration Period, warranty claimants were sent notices
(the “Warranty Notices”) that their claims would be remedied (the
remedy specified in the Warranty Notices being referred to as the
“Approved Warranty Claims”) but such Approved Warranty Claims were not remedied
before the Warranty Fund was fully committed. Seller agrees to honor and
pay up to an additional amount of $1,500,000 (the “Additional Funds”) for
Approved Warranty Claims as specified in the Warranty Notices. At
such time as the Additional Funds have been exhausted, Seller agrees to honor
and pay for Warranty Claims in accordance with applicable warranty obligations
as provided in section 10(a) (iii) of the Agreement.
2. Amendment
to Section 12 of Agreement. Section 12(f) of the Agreement shall
be amended by replacing the second sentence thereof with the following: “No
Indemnifying Party shall be liable for any Loss, to the extent that the
aggregate of all such Losses for which Indemnified Parties have received
indemnification exceed $8,914,000.”
3. Release. In
further consideration of the Seller’s obligation to pay Additional Funds, as set
forth in Section 1 above, Buyer and Buyer Parent hereby release and forever
discharge each of Seller and Kadant, their respective agents, employees,
affiliated entities, directors, officers, successors and assigns of and from
all
demands, actions, causes of action, suits, damages and any and all claims,
demands and liabilities whatsoever of every name and nature, both in law and
in
equity, which against the other, each now has or ever had and more especially
on
account of, from or relating to, Warranty Claims and product problems
related to premature degradation or crumbling of the product and excessive
contraction of the product; provided, however, that this release
shall not effect the obligation of Seller and Kadant to defend Buyer and Buyer
Parent from any Third Party Claim related to Warranty Claims subject to the
limitations set forth in Section 12(f) of the Agreement, as amended by this
Amendment.
4. Survival
of Remaining Provisions. Except as set forth above all of the
other terms, provisions and conditions set forth in the Agreement shall remain
in full force and legal effect as if the terms of the Amendment had been
originally included in the Agreement.
IN
WITNESS WHEREOF,
this Amendment has been duly executed as of the day and year first above
written.
KADANT
COMPOSITES LLC
By: Kadant
GranTek Inc., its sole member
By:
/s/
Xxxxxxxx X.
Painter___________
Name: Xxxxxxxx
X. Xxxxxxx
Title: Chairman
By: /s/
Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: VP
& General Counsel
LDI
COMPOSITES
CO.
By: /s/
Xxxxxxx Xxxxxxxxxx
Name:
Xxxxxxx Xxxxxxxxxx
Title:
VP & CFO
LIBERTY
DIVERSIFIED INDUSTRIES,
INC.
By: /s/
Xxxxxxx Xxxxxxxxxx
Name:
Xxxxxxx Xxxxxxxxxx
Title:
VP & CFO
