EXHIBIT 10.44
SUPPLY AGREEMENT II
BETWEEN
RAYTHEON COMMERCIAL LAUNDRY LLC
AND
AMANA COMPANY, L.P.
DATED AS OF
SEPTEMBER 10, 1997
PAGE>
SUPPLY AGREEMENT II
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As of the 10th day of September, 1997, Raytheon Commercial Laundry LLC,
a Delaware limited liability company, with its principal office at Shepard
Street, Ripon, Wisconsin, 54971 (hereinafter referred to as "Buyer") and
Amana Company, L.P., a Delaware limited partnership with offices at 1501 Seamist
Drive, Houston, TX 77008(hereinafter referred to as "Seller"), in consideration
of the mutual covenants contained herein and such other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
hereby agree as follows:
Section 1. SALE AND PURCHASE.
Seller will manufacture and sell to Buyer, and Buyer will purchase from
Seller, (i) Horizon "single-pocket" frontload washing machines ("One-
Year Products"), and (ii) Jupiter dryers, Jupiter stack units and
Jupiter/Horizon combination units and component parts and replacement
parts ("Two-Year Products"), each described by model and component part
number in Exhibit A, attached hereto and made a part hereof, and
subsequent models for which the appearance, design and performance
specifications, packing and labeling specifications and unit prices have
been agreed to in writing by the parties hereunder, and all component
parts and replacement parts thereof (all One-Year Products and Two-Year
Products, collectively, the "Products"). Seller's obligations hereunder
are limited to the Products.
Section 2. TERM OF AGREEMENT
(a) This Agreement shall be in effect from the date hereof (the
"Effective Date") until (i) with respect to the One-Year Products, one
(1) year after the Effective Date, and (ii) with respect to Two-Year
Products, two (2) years after the Effective Date; provided, however,
that unless either party shall notify the other not later than the date
twelve (12) months prior to the Expiration Date as defined below, this
Agreement shall be deemed renewed for a period of one (1) year following
its termination date.
(b) For purposes of this Agreement the "Expiration Date" shall mean, (i)
with respect to the One-Year Products, one (1) year after the Effective
Date, and (ii) with respect to Two-Year Products, two (2) years after
the Effective Date. For purposes of this Agreement, the term "Final
Termination Date" shall mean the last date for which this Agreement is
effective, including all renewals or other extensions.
(c) In the event of non-renewal at Buyer's request, Buyer agrees to
provide Seller with a final production order at least sixteen (16) weeks
prior to the Final Termination Date which shall set forth total
quantities of Product by model number to be purchased by Buyer per week
for each of the final twelve (12) weeks of this Agreement.
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** Multiple asterisks indicate that the portion of this document so marked has
been omitted as a confidential portion of this document and has been filed
separately with the Commission.
Section 3. PURCHASE PRICE.
(a) The unit prices of the Products shall be the prices set forth
opposite the model number on Exhibit A attached hereto. **OMITTED
PURSUANT TO CONFIDENTIAL TREATMENT REQUEST. **
(b) If the Buyer chooses to renew this Agreement in accordance with
Section 2(a), **OMITTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST. **
Seller will deliver a list of revised prices (the "Revised Prices") to
Buyer at least ninety (90) days prior to commencement of the contract
extension.
Section 4. PURCHASE LIMITS
(a) Buyer shall purchase from Seller the following minimum amounts per
twelve (12) month period commencing (i) with respect to all Products in
Category 1 below, on the Effective Date, and (ii) with respect to all
Products in Category 2 below, on the first date on which all Products in
any sub-category are available for sale, which amount may increased by
mutual consent of the parties.
Category 1:
Jupiter Metered and Non-Metered Product ** OMITTED PURSUANT
TO CONFIDENTIAL
TREATMENT REQUEST. **
Category 2:
Jupiter Commerical Stack Dryer ** OMITTED PURSUANT
Commercial Frontload TO CONFIDENTIAL
Stack Frontload/Washer Combo TREATMENT REQUEST. **
For Category 1 Products, the monthly minimum will be ** OMITTED PURSUANT
TO CONFIDENTIAL TREATMENT REQUEST. ** and the monthly maximum will be **
OMITTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST. ** For Category 2
Products, the monthly minimum will be ** OMITTED PURSUANT TO
CONFIDENTIAL TREATMENT REQUEST. ** and the monthly maximum will be **
OMITTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST. **
(b) In the event that Buyer fails to purchase sufficient units of
Product to satisfy the minimum requirements for any twelve (12) month
period as provided in subsection (a), Buyer shall pay to Seller, as
liquidated damages, an amount equal to the minimum number of units set
forth in Section 4(a) less the number of units actually purchased in
such twelve (12) month period times **OMITTED PURSUANT TO CONFIDENTIAL
TREATMENT REQUEST. **
(c) With respect to Component Parts and Replacement Parts, Buyer shall
not be obligated to procure any minimum quantities.
Section 5. PRICE INCREASES.
(a) PPI Increases. Prices for Two-Year Products will be adjusted during
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the term of this Agreement as follows:
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**OMITTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST.**
Section 6. PURCHASE PROCEDURES
(a) Beginning on the Effective Date and each week thereafter, Buyer
shall provide Seller with (i) a production order (a "Production Order")
setting forth total quantities of Product by model number to be
purchased by Buyer per week for each of the next ensuing four (4) weeks
and (ii) forecasts of Seller's projected weekly Product orders, by
quantity and model number, during the eight (8) week period following
the next ensuing four (4) weeks (the "Forecasts"). Production Orders
shall be firm and shall be timely filled by Seller. Forecasts shall not
constitute purchase orders and shall not be binding on Buyer, except to
the extent set forth herein.
(b) The aggregate number of units ordered in a Production Order may only
be adjusted upward or downward from the aggregate number of units
projected in the Forecast for the same period by a percentage which is
less than or equal to the percentage figures set forth in the following
schedule:
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(i) If the relevant Forecast was given 4 weeks prior to the
applicable four-week Production Order period, plus or equal to 5%.
(ii) If the relevant Forecast was given 8 weeks prior to the
applicable four-week Production Order period, plus or equal to 10%.
(c) Buyer may change the mix of models for the Forecast periods each
week.
(d) Should Buyer desire to make upward quantity changes in a Production
Order in excess of the amounts allowed in subsection (b), Buyer may
notify Seller in writing, and Seller will attempt to manufacture and
deliver the requested incremental quantities and supply response to
Buyer within 10 days.
(e) By the last day of the ninth month of any twelve (12) month period,
Buyer shall provide Seller with a production forecast for the
anticipated annual quantities to be purchased during the next twelve
(12) month period.
Section 7. SHIPMENT
(a) Shipment information and production schedules will be electronically
communicated, telephoned, or faxed to:
Buyer
Shepherd Street
Ripon, WI 54971
Phone: 414-748-1730
Fax: 414-748-4334
(b) Within twenty-four (24) hours of shipment, Seller will communicate
to Buyer a shipment notification (the "Shipment Notification"),
referencing Buyer's Production Order and citing any deviations
therefrom. Seller shall issue shipping documents and invoices billing
Buyer for Products promptly upon delivery of such Products to Buyer.
Payment in full shall be due within thirty (30) days from the date of
Seller's invoice. All invoices shall be accompanied by a signed copy of
the outbound bill of lading setting forth the relevant consignee,
production codes and quantities of each code shipped.
Section 8. DELIVERY, TITLE AND RISK OF LOSS
(a) Subject to the provisions of this Agreement, Products shall be
delivered to Buyer in accordance with instructions of Buyer submitted to
Seller from time to time. Products will be in truckload quantities,
**OMITTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST.**
(b) Title and risk of loss, destruction or damage to the Products shall
pass to Buyer upon delivery of the products to Buyer, or the carrier
designated by Buyer, at Seller's facility.
Section 9. DELAYS IN DELIVERY
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(a) Time is of the essence for all deliveries pursuant to this
Agreement. If a tender of conforming Products is not made within five
(5) business days of the shipping date specified, Seller shall be in
breach of this Agreement and Seller shall have no right to make a later
conforming tender. Buyer will not obligated to accept any tender which
does not fully comply with there provisions.
(b) If Seller does not comply with Buyer's requirements herein, Buyer
may, in addition to any other remedies which Buyer may have under the
Uniform Commercial Code or this Agreement, require reimbursement from
Seller for any reasonable concessions made to Buyer's customers as a
result of the unavailability of the Products so ordered as so scheduled,
including, but not limited to, the purchase price of replacement
products ordered or, if a replacement product is unavailable, the
reasonable cost of compensation, labor, overhead, travel time and
materials required to supply such replacements. Seller shall promptly
notify Buyer in writing of any anticipated delay, the nature and cause
of the delay, and the expected duration.
(c) Goods shipped more than five (5) days in advance of Buyer's
requirements schedule may be returned to seller at Seller's expense.
(d) Neither party shall be liable for any failure, inability or delay in
performing its obligations hereunder if such failure, inability or delay
is due to an act of God, war, explosion or sabotage, accident, casualty,
Government law, Order or Regulation. Due diligence and every reasonable
effort shall be used by each party in curing such cause and in resuming
performance, such as substitution of material sources or utilization of
overtime or additional workers. With respect to any Production Order, in
the event the delay persists, or if it reasonably appears to Buyer that
the delay will persist, for more than sixty (60) days, Buyer may cancel
such Production Order without penalty. In the event that delay or
inability to perform arises from interruption of supply or scarcity of
raw materials or parts used by Seller in manufacturing Products, [Seller
shall use all commercially reasonable efforts to give Buyer's orders
priority over all other orders in any allocation of such raw materials
or parts, or production scheduling; provided, however, that delay as a
result of interruption of supplies or scarcity of materials or parts
shall not excuse Seller's performance unless due to one of the causes
noted above.]
Section 10. DESIGN; PRODUCT CHANGES
(a) Products manufactured by Seller for Buyer under this Agreement shall
be of Seller's design and manufacture, except for those changes
specified elsewhere herein, shall conform in quality and safety to
comparable Seller models, and shall be inspected at Seller's factory in
accordance with Seller's standard factory test procedures.
(b) At least nine (9) months (or such lesser period as the parties may
otherwise agree) prior to the proposed introduction of any new model of
frontload washing machines or dryers, any proposed change in the design
of any existing Product, or the proposed discontinuance of any existing
Product (each, a "Product Change"), Seller shall provide Buyer with
notice of such proposed Product Change. Within sixty (60) days
thereafter,
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Buyer shall advise Seller of its approval or disapproval of such
proposed Product Change. Thereafter, the parties shall mutually agree on
the type, number and design of models of Products which shall be
acceptable to the parties. No discontinuance or changes in the type,
number or design of models of Products as agreed upon, shall be made by
Seller unless authorized and confirmed in writing by Buyer.
(c) Samples for test purposes will be supplied to Buyer by Seller for
each new model planned for purchase by Buyer in an amount to be mutually
agreed upon by the parties. Such samples will generally lack U.L. and
other code board approvals and are not merchantable by Buyer. Cost of
production and all transfer costs, including air freight and insurance,
for these samples shall be for the account of Buyer. Samples shall
otherwise be delivered in accordance with the same terms as govern the
delivery of Products.
(d) Buyer's prior acceptance of any prototype shall not prejudice
Buyer's right to reject said samples produced as a result of such
prototype, and Buyer shall be under no obligation to purchase Products
resulting from the acceptance of such prototypes if Buyer subsequently
rejects said samples.
(e) For new models, Seller shall prepare and supply to Buyer product
information for each model. This will include operating instructions,
care and maintenance, special safety warnings and installation
instructions. Buyer will then develop the artwork and send it to Seller
of technical review. After approval, Buyer will send negatives or disks
to Seller for the owner's manual installation instruction book (one
book). The artwork will be delivered within twenty-eight (28) days from
receipt of final changes to Seller, and Seller will print the manuals
for use in production. Within fourteen (14) days of Initial production,
Seller will deliver to Buyer ten (10) copies of the printed manual for
Buyer-required archiving.
Section 11. NEW PROPOSALS
(a) Buyer or Seller (the "Proposing Party") may, at any time, propose in
writing to the other party (the "Responding Party") additional changes
to the design, appearance, manufacture, materials, or other aspects of
production of any Product (each a "Proposal"), which proposal shall
provide a brief description of the reasons for such Proposal and the
expected benefits, including cost savings, to result from implementation
of such Proposal. Upon receipt, the Seller will make all reasonable
efforts to evaluate the Proposal and to provide the Buyer with an
estimate of the approximate amount of the addition to or reduction in
the aggregate cost of production of such Product as a result of such
Proposal. Buyer and Seller will then mutually agree to accept or reject
such Proposal.
(b) Upon acceptance of any Proposal, the Seller shall follow the
procedures outlined in Section 10(c) with respect to production of
samples.
(c) The price of any Product after implementation shall be adjusted as
follows:
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** OMITTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST. **
Section 12. TOOLING, UNIQUE MATERIALS OR EQUIPMENT
If design changes implemented pursuant to Section 10 or 11 require specific
tooling, equipment or material different from that required for Seller's
manufacture of Products for Buyer and different from that required for
manufacture of Products for sale by Seller itself or by Seller to other
customers, Seller agrees to develop tooling as required by Buyer to achieve
appropriate Product differentiation. The parties will agree on an equitable
cost for such changes. Buyer reserves the right to review all tooling,
equipment or material and associated documentation at any time and reserves
the right to first piece article approval as may be specified by Buyer.
Section 13. COMMERCIAL UNIQUE DESIGNS.
(a) Attached hereto as Exhibit B, is a list of certain designs, related
exclusively to the commercial laundry market ("Commercial Unique Designs"),
which are incomplete as of the Effective Date, but which will be completed
during the period of this Agreement. Because these products are not
complete, standard costs do not exist. As part of the completion of each
project, Searcy personnel will establish standard costs by following the
procedure outlined in Section (c) below:
(b) ** OMITTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST. ** Within ten
(10) business days after receipt by Seller of such objection by Buyer,
Buyer's auditor and Seller's auditor shall submit such dispute to a firm of
nationally recognized independent public accountants (the "Neutral
Auditors") mutually agreed to by Seller's auditors and Buyer's auditor. The
Neutral Auditors shall act as an arbitrator to determine the applicable
standard costs, based on such Neutral Auditors own audit of the ** OMITTED
PURSUANT TO CONFIDENTIAL TREATMENT REQUEST. ** which determination shall be
made within thirty (30) days of their selection, and
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shall be final, binding and conclusive, and shall be referred to herein as
the "Final Standard Costs").
(c) ** OMITTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST. **
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** OMITTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST. **
(d) With respect to each Commercial Unique Design which is incomplete at
any time during the term of the Agreement, Seller agrees as follows:
(i) to use best efforts to help Buyer complete and implement the design
process and to commence production of each such incomplete Commercial
Unique Design no later than the dates specified on Exhibit B for each
incomplete Commercial Unique Design, which best efforts shall include,
but not be limited to the provision of the following factory support
services:
. manufacturing engineering;
. industrial engineering;
. assembly layout;
. tooling;
. capital analyses;
. manufacturing planning;
. procurement; and
. quality control.
(ii) For delivery of such services, Buyer shall pay Seller a fixed
rate of ** OMITTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST. ** per
hour; provided that such services shall be provided only at such times
as have been requested and scheduled by Buyer.
(iii) Seller further agrees to commit the same time, energy,
resources, and personnel to the development of the incomplete
Commercial Unique Designs as Seller would otherwise utilize in the
production of products to be sold under Buyer's trademarks and trade
names.
Section 14. INCOMPLETE HOME DESIGNS
Should Buyer elect to complete the designs set forth on Exhibit C for home
products which are not complete by the Effective Date ("Incomplete Home
Designs"):
(a) ** OMITTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST. **
(b) Buyer shall pay all amounts which remain to be expended for tooling and
equipment require to produce such Incomplete Home Designs.
Section 15. ENGINEERING SUPPORT
(a) Buyer shall provide to Seller upon Seller's request the following
support services:
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(b) Engineering support services to continue and maintain the production of
Products, which services include the following:
(i) design engineering;
(ii) procurement related to design engineering;
(iii) technical publications (i.e, parts and services manuals,
operating instructions, and use and care guides); and
(iv) configuration management.
(c) For delivery of such services, Seller shall pay Buyer a fixed rate of
** OMITTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST. ** per hour and
Buyer will supply Seller detailed documentation for all charges.
Section 16. TOOLING, UNIQUE MATERIALS OR EQUIPMENT
If design changes implemented pursuant to Sections 15 or 16 require
specific tooling, equipment or material different from that required for
Seller's manufacture of Products for Buyer and different from that required
for manufacture of Products for sale by Seller itself or by Seller to other
customers, Seller agrees to develop tooling as required by Buyer to achieve
appropriate Product differentiation. The parties will agree on an equitable
cost for such changes. Buyer reserves the right to review all tooling,
equipment or material and associated documentation at any time and reserves
the right to first piece article approval as may be specified by Buyer.
Section 17. QUALITY CONTROL PLANS AND GOALS
(a) At Buyer's request, Seller shall submit its documented quality plans
(each, a "Quality Plan") for Products to Buyer for review. If Buyer
reasonably determines that any Quality Plan is not adequate to assure that
the Products will meet the quality levels specified under Section 20 hereof
("Warranty: Epidemic Failures") or Buyer's desired level of quality (which
such desired level of quality shall be commercially reasonable), the
parties agree to discuss and resolve those elements of the Quality Plan
which Buyer has determined are not adequate.
(b) At such time as the parties shall agree, and at least twice per year,
Seller and Buyer shall review and discuss Seller's written plans and
proposals regarding the improvement of the Products' quality and the likely
effect of such plans and proposals. Seller shall use reasonable best
efforts to improve product quality such that Buyer experiences not less
than five percent (5%) per year reduction in service call rates due to
product quality.
Section 18. TRADEMARK
(a) The Products shall, except as otherwise provided below, bear only the
"Amana" trade names and/or trademarks. Any rights which may accrue from the
use of any such trademarks or trade names on such Products shall inure to
the sole benefit of Buyer.
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(b) Buyer shall defend any suit or proceeding and hold Seller harmless
against any and all claims, demands, costs or losses arising from any suit
or proceeding brought against Seller based on a claim of trademark
infringement by reason of Seller's proper and authorized use of any such
trademarks or trade names of any of the Products hereunder, and shall pay
all damages and costs awarded therein; provided Seller, upon receiving
notice thereof promptly notifies Buyer of such claim or the commencement of
any such suit, action, proceeding or objection or threats thereof, and
affords Buyer the opportunity, in its sole discretion, to determine the
manner in which such claim, suit, action, proceeding or objection shall be
handled or otherwise disposed of. Seller shall give Buyer the reasonable
cooperation Buyer requests in connection with the defense of any such suit,
action, proceeding or objection; provided that Buyer reimburses Seller for
all reasonable and direct costs and expenses incurred by Seller in
connection therewith.
(c) Notwithstanding the foregoing, Seller may be represented in any such
suit at its own expense and by its own counsel; provided however, that
Seller shall not consent to any judgement or decree in any such suit or pay
or agree to pay any sum of money or agree to do any other act in compromise
of any such claims of a third party except upon the prior written consent
of Buyer, which consent shall not be unreasonably delayed or withheld.
(d) It is understood and agreed that the names and trademarks of each of
the parties hereto shall remain such party's sole and exclusive property,
and neither Seller nor Buyer nor the divisions, subsidiaries, or affiliates
thereof shall use or authorize the use of trade names or trademarks on
Products covered by this contract which are so similar to the names or
trademarks of the other party as to be likely to cause confusion of origin
or otherwise deceive the public. Upon termination or expiration of this
Agreement, each party will, upon the request of the other, execute such
documents respecting the other's trademarks as might be necessary or
desirable to fully restore to the respective parties hereto any and all
rights which might inadvertently have been lost or jeopardized as a result
of operations under this Agreement.
(e) Buyer agrees not to use any trademarks or trade names of Seller on or
in connection with the Products, nor to refer to Seller or any of its
divisions, subsidiaries or affiliates in any of Buyer's promotional
literature or in any other advertising relating to the Products. Buyer will
take all reasonable acts to discourage any use of Seller's trademarks or
trade names by any dealer or distributor in connection with Products.
(f) Anything to the contrary notwithstanding, in the event any statute,
law, rule or regulation of any of the states or other jurisdictions in
which the Products are sold requires that the name of the manufacturer of
Products be indicated or manifested thereon, such identification as is
necessary to comply with such statute, law, rule or regulation may be
placed on the Products.
(g) Seller agrees not to use any of Buyer's trademarks or trade names on or
in connection with the Products except as permitted under this Agreement,
and not to sell or dispose of any Products bearing any of Buyer's
trademarks or trade names to any one other than Buyer, unless expressly
authorized in writing by Buyer.
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Section 19. PATENTS
(a) Seller hereby represents that, to the best of its knowledge, there are
no third party patent, trade secret, or copyright rights which would be
infringed by the manufacture, use or sale of the Products to be supplied
hereunder.
(b) Seller will defend any suit or proceeding brought against Buyer or its
customers, based on a claim that the manufacture, use or sale of any
Products purchased by Buyer from Seller hereunder constitutes an
infringement of any patent or copyright of any country or any trade secret
and shall pay all damages and costs awarded thereon against Buyer or
Buyer's customers; provided that Seller is notified in writing of such
claim and is furnished with the authority, information and assistance (at
Seller's expense) reasonably required by Seller for the defense of same.
If, as a result of any such suit or proceeding, the use or sale of any
Products purchased by Buyer from Seller hereunder is enjoined, Seller
shall, at its own expense and option, (i) procure the right for Buyer and
Buyer's customers to use and sell such products, (ii) replace the same with
interchangeable Products which have substantially the same quality and
performance but which are non-infringing, (iii) modify any infringing
products so they become non-infringing, or (iv) authorize Buyer to return
said enjoined Products and refund to Buyer the full purchase price and any
direct costs of Buyer associated with such return.
(c) Seller shall have no liability to Buyer and Buyer's customer as a
result of, and Buyer shall defend and hold Seller harmless against, any
such claims of infringement insofar as any such claim is found to arise
from the inclusion in Products purchased by Buyer from Seller hereunder of
designs provided by Buyer and incorporated in the Products.
(d) Nothing in this Agreement shall constitute or be construed as a grant
by one party to the other party of any right or license under any patent
(including any design patent or utility models) or any other proprietary
right or interest in any designs, design data, or "know-how" suggestions,
ideas or any other technical information (hereinafter collectively called
"Technical Information") disclosed by one party to the other hereunder, and
the disclosing party shall have the right, free of any claim for
compensation by the receiving party based on such disclosure, whether or
not such rights are subject to registration as identical property rights,
to patent, register, use, license, assign and alienate, in any manner
whatsoever as the disclosing party sees fit, any Technical Information
disclosed hereunder.
(e) The provisions of this Section 18 shall survive any termination of this
Agreement.
Section 20. CONFIDENTIAL INFORMATION
(a) The parties understand and agree that information concerning any of the
price and quantity terms or any information concerning the design,
manufacture or delivery of Products, whether such information is contained
in this Agreement (including Exhibit A attached hereto) or any Production
Order, Forecast or other communication between the parties pursuant hereto,
is confidential to each of them and shall, except as may otherwise
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be required by law or as may be permitted hereunder, be disclosed to third
parties, whether in writing or orally, only upon the specific prior written
consent of the other party; provided, however, that any of such terms which
have previously been disclosed for any of the foregoing reasons shall no
longer be treated as confidential by either party.
(b) The parties agree that during the effectiveness of this Agreement, each
party may disclose Technical Information or other information, suggestions,
or ideas relating to the Products, or to parts thereof, or to designs or
methods of manufacture, tests, or use thereof, to the other party to be
used in the manufacture of Product. Each party agrees that the receiving
party shall not, at any time during this Agreement or thereafter disclose
or release such information to third parties, without the prior written
authorization of the disclosing party. With respect to the receiving party,
the disclosing party's rights in connection with such information shall be
limited to such patent rights as it has or may hereafter obtain; provided
that the receiving party shall be granted a non-exclusive royalty-free
license to any patented information.
(c) Except as may be specifically required in order to source component
parts, equipment or tools for production of Product, Seller shall not
disclose Buyer as the purchaser of the Products nor advertise same in any
release. Seller shall be liable to Buyer for commercial damages resulting
from any non-permitted disclosure of such information.
(d) The execution of this Agreement or any action taken hereunder by Buyer
shall not constitute, nor in any way be construed as, an acknowledgment or
admission by Buyer of the validity or scope of any Technical Information
which may be supplied by Seller to Buyer during the term of this Agreement.
Section 21. WARRANTY: EPIDEMIC FAILURE
(a) Buyer shall be responsible for the administration and all costs
associated with Warranty; ** OMITTED PURSUANT TO CONFIDENTIAL TREATMENT
REQUEST. **
(b) An "Epidemic Failure" shall be considered to have occurred when, as a
result of defects in design or manufacture, at any time within one (1)
year from the date of sale of any Product to the ultimate user thereof:
(i) any single component of a Product shall fail in more than five
percent (5%) of the units of a model of Products; or
(ii) total failures for all causes exceed fifteen percent (15%).
(c) An Epidemic Failure shall be measured by comparing the number of
service calls, occurring within one (1) year from the date of sale to the
ultimate user, which require service, repair or replacement of any single
component or which result in a determination that a unit has failed from a
single cause, as a percentage of the total number of units of the specified
model sold during the preceding twelve (12) months.
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(d) "Buyer's Appliance Quality Performance Reports" shall be deemed to
be the basis for determination by Buyer of the fault call rate
experience of a particular model of the Products and Buyer's standard
procedures shall be employed in calculation of such rates. In
calculating the fault call rate, Buyer may include any Product in which
it has replaced or repaired parts or components because of a defect
therein, whether or not the Product totally or partially failed in
operation. Seller shall have the right to review and to audit, at any
time and upon reasonable notice, the Buyer's warranty administration
system and claim documentation.
(e) Buyer shall advise Seller of any potential claim for excessive
functional failures, as soon as practicable after such potential claim
becomes known. Reimbursement under this Agreement shall be made by
Seller not later than three (3) months after the submission of claim by
Buyer. Pursuant to a claim by Buyer, if Seller desires, Buyer's Quality
Performance Reports may be subject to review and audit by Seller or a
mutually acceptable independent third party at the expense of Seller.
(f) Notwithstanding any other provision of this Agreement, Seller
warrants that the Products and parts sold to Buyer by Seller under this
Agreement shall be of merchantable quality and shall be fit for the use
for which they were intended.
(g) The provisions of this Section 20 shall survive any termination of
this Agreement.
Section 22. REPLACEMENT PARTS
(a) Except as provided in subsection (e) Seller shall accept and fill
orders for replacement parts or workable substitutions for Products
manufactured under the terms of this Agreement for a period of not less
than seven (7) years from the date of last manufacture of each such
Product as to appearance parts, and for a period of not less than ten
(10) years from the date of last manufacture as to functional parts.
(b) General replacement parts currently in production shall be available
for delivery within a reasonable time, but in any event within a period
of forty-five (45) days after receipt by Seller of any order therefor
from Buyer. Replacement parts not currently in production shall be
available for delivery within a period of sixty (60) days after receipt
by Seller of any order therefor from Buyer.
(c) All replacement parts sold to Buyer for Products for the initial
term of the agreement will be invoiced ** OMITTED PURSUANT TO
CONFIDENTIAL TREATMENT REQUEST. **
(d) ** OMITTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST. ** Parts will
be packaged individually and marked according to Buyer's packing
instructions. Seller is responsible for proper identification of country
of origin in accordance with U.S. customs regulations.
-14-
(e) Buyer may, at its discretion, place orders for replacement parts
directly with Seller's suppliers unless Seller owns the tools or
equipment which the supplier would utilize for the manufacture of such
parts. Seller shall include sufficient information on all purchased
parts to enable Buyer to purchase the part from the original supplier,
including the original supplier's name, catalog number, and a complete
electrical or functional description, if applicable, and available to
Seller.
(f) When a particular model that Buyer purchases from Seller is
discontinued, or when running changes are made to a current model,
certain parts may become obsolete to Seller's production line. For
example, this may occur when model changes require alteration of tools,
dies, jigs or fixtures with the result that some parts can no longer be
produced for replacement purposes.
(i) In such cases, Seller will advice Buyer of those parts used
only on Buyer Product and give Buyer an opportunity to purchase
a "Lifetime Supply."
(ii) It will be Buyer's responsibility to advise Seller within
sixty (60) days of such notice of the number of replacement
parts required by Buyer for the future; and Seller will
manufacture or acquire the parts and Buyer will purchase the
number of parts required for its lifetime stock.
(iii) The balance of obsolete parts not purchased may be
disposed of at Seller's discretion and future orders will be on
a "per quote - if available" basis.
(g) Seller shall provide Buyer with:
(i) part drawings sufficient for inspection purposes for all
parts which Buyer desires to order. The drawings shall include
main assemblies, subassemblies, and detail drawings together
with a list of related parts (bill of materials). Materials,
finishes, dimensions, tolerances, and any other special
manufacturing specifications shall be clearly indicated. Seller
shall not substitute one part for another without prior Buyer
approval, if such substitute would effect form, fit or function;
(ii) for Buyer's cataloging of new models, Seller shall prepare
and deliver to Buyer Product Service exploded camera ready art,
positives and/or negatives, replacement parts list, including
exploded view of the Product and parts prices and two sets of
blueprints of Product. This material shall be delivered to Buyer
ninety (90) days prior to initial production of the finished
Product. For replacement parts, Seller shall furnish Buyer with
a reproducible current replacement parts list as product
changes; and
(iii) ** OMITTED PURSUANT TO CONFIDENTIAL TREATMENT REQUEST. **
(h) All replacement parts delivered are subject to inspection and evaluation
before final acceptance by Buyer and will be warranted as follows:
-15-
(i) All functional parts, components, and assemblies are
guaranteed against any defects in design, material, or
workmanship, for twelve (12) months from the date of shipment;
all non-functional parts, components, and assemblies are
guaranteed against any defects in design, material, or
workmanship for ninety (90) days from the date of shipment.
(ii) If any parts offered by Seller are defective in material
or workmanship, or do not conform to Seller's warranty, Buyer
shall have the option of:
(A) ** OMITTED PURSUANT TO CONFIDENTIAL TREATMENT
REQUEST. **
(B) Repairing or replacing the defective parts or non-
conformity. In such event, Seller shall bear all charges
incurred by Buyer including all costs of replacement
material and rework labor charges.
(iii) Seller shall be notified promptly of any and all rejects
and may examine and evaluate such defects within fifteen (15)
working days after receipt of notice. All rejects shall be held
at Seller's risk and expense, including all transportation, and
handling costs until returned to or corrected by Seller. Payment
for parts shall not constitute acceptance. Acceptance by Buyer
shall not relieve Seller of its warranty or any other
obligations under this Agreement.
(i) In the event of a fire, flood or other event which prevents Seller
from furnishing Buyer required proprietary parts, Seller shall permit
Buyer to have manufactured all proprietary parts or assemblies which
Buyer requires for as long as the Seller is not in a position to supply
them. In the event Seller is sold to or otherwise acquired by another
company, Seller shall require the acquiring company to assume all
obligations of Seller's company to supply replacement parts to Buyer.
Section 23. SERVICE AND SERVICE TRAINING MATERIALS.
Seller shall prepare and deliver to Buyer basic information on new
models or update basic information on revised models thirty (30) days
prior to initial production of finished Product. Service training
material shall include all necessary props or complete Products required
to effectively train field service personnel. ** OMITTED PURSUANT TO
CONFIDENTIAL TREATMENT REQUEST. **
-16-
Section 24. PRODUCT CERTIFICATION AND COMPLIANCE WITH LAW
(a) Seller shall be responsible for and shall take all necessary steps
to ensure that the Products comply with all applicable laws, rules and
regulations, including all laws, rules and regulations applicable in the
country to which Seller states that the Products are currently certified
for sale.
(b) In the event Buyer makes a request to Seller and provides Seller
with the applicable federal, state or local government specifications
and requirements, or in the event any governmental agency makes such
request or otherwise so requires, Seller shall determine and advise
Buyer in writing whether the Products covered in this Agreement conform
to the government specifications and standards applicable thereto;
provided that Seller is obligated to provide such information only with
respect to Products of which the expected annual purchase hereunder
exceeds the level sufficient to cause investigation by applicable
governmental authorities.
(c) Seller shall reimburse Buyer for any reasonable loss, expense, or
damages (including but not limited to attorney fees, overhead, and court
costs) which Buyer incurs as a result of its reliance upon information
provided by Seller with respect to such specifications, or upon any
determination or written advice respecting such specifications given by
Seller to Buyer, which prove to be untrue, incomplete or otherwise
misleading.
(d) The review or approval by Buyer of any designs, engineering
drawings, quality control procedures, testing of any Seller processes or
equipment by Buyer, or any other aspect of the design and manufacture of
Products hereunder shall in no way relieve Seller of the responsibility
for producing Products which are of good workmanship and performance and
of merchantable quality and fit for the purpose intended.
Section 25. HAZARDOUS CONDITIONS; PRODUCT RECALL
(a) In the event that Seller or Buyer learns of any issue relating to a
potential safety hazard or unsafe condition in the Products covered by
this Agreement or is advised of such by competent authorities of any
Government having jurisdiction over such Products, it will immediately
advise the other party by the most expeditious means of communication.
The parties shall cooperate in correcting any such condition that is
found to exist, but Seller shall remain responsible therefor and agrees
to reimburse, indemnify and hold Buyer harmless against all costs,
expenses, suits, claims, damages, including but not limited to attorney
fees, overhead, court costs and any other remedies which Buyer may have
under the Uniform Commercial Code in connection with this Section 24.
(b) In the event that any Products are found by Seller, Buyer or by any
governmental agency or court having jurisdiction to contain a defect,
serious quality or performance deficiency, or not be in compliance with
any standard or requirement so as to require or make advisable that such
Products be reworked or recalled, Seller will promptly communicate all
relevant facts to Buyer and undertake all corrective actions including
those required to meet all obligations imposed by laws, regulations, or
orders, and shall
-17-
file all necessary papers, corrective action programs and other related
documents; provided that Buyer shall cooperate with and assist Seller in
any such filing and corrective action, and provided that nothing
contained in this section shall preclude Buyer from taking such action
as may be required of it under any such law or regulation. Seller shall
perform all necessary repairs or modifications at its sole expense. The
parties recognize that it is possible that other Seller manufactured
products might contain the same defect or noncompliance condition as do
the Products for Buyer. Buyer and Seller agree that any recall involving
any Product shall be treated separately and distinctly from similar
results of Seller brand products; provided that such separate and
distinct treatment is lawful and that Seller shall in no event fail to
provide at least the same protection to Buyer on such Products as Seller
provides to its other customers in connection with such similar recalls.
Each party shall consult the other prior to making any statements to the
public or a governmental agency concerning issues relating to potential
safety hazards affecting the Products, except where such consultation
would prevent timely notification required to be given under any such
law or regulation.
Section 26. PRODUCT LIABILITY.
Seller agrees to protect, defend, hold harmless and indemnify and
reimburse Buyer and its distributors, dealers, affiliates and customers,
during the term of this Agreement and any time thereafter from and
against actual and direct liability, claim, cost or expense (including
but not limited to attorneys, fees, overhead, and court costs) arising
out of actual or alleged death or of injury, to any person, or damage to
tangible property, by whomever suffered, arising out of or alleged to
arise out of (1) any failure of Products to comply with applicable
specifications, warranties and certificates under this Agreement; (2)
the negligence of Seller in design, manufacture or otherwise with
respect to Products or parts therefor; or (3) claims based on product
liability, with respect to allegedly defective Products or part thereof.
Seller shall have the sole and exclusive right to defend against any and
all such suits, actions, proceedings, investigations, demands and
claims.
Section 27. ASBESTOS, AND PCB.
Seller certifies, based on Seller's qualitative determination, that the
Products or parts thereof do not contain asbestos or PCB's at this time
and Seller will not introduce into the Products or replacement
components any parts that contain asbestos or PCB's.
Section 28. COMPLIANCE WITH LAWS.
Seller agrees to comply with the applicable provisions of any federal,
state or local law or ordinance and all orders, rules and regulations
issued thereunder. Any provisions, representations or agreements
required thereby to be included in the Agreement resulting from
execution of this Agreement are incorporated herein by reference. Seller
will, if requested, furnish any certifications of compliance required by
law or regulation.
Section 29. WORK ON OTHER PARTY'S PREMISES.
-18-
Buyer's representative shall, upon giving Seller advance notice, have
reasonable access to Seller's premises during working hours to observe
work in progress and to perform an audit on the implementation of any
quality control requirements. The parties shall take all necessary
precautions to prevent injury to person or property during the progress
of work and shall indemnify each other and such other's successors,
assigns, agents, employees and customers against all loss which may
result in any way from any act or omission of either party, agents,
employees, or subcontractors. Performance of audits or testing of
equipment or procedures shall not relieve Seller of any responsibility
under quality requirements or warranty provisions.
Section 30. FURTHER ASSURANCES.
Buyer hereby agrees to cooperate with Seller in connection with all
matters relating to this Agreement.
Section 31. FURTHER ASSURANCES.
Buyer hereby agrees to cooperate with Seller in connection with all
matters relating to this Agreement.
Section 32. ASSIGNMENT.
Neither this Agreement, nor any of the rights or interests of Buyer or
Seller hereunder may be assigned, transferred or conveyed by operation
of law or otherwise without the prior written consent of the other
party, except to an affiliate of the transferring party or, in the case
of Seller, to any party to which all or substantially all of the assets
and businesses of Seller are also, directly or indirectly, transferred
or conveyed by operation of law at the same time.
Section 33. TERMINATION.
In addition to the other provisions for termination contained in this
Agreement, this Agreement may be terminated by either party at any time
for any material breach of this Agreement provided that the party
desiring termination gives thirty (30) days prior written notice of the
same to the other party, specifying the claimed breaches. Such
termination shall be effective thirty (30) days from the date of receipt
of said notice if the specified breaches are not cured before the
effective date or reasonable steps have not been taken before the
effective date to effectuate a cure within a reasonable period of time.
Notwithstanding the foregoing, either party may terminate this Agreement
by written notice to the other party effective immediately in the event:
(a) either party knowingly submits to the other false or fraudulent
reports, statements or claims for any credit or payment;
(b) either party shall become insolvent or bankrupt or admit in writing
its inability to pay debts as they become due;
(c) either party makes an assignment for the benefit of credit whether
voluntary or involuntary;
-19-
(d) a petition is filed by or against either party under the Bankruptcy
Act; or
(e) either party ceases to do business as a going concern.
Except for payments of amounts due hereunder and the continuing
obligations provided for hereunder, neither Buyer nor Seller shall, by
reason of the termination, expiration or non-renewal of this Agreement
be liable to the other for any damages or injunctive relief of any
kind, including but not limited to, compensation, reimbursement or
damages on account of loss of prospective profits on anticipated sales,
or on account of expenditures, investments, losses or commitment in
connection with the business or goodwill of Buyer or Seller; provided
however, that if as a result of termination Seller shall have unused
unique Buyer parts manufactured or procured for firm orders received
from Buyer prior to such termination, Buyer shall purchase such parts
from Seller at the then-current prices for such parts within thirty (30)
days after such termination
Section 34. GOVERNING LAW.
This Agreement and the relations between the parties under it shall be
construed in accordance with the substantive law of the State of New
York. In enforcing this contract, the parties may initiate proceedings
in any appropriate jurisdiction as they deem fit. The service of any
writ or summons or any legal process in respect to any such action or
proceeding may be effected by forwarding a copy of the writ of summons
or statement of claim or other legal process by prepaid letter to the
address of the parties in the Notice provision below.
Section 35. NOTICES.
Any notice, request, consent, demand or other communication given or
required to be given under this Agreement shall be effective only if in
writing and delivered personally or mailed by first class registered or
certified mail, postage prepaid, return receipt requested, telex or
faxed, addressed to the respective addresses of the parties as follows:
Notices to Buyer:
Raytheon Commercial Laundry, LLC
Shepard Street
Ripon, WI 54971
ATTN: President
Fax: (414) 748-4334
Notices to Buyer:
Goodman Manufacturing Company, L.P.
1501 Seamist Drive
Houston, TX 77008
ATTN: President
Fax: 713-861-7972
Section 36. SURVIVAL OF RIGHTS OF PARTIES.
-20-
The termination of this Agreement shall not release either party from
any liability, obligation or agreement which, pursuant to any provision
of this Agreement, is to survive or be performed after such expiration
or termination.
Section 37. SUBJECT HEADINGS.
The subject headings of this Agreement have been placed thereon for the
convenience of the parties only and shall not be considered in any
question of interpretation or construction of this Agreement.
Section 38. WAIVER.
The failure of either party to enforce at any time or for any period of
time any provision, of this Agreement shall not be construed as a waiver
of such provision or of the right of such party thereafter to enforce
such provision.
Section 39. ENTIRE AGREEMENT.
(a) All agreements between Buyer and Seller for the sale of the Products
by Seller to Buyer shall include and be governed exclusively by the
terms and conditions set forth in this Agreement, except as the parties
may otherwise agree in writing duly executed by their respective duly
authorized representatives which expressly references this Agreement. In
case of any conflict between this Agreement and any Production Order,
purchase order, acceptance, correspondence, memorandum, or document for
or relating to the Products exchanged by Buyer and Seller during the
term of this Agreement which is not executed by duly authorized
representatives of both parties, this Agreement shall govern and
prevail. Any printed terms and conditions of any such documents shall,
in any event, be deemed deleted and shall not be binding upon the
parties.
(b) The foregoing contains the entire and only agreement between the
parties respecting the manufacture of Products and sale thereof by
Seller to Buyer and the purchase by Buyer from Seller of such Products.
All prior and collateral representations, promise or conditions in
connection with the subject matter are merged herein. Any
representation, promise or condition not incorporated herein shall not
be binding upon either party.
-21-
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed in duplicate as of the date first above written.
RAYTHEON COMMERCIAL LAUNDRY LLC
BY: /s/ Bruce P. Rounds
-----------------------------------
Title: VICE PRESIDENT BUSINESS
DEVELOPMENT & SECRETARY
AMANA COMPANY, L.P.
BY: Goodman Holding Company,
General Partner
BY:
-----------------------------------
Title: Vice Chairman
-22-
EXHIBIT A
** Certain material herein omitted pursuant to a confidential treatment
request that has been filed separately with the Commission **
Commercial Laundry Products
Unit Transfer Prices
From 1/1/98
Prod. Class Jupiter Model # From Closing Thru 12/31/97 Thru First Year of Agreement
- -------------- ----------------------- ------------------------------- -------------------------------
Cmcl Elec HDE007WA1702
Cmcl Elec HDE107WA1502
Cmcl Elec HDE107WA1702
Cmcl Elec SDE007WA
Cmcl Elec SDE007WA1500
Cmcl Elec SDE007WA3000
Cmcl Elec SDE107LA
Cmcl Elec SDE107WA
Cmcl Elec SDE107WA5412
Cmcl Elec SDE507WA
Cmcl Elec UDE007WA
Cmcl Gas HDG109LA
Cmcl Gas HDG109WA
Cmcl Gas HDG109WA1102
Cmcl Gas HDG509WA1102
Cmcl Gas SDG009WA
Cmcl Gas SDG109LA
Cmcl Gas SDG109WA
Cmcl Gas SDG309WA
Cmcl Gas SDG509LA
Cmcl Gas SDG509WA
Home Elec LKE33AW-4350
Home Elec LES33AW-4562
Stack Elec SSE007WA
Stack Elec SSE107LA
Stack Elec SSE107WA1500
Stack Elec SSE117WA
Stack Elec SSE307WA
Stack Elec SSE507WA
Stack Gas SSG009WA
Stack Gas SSG109LA
Stack Gas SSG109WA
Stack Gas SSG119LA
Stack Gas SSG119WA
Stack Gas SSG309LA
Stack Gas SSG309WA
Stack Gas SSG509LA
Stack Gas SSG509WA
Stack Gas SSG519LA
Stack Gas SSG709WA
(End of List)
RAYTHEON APPLIANCES - COMMERCIAL LAUNDRY
LIST OF SEARCY PART TRANSFERS TO MADISONVILLE
Part No. Description IF/IR STS WHERE USED
- ------------ ----------------------------------------------- -------- -------- -----------------------------------
430992 CABINET, SIDE-L.H. IF 1 STACK TUMBLER
430993 CABINET, SIDE-R.H. IF 1 STACK TUMBLER
430998 PANEL, FRONT-TOP IF 1 STACK TUMBLER
431056N PANEL, FRONT-TOP-SS IF 1 STACK TUMBLER
431241 PANEL, FRONT-BOTTOM IF 1 STACK TUMBLER
431281 BASE, SYSTEM 90 IF 1 STACK TUMBLER
431286N PANEL, FRONT-BOTTOM-SS EC IF 1 STACK TUMBLER
503017 BRACKET, TIMER IF 1 30# TUMBLER
61031 EXTENSION, COIN SLIDE IF 1 30# TUMBLER
M413234 ASSY, METERCASE IF 1 30# TUMBLER
430110 PANEL, FRONT-TOP IF 2 SERVICE ONLY-TUMBLER
430129 PANEL, FRONT-BOTTOM IF 2 SERVICE ONLY-TUMBLER
431057N PANEL, FRONT-BOTTOM-SS IF 2 SERVICE ONLY-TUMBLER
60977 EXTENSION, FRONT-COIN VAULT IR 2 SERVICE ONLY-TUMBLER
03203 SCREW, 8-32 X 3/8 ROUND HEAD IR 1
03950 SCREW, 10-32 X 5/16 SEMS RD HD IR 1
33561 SCREW, 8-1/2 INDENT WASHER HEAD IR 1
40171 MISC-.015X .375X C STRAPPING IR 1
500240 LABEL, NAT/LP GAS IR 1
500240R2 LABEL, NAT/LP GAS IR 1
500730 SIGNAL, ROTARY IR 1
500823 SIGNAL, ROTARY IR 1
501086 SCREW, 8B X 3/8 IND HEX HD TAPP IR 1
502499 BUZZER, ADJUSTABLE 24 VAC IR 1
503382 LABEL, GAS PRESSURE IR 1
503492 LABEL, GAS DESTINATION IR 1
52113 RELIEF, STRAIN IR 1
53240 CAM, TIMING-3 PIN-60 MINUTE IR 1
56156 NUT, 3/8-16 SERRATED IR 1
62588 SCREW, #10 12 X 1 HX TYP B ZN IR 1
IF= Manufactured Parts manufactured or purchased
IR= Purchased by Searcy and sent to Madisonville.
-2-
EXHIBIT B
COMMERCIAL JUPITER & HORIZON SCHEDULES
- -------------------------------------------------------------
| | 1997 | 1998 |
| |---------------------------|
| PROJECT |AMJ|JAS|OND|JFM|AMJ|JAS|OND|
|-----------------------------------------------------------|
|Jupiter - Commercial CE Models |XXX|XX | | | | | |
| | | | | | | | |
|Coin Slide Horizon - | | | | | | | |
| (Front Controls) |XXX|XXX|X | | | | |
| | | | | | | | |
|Colin Slide Jupiter - | | | | | | | |
| (Front Controls) |XXX|XXX|X | | | | |
| | | | | | | | |
|Coin Slide Horizon/ | | | | | | | |
| Jupiter Stack |XXX|XXX|XX | | | | |
| | | | | | | | |
|EDC Horizon - (Front Controls) | | | | | | | |
| - Coin-op Models | |XXX|XXX|XXX|X | | |
| - Card-op Models | |XXX|XXX|XXX|X | | |
| | | | | | | | |
|EDC Horizon/Jupiter Stack | | | | | | | |
| - Coin op Models | |XXX|XXX|XXX|XX | | |
| - Card op Models | |XXX|XXX|XXX|XX | | |
| | | | | | | | |
|EDC Horizon - 50Hz - CE - | | | | | | | |
| (Front Controls) | | | | |XXX|XXX|X |
| | | | | | | | |
|EDC Jupiter - 50Hz - CE - | | | | | | | |
| (Front Controls) | | | | |XXX|XXX|X |
- -------------------------------------------------------------
EXHIBIT C
** Certain material herein omitted pursuant to a confidential treatment
request that has been filed separately with the Commission **
HOME JUPITER & HORIZON SCHEDULES
- -------------------------------------------------------
| ENG. | CAP. | PROJECT | 1997 | 1998 |
| EXP. | | |---------------------------|
| | | |AMJ|JAS|OND|JFM|AMJ|JAS|OND|
|-----------------------------------------------------|
| ** OMITTED PURSUANT TO CONFIDENTIAL |
| TREATMENT REQUEST. ** |
- -------------------------------------------------------