EXHIBIT 99.3
INDENTURE, BILL OF SALE AND ASSIGNMENT
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INDENTURE, BILL OF SALE AND ASSIGNMENT, made, executed and delivered
as of February 16, 2001 by Connell Limited Partnership, a Delaware limited
partnership (herein called "Grantor"), in favor of APW Mayville, LLC, a Delaware
limited liability company (herein called "Grantee").
WHEREAS, Grantor, Grantee and APW Ltd., a Bermuda company ("APW"), are
the parties to an 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 sale, transfer, conveyance, assignment and delivery to Grantee of the entire
right, title and interest of Grantor in the Assets and the business of the
Division, for consideration in the amount and on the terms and conditions
provided in the Asset Purchase Agreement (capitalized terms used and not
otherwise defined in this Indenture, Bill of Sale and Assignment shall have 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, Grantor's execution and
delivery to Grantee of this Indenture, Bill of Sale and Assignment; and
WHEREAS, this Indenture, Bill of Sale and Assignment 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 Grantor in hand paid by APW or Grantee, at or before the
execution and delivery hereof, the receipt and sufficiency of which by Grantor
is hereby acknowledged, Grantor hereby agrees as follows:
Section 1. Pursuant to Section 3.1 of the Asset Purchase Agreement
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and on the terms and conditions provided in the Asset Purchase Agreement,
Grantor by this Indenture, Bill of Sale and Assignment, does hereby sell,
assign, transfer, convey and deliver to Grantee all of Grantor's entire right,
title and interest in all of the assets, properties, rights, claims and
privileges of every nature and description of the Division, whether or not
reflected in the Financial Statements, as they exist as of the Closing,
including, without limitation, all of Grantor's entire right, title and interest
in the following:
(a) all "Accounts receivable," "Inventories," "Other current assets"
and "Property, plant and equipment" of the Division reflected on the Closing
Balance Sheet;
(b) all registered or unregistered trademarks, trade names, service
marks and logos and all patents, inventions, ideas, algorithms, software,
copyrights, schematics, technologies, drawings, specifications, know-how, trade
secrets and any other proprietary rights that are used in the conduct of the
business of the Division as currently conducted, and all licenses to,
registrations of, or applications to register any of the foregoing;
(c) all leases of personal property of the Division;
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(d) the Material Contracts, and all other agreements of the Division
and all claims, causes of action, refunds, rights of recovery, rights of setoff
and rights of recoupment of any kind against, relating to or pursuant to any of
such Material Contracts or other agreements;
(e) all books and records of the Division, including the customer and
supplier lists, and all proprietary and non-proprietary information of the
Division;
(f) except as otherwise provided in Section 3.2(b) of the Asset
Purchase Agreement, all credits, prepaid expenses, deferred charges, advance
payments, security deposits, prepaid items and duties of the Division;
(g) to the extent their transfer is permitted by law, all
authorizations of Governmental Agencies of the Division;
(h) all goodwill and similar intangible property of the Division;
(i) all warranties, representations, and guarantees made by suppliers,
manufacturers and contractors of the Division to the extent transferable to
Grantee;
(j) all telephone, fax, pager and mobile phone numbers of the Division
and all email addresses, internet connections and uniform resource locators, or
"URLs," and websites owned, licensed or leased by the Division, to the extent
assignable;
(k) all insurance, warranty and condemnation proceeds of the Division;
(l) all claims of the Division necessary to assure Grantee full title,
ownership and possession of the Assets after the Closing;
(m) all tangible assets of the Division, including, without
limitation, those set forth on Schedule 1(m);
(n) all intangible assets of the Division; and
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(o) any other assets of Seller used primarily in connection with the
day-to-day operation, as opposed to the supervision, of the Division;
provided, however, that the Assets shall not include, and the Excluded Assets
shall include, Grantor's right, title and interest in any of the items referred
to in Sections 1(f), (i), (k), (l) or (o) if and to the extent that such right,
title or interest relates to any of the Excluded Assets or any of the Excluded
Liabilities.
Section 2. Grantor hereby constitutes and appoints Grantee, its
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successors and assigns, as Grantor's true and lawful attorney and attorneys,
with full power of substitution, in Grantor's name and stead, but on behalf and
for the benefit of Grantee, its successors and assigns, to demand and receive
any and all of the Assets, and to give receipts and releases for and in respect
of the same, and any part thereof, and from time to time to institute and
prosecute in Grantor's name, or otherwise, for the benefit of Grantee, its
successors and assigns, any and all proceedings at law, in equity or otherwise,
which Grantee, its successors or assigns, may deem proper for the collection or
reduction to possession of any of the Assets or for the collection and
enforcement of any claim or right of any kind hereby sold, conveyed, transferred
and assigned, or intended so to be, Grantor hereby declaring that the foregoing
powers are coupled with an interest and are and shall be irrevocable by Grantor
or by its dissolution or in any manner or for any reason whatsoever.
Section 3. Grantor further authorizes Grantee, its successors and
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assigns, to receive and open all mail, telegrams and other communications, and
all express or other packages, addressed to Grantor or to any of its officers
and to retain the same insofar as they relate to the Division, but any such
mail, telegrams, communications or express or other
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packages not relating to the Division shall be forwarded with reasonable
dispatch to the address of Guarantor as set forth in Section 16.5 of the Asset
Purchase Agreement. The foregoing shall constitute full authorization to the
postal authorities, all telegraph and express companies and all other persons to
make delivery of such items to Grantee. Effective upon Closing, Grantor shall
implement procedures in its bank sweep accounts to promptly redirect to
Grantee's account (as set forth in a written notice by Grantee to Grantor) by
wire transfer funds received from Applied Materials, Inc., during the six month
period following the Closing.
Section 4. Subject to the terms and conditions of the Asset Purchase
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Agreement, Grantor hereby covenants that, from time to time after the delivery
of this Indenture, Bill of Sale and Assignment, at Grantee's request and without
further consideration, Grantor will do, execute, acknowledge and deliver, or
will cause to be done, executed, acknowledged and delivered, all such further
acts, deeds, transfers, conveyances, assignments, powers of attorney and
instruments of further assurances as may reasonably be necessary or appropriate
to carry out the provisions of this Indenture, Bill of Sale and Assignment, and
to put Grantee in possession of, any of the Assets and, in the case of contracts
and rights, if any, which cannot be effectively transferred to Grantee without
the consent of third parties, to endeavor to obtain such consents promptly and
if any be unobtainable, to use its best efforts to assure to Grantee the
benefits thereof (provided, that Grantee shall agree to perform the obligations
of Grantor arising thereunder to the extent Grantee has control over the
resources required to do so).
Section 5. Nothing in this Indenture, Bill of Sale and Assignment,
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express or implied, is intended or shall be construed to confer upon, or to give
to, any person, firm or corporation other than Grantee and its successors and
assigns, any remedy or claim under or by
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reason of this Indenture, Bill of Sale and Assignment or any terms, covenants or
conditions hereof, and all the terms, covenants and conditions, promises and
agreements contained in this Indenture, Bill of Sale and Assignment shall be for
the sole and exclusive benefit of Grantee and its successors and assigns.
Section 6. This Indenture, Bill of Sale and Assignment is executed by
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Grantor and Grantee, and shall be binding upon, Grantor, Grantee and their
respective successors and assigns, for the uses and purposes above set forth and
referred to, effective immediately upon its delivery to Grantee.
Section 7. This Indenture, Bill of Sale and Assignment 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.
IN WITNESS WHEREOF, Grantor has caused this Indenture, Bill of Sale
and Assignment to be signed by its duly authorized officer as of the date first
written above.
CONNELL LIMITED PARTNERSHIP
Attest: By: Its General Partner
CONNELL INDUSTRIES, INC.
By /s/ Kathleen A. Murphy By /s/ John V. Curtin
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Name: Kathleen A. Murphy Name: John V. Curtin
Title: Sr. Vice President Title: Vice President
Agreed and accepted as
of the date first
written above.
APW MAYVILLE, LLC
By /s/ Joseph T. Lower
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Name: Joseph T. Lower
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 Connell Limited Partnership, a
Delaware limited partnership, and that said instrument was signed on behalf of
such partnership by authority of its general partner, and [ ] and [ ]
acknowledged said instrument to be the free act and deed of such partnership.
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NOTARY PUBLIC