Transfer of Assets and Assumption of Liabilities (a) On or prior to the Effective Time, but in any case prior to the Distribution, in accordance with the Plan of Reorganization:
Assumption of Assumed Liabilities (a) Except as expressly provided in Section 2.4(b), the Purchaser shall not assume, in connection with the transactions contemplated hereby, any liability or obligation of either Seller whatsoever, whether known, unknown, absolute, contingent or otherwise, and whether accrued or unaccrued.
(b) Subject to the foregoing Section 2.4(a), effective as of the Closing Date, the Purchaser shall assume the following liabilities and obligations of the Sellers arising out of the use, ownership or operation of the Business, the Facilities or the other Assets (collectively, the “Assumed Liabilities”):
(i) the obligations of the Sellers under (x) each Assumed Contract, related to the rights under each Assumed Contract assigned to the Purchaser under the Assignment and Assumption Agreement, (y) each JWWTP Agreement to the extent assigned to the Purchaser under the Assignment (JWWTP Agreements) and (z) each License included in the Assets required to be performed on or after the Closing Date;
(ii) all accounts payable, accrued expenses and other current liabilities of the Sellers related to the Business and accrued or existing as of the Closing Date, but only to the extent included in the determination of Final Net Working Capital;
(iii) all liabilities and obligations, known or unknown, relating to, resulting from, arising out of or in connection with, directly or indirectly, (A) events that occur, (B) services performed or products manufactured or sold, or (C) the ownership, operation or use of the Business and the Assets, in each case, from and after the Closing;
(iv) liabilities and obligations relating to or arising from physical or bodily injuries to, or damage to the property of, third parties that occur from and after the Closing to the extent caused by the physical condition of the Assets (which are being transferred as-is, where-is);
(v) liabilities arising in connection with any severance plan established by the Purchaser on or after the Closing Date; and
(vi) liabilities under any of the CBAs or any other collective bargaining agreement or other labor arrangement, including any grievances, to the extent arising from any act or omission after the Closing.
Merger or Consolidation Transfer of Assets If the Owner Trustee merges or consolidates with, or transfers its corporate trust business or assets to, any Person, the resulting, surviving or transferee Person will be the successor Owner Trustee so long as that Person is qualified and eligible under Section 9.1. The Owner Trustee will (i) notify the Issuer and the Administrator (who will notify the Rating Agencies) of the merger or consolidation within 15 Business Days of the event and (ii) file a certificate of amendment to the Certificate of Trust as required by Section 9.3(e).
Sale and Transfer of Assets On the terms and subject to the conditions set forth in this Agreement, at the Closing, the Sellers shall sell, convey, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept from the Sellers free and clear of any Liens, other than Permitted Liens, all of the Sellers' right, title and interest at the Closing in and to all of the properties, assets and rights of every kind and description, whether accrued, contingent or otherwise, exclusively related to or exclusively used or held for use in connection with the Business (other than the Excluded Assets), including all assets (other than Excluded Assets) that may have been acquired by the Sellers for use exclusively in connection with the Business between the date hereof and the Closing Date (which shall be collectively referred to herein as the "Purchased Assets"), except for any such assets which may be disposed of, or sold or consumed prior to the Closing Date in the ordinary course of business. The Purchased Assets shall include, without limitation, all of the Sellers' right, title and interest at the Closing in and to all the following (except to the extent they constitute Excluded Assets):
(a) all Intellectual Property owned or licensed by each Seller and used in or relating exclusively to the conduct of the Business as set forth on Schedule 2.1(a);
(b) all Contracts (other than Excluded Contracts) used in or relating exclusively to the conduct of the Business as set forth on Schedule 2.1(b) to which each Seller is a party (collectively, the "Assumed Contracts");
(c) all rights of each Seller in and to the real property leases used in or relating exclusively to the conduct of the Business, together with all fixtures and other improvements thereon ("Leases"), including the Leases as set forth on Schedule 2.1(c);
(d) all accounts receivable, trade receivables and other amounts owing from customers and clients of each Seller;
(e) all books, records, customer lists, vendor lists, supplier lists, cost and pricing information, business plans, quality control records and manuals, blueprints, research and development files, used in or relating exclusively to the conduct of the Business;
(f) all personal computers, computer hardware and software of each Seller used in or relating exclusively to the conduct of the Business;
(g) all inventory used in or relating exclusively to the conduct of the Business, including without limitation, goods, goods-in-transit, supplies, containers, packaging materials, raw materials, work-in-progress, finished goals, samples and other consumables of each Seller;
(h) all Permits of each Seller used in or relating exclusively to the conduct of the Business set forth on Schedule 2.1(h);
(i) all tangible personal property, including all machinery, vehicles, tools, equipment, furnishings, office equipment, communications equipment, storage tanks, fixtures, furniture, spare and replacement parts, fuel and other tangible property used in or relating exclusively to the conduct of the Business owned or leased by each Seller, including without limitation, as set forth on Schedule 2.1(i);
(j) all sales support, sales collateral, promotional materials, advertising materials and productions, sales and marketing files (whether in print or electronic format) including all past and present promotion copy and promotion copy data bases, web images, web copy, and advertising and direct marketing materials of each Seller used in or relating exclusively to the conduct of the Business;
(k) all rights, claims (other than Post-Closing Claims), credits, causes of action or rights of set-off against third parties relating exclusively to the Business or affecting any of the Purchased Assets, including, to the extent transferable, claims pursuant to under any manufacturer's warranties, representations and guarantees made by suppliers, manufactures, contractors and other third parties in connection with products or services purchased by or furnished to either Seller used in or relating exclusively to the conduct of the Business or affecting any of the Purchased Assets;
(l) all of the issued and outstanding membership interests of Hanford LLC and all of the capital stock of FWENC Massachusetts and FWENC Ohio;
(m) all prepaid items and advance payments including, without limitation, credits, charges and prepaid expenses of each Seller used in or relating exclusively to the conduct of the Business and all loans and other advances owing by each Transferred Employee to either Seller, but excluding any cash, cash equivalents and other short term investments of the Sellers and their Subsidiaries;
(n) all cash security deposits and xxxxxxx deposits placed with each Seller and with each of its Subsidiaries for the performance of an Assumed Contract or agreement which otherwise constitute a portion of the Purchased Assets;
(o) to the extent available, all lists of present customers of the Business, all accounts receivable and notes receivable together with any unpaid interest or fees accrued thereon, or other amounts due with respect thereto of each Seller and any security or collateral therefore including recoverable advances and deposits; and
(p) the Business as a going concern, including goodwill.
Assumption of Liabilities (a) At the closing, Purchaser shall assume and become responsible for, and shall thereafter pay, perform, and discharge as and when due, only the following liabilities (collectively, the “Assumed Liabilities”):
(i) Seller’s trade payables related to the Business and reflected on either the Estimated Working Capital Statement or the Closing Date Working Capital Statement, but only to the extent incurred by Seller within 45 days prior to Closing;
(ii) those certain accrued expenses (other than expenses that are Retained Liabilities) of Seller related directly to the operation of the Business set forth in the accounts listed on Schedule 2.3(a)(ii), but only to the extent incurred by Seller within 45 days prior to Closing; and
(iii) all liabilities and obligations of Seller arising on or after the Closing Date under the Contracts listed on Schedule 2.3(a)(iii) (the “Assumed Contracts”), other than Retained Liabilities.
(b) Notwithstanding anything to the contrary contained in Section 2.3(a), Purchaser shall not assume, and shall have no liability under or by reason of this Agreement for any obligations, duties, or liabilities relating to Seller’s operation of the Business other than the Assumed Liabilities, including, without limitation, any of the following (collectively, the “Retained Liabilities”):
(i) all accrued expenses of Seller not included in Section 2.3(a)(ii), including the accounts set forth on Schedule 2.3(b)(i);
(ii) any liability related to Benefit Plans of Seller;
(iii) any product liability or warranty claims (express or implied) of third parties (including any Affiliate of Seller) arising out of or relating to products provided, or sold by Seller prior to the Closing Date;
(iv) any liability under any Assumed Contract that arises out of or relates to any breach or violation that occurred prior to the Closing Date;
(v) any liability that arises out of or relates to obligations for the repayment of Debt by Seller or any Affiliate;
(vi) any liability under any Contract that is not an Assumed Contract;
(vii) any liability of any Person, except for the Assumed Liabilities of Seller;
(viii) any liability for COBRA continuation for any employee of Seller with a qualifying event prior to the Closing Date;
(ix) any liability for workers’ compensation claims incurred prior to the Closing Date;
(x) any liability not directly related to the ownership of the Purchased Assets and/or not incurred in the Ordinary Course of Business;
(xi) any liability of Seller or any Member arising out of or relating to the execution, delivery, or performance of this Agreement or any Ancillary Agreement;
(xii) any liability of any Member or Seller arising from or relating to any action taken by Seller, or any failure on the part of Seller to take any action, at any time after the Closing Date;
(xiii) any liability of Seller arising from or relating to any claim or proceeding against Seller pending on or incurred prior to the Closing Date, including, without limitation, those proceedings set forth on Schedule 5.8 ;
(xiv) any liability of Seller or any Member for the payment of any Tax, including, without limitation, for the Taxes (A) of any other Person, whether as transferee, successor, by contract or otherwise, including Interpoint Partners, Inc., a California corporation, and Interpoint Partners, LLC, a California limited liability company, and (B) resulting from, or arising in connection with, the transactions contemplated by this Agreement, and (C) Taxes with respect to the Purchased Assets arising on or prior to the Closing Date or with respect to any Tax periods (or portions thereof) ending on or prior to the Closing Date;
(xv) any liability or obligation of any Person relating to a Hazardous Substance in connection with the Business or the Leased Real Property that arises out of or relates to any action that occurred prior to the Closing Date;
(xvi) any liability of Seller to any Affiliate of Seller or any Affiliate of any Member, including but not limited to any liability arising out of or related to any loans, management fees, and any accrued interest related thereto, from or owed to any Affiliate of Seller or any Affiliate of any Member;
(xvii) any liability under any Assumed Contract, if either (A) Seller shall not have obtained or (B) Purchaser shall not have waived in writing Seller’s obligation hereunder to obtain, on or prior to the Closing Date, any consent required to be obtained by the terms of such Assumed Contract from any Person with respect to the assignment or delegation to Purchaser of any rights or obligations under such Assumed Contract;
(xviii) any liability that is inconsistent with or constitutes an inaccuracy in, or that arises or exists by virtue of any breach of, (A) any representation or warranty made by Seller or any Member in this Agreement or any Ancillary Agreement, or (B) any covenant or obligation of Seller or any Member contained in this Agreement or any Ancillary Agreement; or
(xix) any liability of Seller arising from the termination of the employment of Xxxxx Xxxxx or Xxxxx Xxxxxxxxx.
Consolidation, Merger or Sale or Transfer of Assets, Cash Flow or Earning Power (a) In the event that, following the Stock Acquisition Date, directly or indirectly, (x) the Company shall consolidate with, or merge with and into, any other Person (other than a Subsidiary of the Company in a transaction which complies with Section 11(o) hereof), and the Company shall not be the continuing or surviving corporation of such consolidation or merger, (y) any Person (other than a Subsidiary of the Company in a transaction which complies with Section 11(o) hereof) shall consolidate with, or merge with or into, the Company, and the Company shall be the continuing or surviving corporation of such consolidation or merger and, in connection with such consolidation or merger, all or part of the outstanding shares of Common Stock shall be changed into or exchanged for stock or other securities of any other Person or cash or any other property, or (z) the Company shall sell or otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise transfer), in one transaction or a series of related transactions, assets, cash flow or earning power aggregating more than 50% of the assets, cash flow or earning power of the Company and its Subsidiaries (taken as a whole) to any Person or Persons (other than the Company or any Subsidiary of the Company in one or more transactions each of which complies with Section 11(o) hereof), then, and in each such case, proper provision shall be made so that: (i) each holder of a Right, except as provided in Section 7(e) hereof, shall thereafter have the right to receive, upon the exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, such number of validly authorized and issued, fully paid, non-assessable and freely tradeable shares of Common Stock of the Principal Party (as such term is hereinafter defined), not subject to any liens, encumbrances, rights of first refusal or other adverse claims, as shall be equal to the result obtained by (1) multiplying the then current Purchase Price by the number of one one-thousandths of a share of Preferred Stock for which a Right is exercisable immediately prior to the first occurrence of a Section 13 Event (or, if a Section 11(a)(ii) Event has occurred prior to the first occurrence of a Section 13 Event, multiplying the number of such one one-thousandths of a share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event by the Purchase Price in effect immediately prior to such first occurrence of a Section 11(a)(ii) Event), and (2) dividing that product (which, following the first occurrence of a Section 13 Event, shall be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the Current Market Price (determined pursuant to Section 11(d)(i) hereof) per share of the Common Stock of such Principal Party on the date of consummation of such Section 13 Event; (ii) such Principal Party shall thereafter be liable for, and shall assume, by virtue of such Section 13 Event, all the obligations and duties of the Company pursuant to this Agreement; (iii) the term “Company” shall thereafter be deemed to refer to such Principal Party, it being specifically intended that the provisions of Section 11 hereof shall apply only to such Principal Party following the first occurrence of a Section 13 Event; (iv) such Principal Party shall take such steps (including, but not limited to, the reservation of a sufficient number of shares of its Common Stock) in connection with the consummation of any such transaction as may be necessary to assure that the provisions hereof shall thereafter be applicable, as nearly as reasonably may be, in relation to its shares of Common Stock thereafter deliverable upon the exercise of the Rights; and (v) the provisions of Section 11(a)(ii) hereof shall be of no effect following the first occurrence of any Section 13 Event.
Transfer of Assets On the basis of the representations, warranties, covenants and agreements and subject to the satisfaction or waiver of the conditions set forth in this Agreement, at the Closing, each Seller shall sell, convey, assign, transfer and deliver to Buyer, and Buyer shall purchase and acquire from each Seller, free and clear of all Security Interests, all of such Seller’s right, title and interest in and to all assets used by such Seller in or relating to the Business (collectively, the “Acquired Assets”), including, without limitation, the following assets:
(i) except as otherwise described herein, all of such Seller’s right, title and interest in and to all inventories, wherever located, of Business Products, including all finished goods, consigned goods, work-in-progress, raw materials, spare parts, packaging, accessories and all other materials and supplies to be used, consumed, sold, resold or distributed by such Seller, and all warranties and guarantees, if any, express or implied, by the manufacturers or Seller of any such item or component part thereof, rights of return, rebate rights, over-payment recovery rights and any other rights of such Seller relating to these items (collectively, the “Inventory”):
(ii) all machinery, equipment, tools, furniture, office equipment, computer hardware, supplies, materials, vehicles and other items of tangible personal property (other than the Inventory) used in or relating to the Business (other than the Excluded Assets) and all warranties and guarantees, if any, express or implied, rights of return, rebate rights, over-payment recovery rights and any other rights of such Seller relating to these items, in each case existing for the benefit of such Seller in connection therewith to the extent transferable (collectively, the “Personal Property”):
(iii) all of such Seller’s right, title and interest in and to the Designated Contracts;
(iv) all of such Seller’s right, title and interest in and to all Business Intellectual Property;
(v) to the extent assignable, all of such Seller’s right, title and interest in and to all Permits relating to the Business;
(vi) all other assets relating to existing customer relationships and all written materials, data and records relating to the Business (in whatever form or medium), including (A) client, customer, prospect, supplier, dealer and distributor lists and records, (B) information regarding referral sources, (C) product catalogs and brochures, (D) sales and marketing, advertising and promotional materials, (E) research and development materials, reports and records, (F) production reports and records, (G) equipment logs, (H) service, warranty and claim records, (I) records relating to the Inventory, (J) maintenance records and other documents relating to the Personal Property, (K) purchase orders and invoices, (L) sales orders and sales order log books, (M) material safety data sheets, (N) price lists, (O) quotations and bids, (P) operating guides and manuals, (Q) correspondence, (R) financial books, records, journals and ledgers, (S) product ideas and developments and (T) plans and specifications, plats, surveys, drawings, blueprints and photographs;
(vii) all other intangible rights and property of such Seller relating to the Business, including (A) going concern value, (B) the goodwill of such Seller relating to the Business as conducted by such Seller, (C) directory, telecopy names, numbers, addresses and listings, and all rights that such Seller may have to institute or maintain any action to protect the same and recover damages for any misappropriation or misuses thereof;
(viii) all insurance benefits, including rights under and proceeds from, insurance policies providing coverage for the Acquired Assets or such Seller relating to the Business, where such rights, benefits and proceeds relate to events occurring prior to the Closing;
(ix) all rights with respect to deposits, prepaid expenses, claims for refunds and rights to offset related to the Business (excluding rights relating to the prior payment of Taxes) and interest payable with respect to any of the foregoing;
(x) all claims (including claims for past infringement or misappropriation of Business Intellectual Property or rights related thereto included in the Acquired Assets) and causes of action of such Seller relating to the Business against any other Person, whether or not such claims and causes of action have been asserted, and all rights of indemnity, warranty rights, rights of contribution, rights to refunds, rights of reimbursement and other rights of recovery of such Seller (regardless of whether such rights are currently exercisable) relating to the Acquired Assets;
(xi) all leasehold interests in the HK Leased Property, including all improvements and fixtures thereon and all rights and easements appurtenant thereto;
(xii) all leasehold or other contractual interests in the California Warehouse Property;
(xiii) all leasehold interests in the Arizona Leased Property, including all improvements and fixtures thereon and all rights and easements appurtenant thereto; and
(xiv) all accounts receivable of such Seller of any kind.