THE WHAT IF, Ashland and the Asset Sales Corporations (as defined below) have an interest in the Business (as defined below).
THE WHAT IF, Ashland and the Asset Sales Corporations will own the Transferable Assets (as defined below). AND
THE WHAT IFThe parties desire that (a) Ashland will sell and transfer everything to Buyer and the Asset Sales Companies will sell and transfer the same and Buyer will purchase and acquire everything and the Buyer Companies (as defined below) will sell all to purchase and acquire the Asset Transfers from Ashland and the Asset Sales Corporations, and (b) the Purchaser and the Buying Corporations assume all assumed obligations (as defined below), each on the terms set forth herein ·
SO NOWIn consideration of the mutual promises and agreements and undertakings contained herein, subject to the terms and conditions set forth herein and intending to be bound by them, the parties agree as follows:
Section 1.1. Definitions.
As used in this Agreement, the following terms have the meanings set forth or set forth below:
(i) The distribution, mixing, packaging and marketing of industrial specialty chemicals, additives and solvents to industrial users, including those in the following industries: paints and coatings, personal care, inks, adhesives, polymers, rubber, industrial compounds and institutions, automotive, home appliance, oil and gas and paper industries;
(ii) The distribution, packaging and marketing of thermosetting polyester resins, fiberglass and other special reinforcements, catalysts and related products.
(iii) The formulation, distribution, packaging and marketing of thermoplastic resins, including specialized technical services for processors; AND
(iv) collection, recovery, recycling and disposal of hazardous and non-hazardous waste;
each as described in Ashland's Annual Report on Form 10-K for the year ended September 30, 2009 as the “Ashland Distribution” segment.
(xii) the right to sue and claim damages for any prior breach or impairment of the foregoing.
(i) any failure of the Company to meet any internal, published or other estimate, forecast, projection or forecast of sales, net income or other measure of financial performance (whether or not the facts or events giving rise thereto were met); A contribution to such failure that cannot be excluded may be considered a material adverse effect or taken into account in determining whether a material adverse effect exists or will occur.
(ii) any changes or adverse effects (including litigation, loss of employees, cancellation or delay of customer orders, loss of revenue or net profit, or disruption of business relationships) arising out of or in connection with (k) the status of negotiations, the making , announcement or pendency of any transaction contemplated hereby, (v) conditions affecting any industry, industry sector or geographic area in which the Company operates or in which the Company has an interest, the economy or our securities, credit or financial markets; United States or any foreign economy, or in the securities, credit or financial markets wherever the Company operates or makes sales, (c) changes in generally accepted accounting principles or applicable laws or regulations, (x) any natural disaster or act or threat of terrorism or war (whether or not declared) anywhere in the world, any armed hostilities or terrorist activities anywhere in the world, any threat or escalation of armed hostilities or terrorist activities anywhere in the world, or any governmental or other response or response to any of the foregoing; (y) comply with the terms of this Agreement or take any action required or otherwise provided for by this Agreement, or (g) any action by Ashland or any Securities taken or not taken upon request or with its permission; Buyer or any of its Affiliates and that with respect to clauses (v), (w) and (x) the Company is not materially disproportionate to other industry participants in the Company.
Section 1.2.Index of defined terms.
As used in this Agreement, the following terms have the meanings ascribed to them in their respective positions below:
Section 1.3.Other definitions and construction.
(a) Terms defined in the singular have comparable meanings when used in the plural and vice versa. Whenever the context requires, each pronoun must contain the appropriate masculine, feminine and neuter forms.
(d) Except as otherwise provided in this Agreement, any agreement, document or bylaw set out or referred to herein means such agreement, document or bylaw as amended, supplemented or amended from time to time, including (i) (in the case of agreements or documents) by waiver or consent and (in the case of statutes) by succession to comparable successor statutes and (ii) all their appendices and instruments contained therein.
(e) Any reference to federal, state, local or foreign law shall also be construed as a reference to all rules and regulations contained therein, unless the context otherwise requires.
(f) The parties participated jointly in the negotiation and drafting of this agreement. In the event of any ambiguity or question of intent or interpretation, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall exist in favor of either party as a result of the drafting of any provision of this agreement or disadvantage.
Section 2.1.Purchase and sale of transferable goods.
Subject to the terms and conditions set forth herein, Ashland shall, for consideration at the time of the Closing and as of the Effective Date, sell, transfer, assign and cause the Asset Selling Entities to be Purchasers and Purchaser Entities of Buyer and Buyer and Purchaser Entities agree to purchase, acquire and accept the Assets transferred by Ashland and the Asset Sales Companies free and clear of all encumbrances, except for Permitted Encumbrances.
Section 2.2.Assets transferred.
(f) inventories and receivables (other than assigned receivables).
(h) intangible rights and assets relating exclusively to the Company (other than intellectual property rights referred to in item g) above), including goodwill and goodwill relating exclusively to the Company;
(i) all transferable government licenses (and pending applications and renewals thereof) relating solely to the Company or the transferred Assets;
(j) Originals (or, to the extent originals are required to be maintained by Ashland or any of the Asset Sales Corporations under applicable law, copies) of: (i) all customer and supplier lists relating to the Business; (ii) all records and documents (including credit information) relating to the Company's customers and suppliers, (iii) all other business and financial records, files, books and documents (whether in paper or computer format ) as they relate to the Company and (iv) all personal files, records and documents (whether in paper or computer format) relating to employees;
(m) all rights, titles, claims, causes of action and rights of relief of Ashland and the Asset Sales Corporations, whether existing or not, known or unknown, contingent upon or relating to assets transferred or liabilities assumed, of Ashland and the Asset Sales Corporations; Unconditional asset sales companies, including any claims for warranties, representations, guarantees, indemnities and similar rights from suppliers, manufacturers, contractors and other third parties on behalf of Ashland or an asset sales company in connection with any transferred assets or liabilities that are undertaken in a manner related to the conduct of the Company, including (1) the purchase, acquisition, sale, distribution or supply by the Company of any goods, services or products, or (2) the purchase, acquisition, sale, distribution or supply by the Ashland Company or an Asset Sale Company of any goods, services or products for or on behalf of the Company, in any event, at any time until the Closing, together with any recovery by settlement, judgment or otherwise relating to such claims. AND
(n) all other property and assets (but not real estate) occupied or held for use by Ashland or any of the Asset Sales Companies, (i) relating to the Business and located in the transferred property or real estate; excluding such real property and assets used exclusively in a business (other than the business) operated by Ashland or one of the Asset Sales Corporations as of the Closing Date or (ii) related solely to the business and located elsewhere as transferred assets or immovable rights (other than, in the case of this clause (ii), goods and assets attached to immovable property, but including, in the case of this clause (ii), any ancillary rights of ownership in immovable property, such as easements, permits, rights of way and the like belonging to real estate that is not transferred real estate or property rights that have been transferred).
Section 2.3.Common consents and contracts.
(a) Except as provided in Section 3.1(b), the Transferred Assets shall exclude any real property lease, tangible personal property lease, fleet vehicle lease, assigned contract, governmental approval, contract, license or right that is not assigned or transferred without the consent of any person other than Ashland, the Asset Selling Corporations or any other affiliate or purchaser of Ashland, unless such consent is obtained prior to the Closing;however it is planned, that each of Ashland, Asset Sales Corporations and Purchaser shall have a continuing obligation, for a reasonable period not to exceed twelve (12) months from the Closing Date, to use commercially reasonable efforts to obtain all necessary consents to the assignment and, after obtaining the necessary consents from third parties, such as real estate leases, tangible personal property leases, fleet vehicle leases, contracts and other agreements, regulatory approvals, permits and rights, if any, if there is no such consent, Otherwise, the transferred assets shall be transferred to Buyer or a Buyer Company in accordance with this Agreement. ANDmore are providedthat if such necessary consent cannot be obtained, the parties, at Buyer's option, will cooperate to seek for Buyer an arrangement reasonably designed to provide Buyer with the resulting benefits (is offeredthat no agreement shall contain any obligation to initiate, defend or participate in any dispute or to make any offer or concession (financial or otherwise) to any third party).
(b) Buyer acknowledges that certain consents may be required in proposed transactions by the parties to real estate leases, leases of tangible personal property, fleet vehicle leases, entered into contracts, other agreements, governmental approvals, licenses or rights, and that such consents are not required Buyer agrees that, except as provided in Section 2.3(a) or 7.1(b), neither Ashland nor the Asset Sales Corporations shall have any responsibility or liability arising out of or in connection with the failure to obtain all consents that have required or may be required in connection with the proposed transactions or as a result of the default or acceleration or termination of any real estate lease, tangible personal property lease, fleet vehicle lease, accepted contract, other contract or governmental approval, license or right as a result. Buyer further agrees that none of Ashland's representations, warranties or covenants herein shall be breached or deemed to have been breached and that no term of Buyer's obligations to consummate the contemplated Transactions shall be deemed breached by reason of (i) failure obtaining such consent or as a result of such failure, acceleration or termination, or (ii) any proceeding brought or threatened by or on behalf of any person arising out of or in connection with the failure to obtain any consent or such failure, acceleration or termination;is offeredthat the failure to obtain such consent and the delay, dispatch, termination or process may be taken into account in determining whether the representation set forth in section 5.12 has been breached;more are providedthat this phrase shall not be construed to limit Ashland's covenants and understandings in Sections 7.1(a), (b) and (d);
Section 2.4.Company assets are excluded.
(ii) all losses, loss offsets and rights to refunds, prepaid taxes, credits and credits are offset against all taxes to the extent attributable to the tax period prior to the Closing Date;
(iii) the corporate books and records, stock registers and corporate seals of Ashland and the Asset Sales Corporations and, except as provided in Section 2.2(i), the general ledger books and all other books and records of Ashland and of Asset Sales Corporations ;
(iv) any legal or beneficial interest in the common stock of an asset sale company, another affiliate of Ashland or any other person;
(v) all real property now or formerly owned or leased by Ashland or an Asset Sales Company, other than the Transferred Property and Interests in Transferred Property;
(vi) all assets (other than Transfer Plan Assets) related to an Ashland or Asset Selling Corporation supplier benefit plan or employee benefit plan;
(vii) the reserved names or any names, trademarks, domain names and logos, alone or in combination with other words, phrases, designs and the like, or any derivatives thereof in any language;
(viii) all insurance policies issued for or on behalf of Ashland and its predecessors, whether issued for past or current periods of insurance, including all title, general liability, deductible, fire, property, casualty, all perils; business interruption, workers' compensation, crimes and loyalty, directors and officers, errors and omissions, bonds and other forms of insurance, self-insurance, deductibles and coverages contracts and related agreements and any claims, benefits, rights, income, action decisions or other interests related with those resulting from such insurance policies or any coverage arrangements made by Ashland and its predecessors in connection with such policies;
(ix) all rights, titles and credits related to Foreclosed Assets or Retained Liabilities, whether before or after the Closing;
(xiii) any right, title or other property arising out of or relating solely to any Executed Asset;
(b) The parties acknowledge and agree that, for purposes of this Agreement, Buyer and the Purchasing Companies shall not purchase, acquire or accept rights from Ashland or any asset sale company under this Agreement or the Ancillary Agreements in which Ashland or any Else is a party to which Asset Selling Corporation is a party.
Section 2.5.Liabilities acquired by the company.
(a) all trade liabilities (other than allocated liabilities) outstanding or arising after the Expiration Date;
(b) all obligations arising out of or relating to any Transferred Agreement (including any obligations arising out of or relating to any termination or notice or notice of intent to terminate any Transferred Agreement), occurring before, on or after the Closing Date (in addition to restitution obligations and litigation residuals).
(c) all liabilities to the extent related to or arising out of transferred assets or arising out of the ownership of the Transferred Assets by the Buyer and its Affiliates or related to the realization of the benefits of the Transferred Assets in any event, regardless of the foregoing, if occurring before, on or after the Closing Date (excluding retained indemnity and retained litigation);
(d) any liabilities disclosed in the statement of working capital required to be provided pursuant to Section 2.8.
(e) all Environmental Liabilities, to the extent related to the Company or any Transferred Property, arising before, on or after the Closing Date (other than Retained Remedial Liabilities, Retained Litigation and all Environmental Liabilities (other than any related liabilities) human exposure to hazardous materials) to the extent related to an Excluded Asset described in Section 2.4(a)(v));
(f) any Liabilities arising out of or relating to Ashland and its Affiliates at any time owning or possessing any Transferred Property or operating the business conducted thereon, arising before or after the Closing Date (excluding remedial Liabilities that are they kept and those who are kept trial?
(g) all liabilities in connection with any proceeding to the extent arising out of or relating to any transferred property or the operation or conduct of business on or after the Closing Date (including all such liabilities to the extent related to liability for the product, consumer protection, consumer fraud, breach of warranty or similar claims for personal injury or death or property damage or destruction);
(h) any liabilities arising out of or in connection with any return (including any return for breach of warranty) or refund, adjustment, compensation, discount or exchange in respect of any product sold in connection with it or the transferred business being sold; or assets, whether arising before, on or after the Closing Date;
(k) Other Retained Remedial Obligations of which Ashland has not received written notice on or before the fifth (5th) anniversary of the Expiration Date.
(l) any retained product liabilities arising from any dispute for which Ashland has not received written notice of pending litigation or threatened written litigation before or on the fifth (5th) anniversary of the Expiration Date;
(m) Any Dispute not related to the Withheld Product for which written notice of a pending or threatened written dispute has not been received by Ashland on or before the fifth (5th) anniversary of the Closing Date. AND
(n) all other obligations of whatever kind and nature, whether primary or secondary, direct or indirect, accrued or fixed, known or unknown, absolute or contingent, due or undue, or determinable or determinable, arising out of or in connection therewith the operation or management of the business or any transferred asset, or the possession, sale or lease of any transferred asset, either before or after the closing date.
Notwithstanding any other provision of this Agreement, the acceptance by Buyer and the Buyer Companies of any assumed liabilities shall not limit or limit Ashland's representations and warranties under this Agreement.
For the avoidance of doubt, references in parenthetical clauses in certain subsections of this Section 2.5 to specific types of obligations upon withholding do not limit the exclusion of other types of obligations in those subsections or the exclusion of obligations assumed by any obligations retained by other subsections of this Section 2.5, which do not contain such parenthetical references.
Section 2.6.Retained liabilities of the company.
(a) Liabilities arising out of or relating solely to the Excluded Assets.
(b) obligations arising from a vendor benefit plan, other than obligations assumed by employees.
(e) Other Retained Remedial Obligations of which Ashland has received written notice on or before the fifth (5th) anniversary of the Expiration Date.
(f) restricted liabilities from litigation proceeds for which Ashland received written notice of pending litigation or was threatened with written litigation on or before the fifth (5th) anniversary of the Closing Date;
(g) Disputes not related to Retained Product for which Ashland received written notice of pending litigation or threatened written litigation on or before the fifth (5th) anniversary of the Closing Date.
Notwithstanding anything else in this Agreement, Ashland and the Asset Sales Corporations retain liability for any liabilities arising solely from the operation or conduct of Ashland or its affiliates in any business other than the Company.
Section 2.7.purchase price.
Section 2.8.Purchase price adjustment for net working capital.
(ii) If the Closing Amount is less than the Adjusted Purchase Price, Buyer, on its own behalf and as agent for the Purchasing Companies, shall pay Ashland, on its own account and as agent for the Purchasing Companies, the amount of such difference; companies of Sale, according to item (e). If the Closing Value is greater than the Adjusted Purchase Price, Ashland, for its own account and as agent for the Asset Sales Companies, will pay to the Buyer, for its own account and as agent for the Buying Companies, the amount of such difference in accordance with paragraph (e).
(f) For purposes of establishing the Closing Account and determining the payment amounts payable pursuant to paragraph (d), all amounts in currencies other than US Dollars shall be converted into US Dollars at the Bloomberg Composite Rate (London (CMPL )) ) ( or successor) at 4 p.m. London time on the Business Day preceding the Closing Date or such other date as Ashland and the Purchaser deem appropriate for the relevant calculation.
Section 2.9.Allocation of Consideration.
Section 2.10.Transmission and acquisition tools.
At the Closing, Ashland and the Asset Sales Corporations, on the one hand, and Buyer and Buyer Corporations, on the other hand, shall execute and deliver such invoices, deeds, assignments, acceptances and other documents and deeds of sale and transfer, assignment, transfer and assumption as required to transfer the assets transferred by Ashland and the Asset Sale Corporations and to assume the liabilities assumed by the Purchaser and the Purchase Companies as provided herein, each in form and substance reasonably agreed upon; between the parties and as may be required in relation to the particular asset transferred or liability assumed is customary and customary in the relevant jurisdiction and applies the applicable terms and conditions and is consistent with the fundamental principles of this Agreement. div>
Section 2.11.Purchase price adjustment for unsecured liabilities
(a) Within one hundred twenty (120) days of the Closing Date, Ashland will provide Buyer with a statement of unfunded liability (the “Statement of unfunded liability
') and shall provide the Purchaser and its accountants, actuaries, consultants and other representatives with copies of all plan documents, inventory information, asset allocation calculations, other written materials substantiating the plan's provisions and, if desired, examples and explanatory calculations of individual liabilities, each to the extent related to the review of the Statement of Unfunded Liabilities or to the extent necessary to repeat the actuarial valuations provided for in this Section 2.11 in connection with the review of the Purchaser pursuant to this Section 2.11 ( a "Underlying data
"means, with respect to all non-U.S. Ashland Ported Pension Plans, the aggregate amount in excess of the Defined Benefit Obligation ("PBO
") or the accrued pension liability ("APBO
"), as applicable, for annuity or post-service benefits, as applicable, under any such plans required by law to be transferred to the purchaser in excess of the value of the plan assets required by law to be transferred for required by the purchaser with respect to each of these plans, calculated in accordance with GAAP as of the day before the Expiration Date for all transferring employees and in accordance with the applicable plan rules, determine that the unfunded liability is calculated from the day prior to the closing date of the GAAP financial statements using the same actuarial assumptions and methods used by Ashland or its respective subsidiaries to determine PBO and APBO used in accordance with GAAP for Ashland's financial statements which expired on September 30, 2010.
(b) The buyer may dispute the amounts specified in the Uncovered Liability Statement line items (each “Controversial post about unfunded liability
'), but only based on (a) mathematical errors or (b) the status of the unfunded liability not calculated in accordance with this Section 2.11;is offered,Howeverand, in each case, Buyer shall notify Ashland in writing within fifty (45) days of the later of (i) any disputed item of Uncovered Liability and shall reasonably state the disputed amount and basis thereof; the date Buyer received the Disclaimer and (ii) the date Buyer received the underlying data. Buyer's failure to notify Ashland of disputed Unfunded Liability items within this period shall constitute Buyer's final and binding decision as to acceptance of all items in the Unfunded Liability Statement.
(c) If notice of disputed liability is requested pursuant to paragraph (b) above, Ashland and Buyer must be notified within ten (10) business days of the date of such service (the “Unfunded Debt Settlement Period
"), negotiate in good faith to resolve Uncovered Liability Disputes. If the parties reach an Uncovered Liability Agreement during the Resolution Period, this Agreement must be evidenced in writing and the Uncovered Liability Statement (as revised pursuant to this Written Agreement) is evidenced in writing as of the date of this Agreement and is binding. If the parties fail to reach an agreement during the Uncovered Liability Resolution Period, Ashland and Buyer will escalate any unresolved Unresolved Liability issues to a independent actuary whom Ashland and Buyer agree to contact (the “actuarial intermediary
The Actuarial Arbitrator shall render a decision, acting as an expert and not as an arbitrator, with respect to any unresolved dispute relating to the Unfunded Liability within thirty (30) days of its engagement by Ashland and Purchaser, and the decision shall be in accordance with the rules set forth in this Section 2.11 Within such thirty (30) day period, the actuarial intermediary shall provide Ashland and Purchaser with a report setting forth (i) its adjustments, if any, to its statement of unfunded liabilities; and (ii) the calculations supporting such adjustments.160 This report is final, conclusive and binding on the parties. Ashland and the buyer will share equally all costs associated with engaging the actuarial mediator.
(d) If the Estimated Unfunded Liability is greater than the Agreed Unfunded Liability, the Purchaser, on its own account and as agent for the Purchaser Companies, shall pay to Ashland the amount of such difference, on its own account and as agent for the Selling Companies Asset, in accordance with item (e). If the agreed unfunded liability is greater than the estimated unfunded liability, Ashland will pay itself and as agent for the companies selling the assets to the buyer and as agent for the buying companies. the amount of such difference in accordance with paragraph (e).
(e) All payments required to be made pursuant to paragraph (d) shall be made by the party obligated to make such payment pursuant to this Section 2.11 (a “Payer of unfunded liability
’) in the other part (the “Recipient of unfunded liability
'), for itself and on behalf of its subsidiaries (if any), within ten (10) days of verification of the agreed unfunded liability, in US dollars, by transfer of readily available funds in accordance with the recipient's written instructions to the paying party (instructions must be given by the recipient immediately and no later than (8) days after the determination of the agreed unfunded liability (or such later date as may be agreed between Ashland and the Purchaser)), together with interest thereon of the date amount from the Closing Date to the date of such payment, with interest equal to the interest rate on the Closing Date.
(f) For purposes of preparing the Statement of Unfunded Indebtedness and determining payment amounts payable pursuant to paragraph (d), all non-U.S. Dollar amounts shall be converted into U.S. Dollars at the applicable Bloomberg Currency Composite rate ( London). CMPL)) (or any successor thereof) at 4 p.m. London time on the Business Day preceding the Closing Date or such other date as Ashland and the Purchaser deem appropriate for the relevant calculation.
Section 3.1. To book.
(a) The closing will take place at the offices of Cravath, Swaine & Moore, 825 Eighth Avenue, New York NY 10019 at 10:00 AM. Eastern Time on the first day, which is (i) at least three (3) business days after the fulfillment of any conditions set forth in Section 4 (or, to the extent permitted, waiver by the parties entitled to such benefits) and (ii) the last Business Day of the month in which said conditions are met or waived, or at such other times and places as the parties may mutually agree. Notwithstanding the provisions of the immediately preceding sentence, if the Marketing Period has not yet expired at the time the conditions set forth in Article 4 are met or waived or these conditions are waived at closing), then closing will occur
Instead, on the date following compliance with or waiver of these terms, whichever is earlier, on (a) one business day before or during the Marketing Period as determined by Buyer on at least three (3) business days notice after Ashland and (b) the last day of the Trading Period, each subject to compliance with or waiver of the conditions set out in Article 4 from the date set out in accordance with paragraph (a) or (b) above or on another date; time or any other place as agreed in writing by the parties. The date on which the Closing occurs is the Closing Date (the "Closing Date").final condition
"). All acts to be done and documents to be executed and delivered upon completion shall be deemed to have been taken, executed and delivered at the same time and no action, performance or delivery shall be effective until all have been completed, except except as expressly provided herein Closing shall be effective in any jurisdiction to which the Transferred Assets are transferred and assumed responsibilities shall be assumed by Buyer or the relevant purchasing entity as of the Effective Date.
(b) (i) Notwithstanding anything herein to the contrary, (A) if any of the conditions set forth in Section 4.1(d)(ii) have not been satisfied by the Expiration Date (without reference to Section 4.1(d) ) ( (ii)) due to conditions in one or more specified foreign jurisdictions (each such jurisdiction being "deferred jurisdiction
') and (B) all other conditions in Article 4 are satisfied or waived, then the transfer of the transferred assets and the assumption of the assumed liabilities will take place in each of such deferred jurisdictions (such transferred assets and assumed liabilities for each jurisdiction postponed together, A"business was postponed
(or if the parties waive these terms. Subject to Section 7.2, the parties will use all reasonable efforts to ensure that the Deferred Transfer occurs as soon as practicable after the Closing Date. For the avoidance of doubt, the Closing Date shall not be deferred as a result of such failure and there is no change in the amount paid at closing pursuant to Section 2.7 as a result of a deferred transfer.
(ii) From and after the Closing and until such time as any Deferred Transaction has been transferred to Buyer (or its Designated Affiliate) pursuant to Section 3.1(b)(vi) or Section 3.1(b)(vii) ) ( every A"deferred transfer
") such Deferred Transactions (including any cash equivalents generated therefrom) will be held for the benefit and account of Buyer (or its Designated Affiliate) and will be managed and operated by Ashland and its Affiliates on behalf of Buyer ( or its Designated Affiliate) and is based on all profits, income, losses, taxes and tax benefits or other items accruing to Buyer's (or its designated affiliate's) account in accordance with applicable law.
(iii) Except as otherwise provided in Section 3.1(b)(ii) or the other provisions of this Agreement, any Deferred Agreement shall be conducted in accordance with past practice or, unless prohibited by applicable law, otherwise: Buyer shall request reasonably and Ashland's pre-closing obligations pursuant to Section 7.13 shall remain in effect with respect to this Deferred Transaction until such Deferred Transfer occurs. Buyer and Ashland shall use commercially reasonable efforts to minimize and cause their respective Affiliates to minimize liability for Taxes arising from Deferred Transfers.
(iv) Ashland and its Affiliates shall have no liability to Buyer or its Affiliates for the management or operation of any Deferred Business, except for breach of this Agreement, gross negligence or willful misconduct in the event of breach, gross negligence or willful misconduct; conduct Ashland and its affiliates will compensate buyers;however it is plannedthat Ashland and its affiliates have no liability for any action taken pursuant to the request or direction of Buyer or its affiliates;
(v) In addition to (A) as set forth in Section 3.1(b)(iv) or (B), Buyer shall to the extent that Buyer is charged with any breach of this Agreement, gross negligence or willful misconduct on the part of of Ashland or its related or resulting affiliates will indemnify Ashland and indemnify and hold harmless Ashland and Ashland's indemnifiers from and against any damages arising or incurred as a result of direct or indirect ownership, management or operation by Ashland and the subsidiaries of any business Deferred after the Closing, including the amount of any additional taxes (current or future) payable by Ashland or its subsidiaries (or any tax losses carried forward or spent credits) in applying the terms of this Agreement that exceed the amount of taxes owed by Ashland or its affiliates that would have been owed upon giving effect to the terms of this Agreement if each Deferred Transaction had been transferred to Buyer or its named affiliates on the Closing Date.
(vi) Subject to Section 3.1(b)(vii), completion of the transfer of each Deferred Transaction shall occur on the fifth Business Day after all applicable conditions set forth in Section 4.1(d)(ii) have been met. or at such other time as the parties may agree. With respect only to the completion of any transfer of any Deferred Business, the conditions set forth in Section 4.1(d)(ii) shall be satisfied upon completion of the transfer of such Deferred Business as a business and not as a completion.
(vii) If the Deferred Transfer of a Deferred Transaction has not occurred before or on the first anniversary of the Closing Date, Ashland or the relevant Asset Sales Company may, at any time upon delivery of written notice to the Purchaser (each a “notice of sale
"), elect to sell any remaining deferred business to a third party;is offeredthat Ashland or such Asset Selling Corporation will transfer the net proceeds (ie, the purchase price paid for the deferred transaction, less any transaction expenses, including reasonable attorneys' and other advisors' fees) from this sale to the Purchaser and complete the sale in a manner set forth in Consistent with the manner in which Ashland would effect any sale as if it were selling the Deferred Business for its own account.
Section 3.2.To book; traditions.
(a) At the Closing, Ashland, on its own behalf and as agent for the Asset Sales Corporations and their Subsidiaries, will deliver or cause to be delivered the instruments and documents listed on the Purchaser on its own behalf and as agent for corporate buyersAnhang 3.2(a)
(b) At closing, Buyer, itself and as agent of the Purchaser Companies, will deliver to Ashland for itself and the agent of the Asset Selling Companies: (i) an amount equal to the Closing Date Amount less Unfunded Obligations Estimated via bank account transfer in dollars to readily available funds in accordance with Ashland's written instructions pursuant to Section 2.7. and (ii) the means and documents provided for inAnhang 3.2(b)
TERMS OF TRANSACTION
Section 4.1.Terms of Buyer and Ashland Obligations.
The respective obligations of each party to complete the Proposed Transactions are subject to compliance with the following conditions precedent:
(a) Proceedings instituted by any governmental authority in any jurisdiction to prevent or prohibit in any respect the proposed transactions shall not have been instituted and shall not be continued.
(b) There are no legal restrictions preventing the proposed transactions.
(c) The waiting periods required by the HSR statute when registration is required, including any extensions thereof, must have expired upon expiration or early termination by the FTC or DOJ and all investigations related to the sale under of this statute may have expired opened or closed by the FTC or DOJ upon request for additional information, subject to Section 7.2(c).
(d) (i) To the extent a filing is required, approval from the European Commission must have been obtained or may be deemed to have been obtained under the EU merger regulations and (ii) and no other waiting period (including any waiting period); (Extensions of) may be obtained under other competition laws or investigations by any government agency into the proposed transactions have not ended or are pending.
Section 4.2.Terms of Buyer Obligations.
The buyer's obligation to carry out the proposed transactions is subject to the fulfillment of the following conditions:
(a) Ashland shall have performed, in all material respects, any of its obligations under this Agreement required to be performed by Ashland prior to or at the Closing.
(b) The representations and warranties made by Ashland on behalf of itself and each of the Asset Sales Companies in this Agreement (without regard to any limitation or reference to materiality, material compliance or material adverse effect that referred to herein) are true and accurate as of the Expiration Date, except for representations and warranties expressly relating to an earlier or specific date, which are true and correct as of such date, in each case, unless the representations and warranties do not are so true and correct that they do not, individually or collectively, have a material adverse effect. The purchaser must have received a relevant certificate signed by an authorized Ashland representative.
(c) Ashland has delivered or caused to be delivered to Buyer duly executed copies of all items required in Section 3.2(a) of this Agreement.
(d) There has been no event, change, occurrence or circumstance since the date of this Agreement that, individually or in combination with such event, change, occurrence or circumstance, would have a Material Adverse Effect.
(e) Purchaser must have obtained releases of liens listed belowAppendix 4.2(d)
Section 4.3.Ashland Terms of Engagement.
Ashland's obligation to consummate the Proposed Transactions and to cause the Asset Sales Companies to consummate the Proposed Transactions is subject to compliance with the following conditions:
(a) The Buyer shall have performed in all material respects its obligations under this Agreement which the Buyer must perform on or before the conclusion of the Agreement.
(b) The representations and warranties made by Buyer on behalf of itself and each Buyer entity in this Agreement (without regard to any limitation or reference to materiality, material respect or material partiality of Buyer set forth herein); are true and accurate as of the Closing Date, except for representations and warranties expressly relating to an earlier or specific date, which are true and accurate as of that date, in each case, except to the extent that the representations and warranties are not that the Information is, individually or collectively, so true and correct as not to have a material adverse effect on the buyer; Ashland shall have obtained such certification signed by an authorized representative of Buyer.
(c) Buyer shall have delivered to Ashland, or arranged to deliver, duly executed copies of all items required in Section 3.2(b) of this Agreement.
Section 4.4.Disappointment with closing conditions.
Neither Ashland nor Buyer may rely on any breach of any provision of this Section 4 if such breach is due to the failure of the relevant party to act in good faith or to use reasonable efforts to complete as required under Section 7.1 .
REPRESENTATIONS AND WARRANTIES
Except as otherwise provided in the Disclosure Schedules attached hereto (all information set forth in any section or subsection of such Disclosure Schedules shall be deemed applicable and appropriate to the section or subsection of this Agreement to which they correspond in number). and any other section or subsection of this Agreement to the extent it is reasonably apparent that such information relates to that other section or subsection), Ashland represents and warrants to Buyer that:
(a) Ashland is duly organized, duly incorporated and under the laws of the Commonwealth of Kentucky. It has full power and authority to own its properties and carry on its business in the places where such properties are now located or where such business is carried on.
(b) Each of the Asset Sales Companies is duly organized under the laws of its respective jurisdiction of incorporation, validly existing and in good standing (to the extent such term is known in such jurisdiction) and has full powers and authority; own its own property own and carry on business in the places where such property is now located or where such business is carried on, unless the lack of such power and authority would not have a material adverse effect.
(c) With respect to business, Ashland and the Asset Sales Corporations are duly qualified to conduct business in any jurisdiction where such qualification is required by the nature of the properties they own or the nature of their operations, except in those jurisdictions where do not meet the requirements will not have a material adverse effect.
Section 5.2.Power; binding effect.
(a) Ashland has full corporate and other power to enter into this Agreement and both Ashland and the Asset Sales Corporations have full corporate and other power and authority to make the amendments to which they are required to be a party. take part and fulfill your obligations here and (as applicable) below. This Agreement and the amendments to which Ashland will be a party and the amendments to which the Asset Sale Partnerships will be a party are duly adopted by the Closing and approved by all necessary corporate action.
(b) Subject to the proper acceptance, execution and delivery of this Agreement by Buyer, this Agreement constitutes a legal, valid and binding obligation of Ashland, enforceable in accordance with its terms, against Ashland, except to the extent that performance prevented by bankruptcy, bankruptcy, reorganization, moratorium or similar legislation affecting the rights of creditors in general. Subject to proper approval, execution and delivery of changes by Buyer or the respective Buyer Company (as applicable), each change shall be performed by Ashland or an Asset. Delivery by Seller Corporation shall be due and valid and shall constitute a legal, valid and binding obligation of Ashland or the applicable Asset Selling Corporation (as the case may be), enforceable in accordance with its terms. unless enforcement may be restricted by bankruptcy, insolvency, reorganization, moratorium or similar legislation affecting the rights of creditors generally.
Section 5.3.not a violation.
The execution and delivery of this Agreement by Ashland, the execution and delivery of the Amendments by Ashland or an asset sales company and the consummation of the contemplated transactions will not constitute and will not hereafter constitute a violation of any provision of Ashland's organizational documents. or sale of any company assets, (ii) subject to obtaining any necessary consents or authorizations, conflicts with or results in a breach or constitutes a default or results in termination, cancellation or acceleration (whether after issuance). termination or expiration or both) of any right or obligation of Ashland or an Asset Sales Corporation under any contract to which Ashland or an Asset Sales Corporation is a party or to which the transferred Assets are subject shall have the effect of creating or impose liens on any of the Transferred Assets or result in the cancellation, modification, revocation or suspension of any material license or permission, authorization or approval with respect to the Transferred Assets or (iii) agree to comply with the matters listed in theAppendices 5.4 and 6.5
violates any relevant law of any governmental authority applicable to Ashland or a company selling the Assets or the Transferred Assets or any order against Ashland or a company selling the Assets or the Transferred Assets, except as provided in paragraphs (ii) and (iii) . ), for any breach, conflict, violation, omission, termination, cancellation, acceleration, modification, revocation or suspension that would not, individually or collectively, have a Material Adverse Effect.
Section 5.4.Ashland Government Approvals and Permits.
The execution and delivery of this Agreement by Ashland and the execution and delivery of the Additional Agreements by Ashland and each Asset Sales Corporation, and the performance of their respective obligations hereunder and hereunder, shall not require the submission or release, consent or the approval of any government, unless otherwise providedAppendix 5.4
and, except for any filing, approval, consent or approval, the failure to execute or obtain it would not have a material adverse effect.
Section 5.5.financial information.
Ashland has provided the Purchaser with the Company's audited balance sheets and statements of invested capital as of September 30, 2007, 2008 and 2009 and June 30, 2010, respectively, and the Company's audited statements of income and cash flows. for the twelve months ended September 30, 2007, 2008 and 2009 and the nine months ended June 30, 2010 and related notes to these financial statements (the "financial reports
"). and the periods disclosed therein, in accordance with GAAP consistently applied by Ashland.
Section 5.6.There are no significant adverse effects.
From June 30, 2010 to the date of this Agreement, there were no:
(a) any change, event, occurrence or circumstance which alone or in combination with any other change, event, occurrence or circumstance had a Material Adverse Effect; or
(b) a material change in the accounting policies used by Ashland or an asset selling company;
Accounts receivable from customers arose in the ordinary course of the company's business. No set-off, counterclaim or dispute shall be asserted or constitute payment in respect of such claims, nor shall any set-off, counter-claim, dispute, reduction or set-off be asserted or agreed to by any person in respect of any claim, other than any such claim Any set-off, counterclaim, dispute, reduction or set-off as is customary and customary in the conduct of business in accordance with the past practices of Ashland and the Asset Sales Corporations with respect to your reserves.
“means those who own immovable property, as defined below;Anhang 5.8(a)(i)
, owned by Ashland or an asset sale company and used in connection with the Company. Unless otherwise indicatedAnhang 5.8(a)(ii)
There is (x) no property (other than Owned Property) owned by Ashland or an Asset Sales Company used in connection with the Company and (y) there are no Encumbrances on Owned Property other than Permitted Liens and Proposed Liens.
“means (i) all Leased Properties as defined below;Anhang 5.8(b)(i),
subject to youLeases in favor of Ashland or a company selling assets to be used in connection with the business and (ii) the right of any purchaser to occupy and use space in the office building from and after the closing pursuant to a license, grant of license or similar agreement , owned or leased by Ashland and located in Dublin, Ohio, Barendrecht, Netherlands and Shanghai, China (collectively, "property lease
"). Except as set forth inAppendix 5.8(b)(ii)
, (c) there are no rental properties (other than leased properties) subject to a lease in favor of Ashland or an asset sales company used in connection with the business, (x) to the knowledge of Ashland, there are no reported real estate leasesAnhang 5.8(b)(i)
amended or modified orally or in writing, (y) each of the Property Leases shall be valid and binding upon Ashland if Ashland is a party thereto and any Asset Sales Corporation which is a party thereto and known to Ashland, in any other party and is in full force and effect and (z) neither Ashland nor any Asset Selling Corporation is in breach of or fails to perform any property lease that would individually or collectively result in a Material Adverse Effect.
Section 5.9.Basic Contracts.
(a) Except for the Agreements listed belowAnhang 5.9(a)
(pass away"Basic Contracts
'), and except for agreements entered into after the date of this Agreement and except for agreements that constitute Excluded Assets, neither Ashland nor any Asset Sales Corporation is a party to:
(i) any contract for the purchase of raw materials, inventory, fleet of vehicles or other tangible personal property, each for the exclusive use of the Company with a supplier or for the provision of services exclusively to the Company with a term of more than one (1) year from the date of this Agreement and which may not be terminated by Ashland or Asset Selling Corporation, a party to this Agreement, for any reason, upon up to ninety (90) days notice and without penalty or remaining Your financial obligation or expenses provide the business with $2,500,000 (or currency equivalent);
(ii) any agreement for the sale of inventory, fleet vehicles or other tangible personal property or for the provision of services exclusively by the Company that exceeds one (1) year from the date of this Agreement and is not subject to termination by Ashland or by the Company's Asset Sales Corporation shall be a party to such agreement without cause, upon not more than ninety (90) days' notice and without penalty, or the terms of the agreement provide for any remaining financial obligation or expense in favor of the Company $2,500 0.000 USD (or equivalent) before currency).
(iii) any contract that contains (x) "take it or pay it", minimum purchase requirements, similar mandatory requirements or purchase or sale obligations, (y) any restrictions on the purchase or sale of any goods or services in any territory or to customers or (g) any provisions relating to exclusive agreements, as the case may be, with the Company's principal suppliers or customers, as belowAppendix 5.9(a)(iii)
(iv) any agreement with an Ashland Affiliate relating to the Business, which may be terminated by either party without cause, upon up to ninety (90) days' notice and without penalty;
(v) any contracts for the purchase of raw materials or inventory with major suppliers as defined belowAnhang 5.9(a)(v)
for each of the Company's Chemicals, Plastics and Composites segments (each based on that segment's total raw material purchases and inventories for the twelve months ended June 30, 2010);
(vi) any contract relating solely to the Business and including a joint venture, partnership or similar contract or arrangement (by whatever name) involving the sharing of profits, losses, costs or liabilities;
(vii) any contract solely related to the transaction pursuant to which Ashland or an Asset Sale Company incurred, created, assumed or guaranteed any debt or pursuant to which Ashland or an Asset Sale Company imposed a charge on the assets transferred;
(viii) any contract that relates exclusively to the Business and includes a non-competition clause;
(ix) any termination agreements in favor of directors or officers or employees of the Company;
(x) all collective bargaining agreements in favor of employees; AND
(xi) any contract under which Ashland or an Asset Sales Company has advanced or loaned any amount to any of the Company's directors, officers or employees, other than in the ordinary course of business consistent with past practice;
(b) (i) Each material contract shall be valid and binding on Ashland if Ashland is a party thereto, and on any asset sales company to which it is a party and, to the knowledge of Ashland, on any other party and in full force and effect, and (ii) neither Ashland nor any Asset Selling Corporation is in breach of, or constitutes a material breach of, any material contract to which it is a party.
(a) Ashland and the Asset Selling Corporations own the Intellectual Property Rights or otherwise have the right to use the Intellectual Property Rights pursuant to an applicable license, sublicense or other agreement.
(b) To the best of Ashland's knowledge, none of the Company's products or services or the Company's exercise of any intellectual property rights, as currently conducted, infringes or otherwise violates the intellectual property rights of others.
(c) To the best of Ashland's knowledge, no person is infringing or otherwise violating the Intellectual Property Rights.
(d) To the knowledge of Ashland, no person has raised any objection or claim regarding the ownership, validity or enforceability of the Intellectual Property Rights or the rights of Ashland or the Asset Sales Corporations to exercise, sell or license any Intellectual Property; Duly, Ashland also received no such written complaint.
Section 5.11.Ownership of Transferable Assets.
Subject to permitted liens and proposed liens, Ashland and each asset sales company shall be entitled to or in the case of leased tangible personal property, fleet vehicle leases or leased real estate referred to herein.Anhang 5.8(b)(i)
, valid leasehold rights to all of its transferred physical assets (other than Intellectual Property Rights, which are the subject of Section 5.10).
Section 5.12.Sufficient assets.
Except for (a) the exclusion of Excluded Assets (other than the Excluded Assets described in Section 2.4(a)(xiii)), (b) the property, services and other obligations of the parties under any Addendum, and (c ) to the extent the business requires certain general and administrative support services and related computer software programs currently provided to the Company by Ashland and Asset Sales Corporations and certain of their affiliates and provided that (1) Purchaser may do so by providing corporate-level services currently provided to the Company by Ashland and the Asset Selling Corporations and certain of their subsidiaries, including accounting, human resources, legal, treasury, information technology, environmental logistics, health services and security and other support services, (2) that Buyer will benefit from (A) any agreements entered into pursuant to Sections 2.3(a), 2.3(c) and 7.1(b) to provide Buyer with the benefits of the Transferred Assets; Assets, Sharing Agreements and environmental licenses in accordance with these Sections and (B) the benefit of any services provided to Buyer under the Transitional Services Agreement and the Commercial Agreements and (3) Buyer owns or creates legal entities in any required jurisdictions and which such legal entities acquire the requisite business qualifications to conduct business in those jurisdictions, the assets transferred and the rights, goods and services subject to the changes constitute all assets necessary for the conduct of business immediately upon completion in all material respects as currently conducted by Ashland and the Asset Selling Corporations;
Section 5.13.Compliance with Laws.
Except as otherwise provided in this Agreement, Ashland and each Asset Selling Company shall comply with all laws (other than environmental laws, tax laws, or laws relating to employee benefits or labor matters) applicable to the ownership of assets transferred during the operation of the agreement, unless failure to comply would not have a material adverse effect on or materially delay Ashland's ability to complete the proposed transactions.
Section 5.14.environmental issues.
(a) (i) Neither Ashland nor the Asset Sales Corporations has caused or permitted to Ashland's knowledge the use, placement, storage or disposal of any Hazardous Material on or under any Transferred Property or Owned Site except in accordance with Environmental Law and (ii) neither the business, including that part of the business to be conducted on or over the Transferred Property, nor any Transferred Property is and has not been, to the knowledge of Ashland, during the five (5) years prior to the Date of this Agreement in violation of any applicable environmental law or government permit, except in cases of non-compliance or violations that would not result in a material adverse effect.
(b) For the time being, neither Ashland nor the Asset Sales Corporations have received any environmental notices arising out of or related to the operation or conduct of the business, including the portion of the business conducted on the Transferred Property or the ownership or operation of a transferred asset, the content of which has not been resolved or, if pending, would have a material adverse effect.
(c) No order or proceeding has at this time been issued or pending against Ashland or any other Asset Selling Entity relating to any violation of any applicable environmental law or governmental regulation, or any permit or release of hazardous materials (in each case , to the extent any of the foregoing relates to the transferred assets or the operation or management of the Company), except that such breach or disclosure would not have a Material Adverse Effect
(d) During the five (5) years prior to the date of this Agreement, to Ashland's knowledge, there has been no accident or sudden fortuitous event involving Ashland's ownership or operation of the Company or any transferred property involving the exposure of any person to a hazardous material that could reasonably be expected to form the basis of a claim for damages or compensation that would have a material adverse effect
This Agreement lists all transferred properties and all off-site locations (i) where Ashland is currently engaged or financially involved in an assessment, response, removal, remediation, remedial action, or related monitoring activity to address a release of Hazardous Material; , which occurred prior to the date of this Agreement, or (ii) with respect to which Ashland has received written notice of potential claim or written notice of potential liability with respect to any release of hazardous material prior to the Closing Date that may occur in the future as a result of an assessment, response, removal, remediation, corrective action or related monitoring activities.
(f) Except as provided in Sections 5.4, 5.8(a) (relating to Liens), 5.15 and 5.16, the representations and warranties in this Section 5.14 constitute Ashland's exclusive representations and warranties with respect to environmental matters.
Section 5.15.No arguments or orders.
(a) At this time, Ashland or any Asset Selling Company does not have any pending or written threat of litigation against Ashland in connection with the Transaction that (i) would have a Material Adverse Effect (if determined); harmful to Ashland or the relevant Asset Sales Company); or (ii) would limit, prohibit, invalidate, suspend, cancel, impede or render illegal this Agreement or the operation of this Agreement and the proposed Transactions.
(b) Neither Ashland nor any Asset Selling Corporation has any outstanding Claims with respect to the Business that would have a Material Adverse Effect;
Section 5.16.the government allows.
contains a list of (i) any material regulatory approvals that constitute a Transferred Asset (only for the purposes of this Section 5.16, all approvals necessary for the transfer of such regulatory approvals to the buyer shall be deemed to have been obtained) and (ii) all material permitted by the government, non-transferable to the buyer, from time to time held or sought by an asset sales company in connection with the ownership of the transferred assets or the operation of the business (other than business licenses, tax registration, export). /Import permits and other similar government permits of general application). Neither Ashland nor any Asset Sales Company has received written notice that any governmental approval constituting a Transferred Asset is not in full force and effect and no claim or proceeding is pending. Knowledge of Ashland has threatened to revoke this government approval for revocation or limitation.
Section 5.17. To drive.
There are no tax charges (other than allowable charges and scheduled charges) on the transferred assets. With respect to any material tax relating to any tax period prior to the Closing Date for which Buyer may be liable (successor or otherwise), (i) all tax returns required to be filed with respect to such tax have been filed and each such tax return is complete in all material respects true and complete, (ii) all taxes due or payable have been paid in full, (iii) no taxing authority has filed a written claim against such tax and no taxing authority has any exemption, lack or inconsistency with respect to such claimed or proposed tax adjustments and (iv) no audit or administrative work or legal proceeding with respect to such taxes is pending or ongoing.
Section 5.18.Work matters.
(a) With respect to employees, Ashland and the Asset Sales Corporations shall at all times for a period of four years up to and including the Termination Date comply with all applicable laws relating to labor and employment practices, payroll taxation, etc. etc. social security, terms of employment, wages and hours, except in cases of non-compliance or violations that do not have a material adverse effect.
(b) Ashland and each Asset Sales Corporation shall provide Buyer with accurate and complete copies of all applicable employment contracts for employees principally located in the United States and all applicable policies relating to the employment of current employees principally located in the United States and are located in the United States. Within thirty (30) days of the date of this Agreement, Ashland and each Asset Sales Corporation shall provide Buyer with accurate and complete copies of all applicable employment agreements for employees located outside the United States and all applicable policies relating thereto regarding the employment of current employees located primarily outside the United States.
(c) In relation to employees, except in contracts provided for inAppendix 5.18(c)
(pass away"union contracts
") neither Ashland nor any Asset Selling Corporation is a party to or bound by any union agreement or collective bargaining agreement, except as set forth inAppendix 5.18(c)
To Ashland's knowledge, there is no such contract or agreement in effect or being negotiated by or on behalf of Ashland or an asset sales company and there is no employee advisory body representing employees.
(d) Unless otherwise statedAppendix 5.18(d)
During the 90 days prior to the date of this Agreement, Ashland did not cause the termination of any employees billed solely from a business cost center located primarily in the United States.
Section 5.19.Employee bonus.
lists all major employee benefit plans as of publication date. With respect to each of these Seller Benefit Plans maintained for the benefit of employees primarily located in the United States (and any trust, policy or fund related thereto), Ashland will provide Buyer with true and complete copies of all documents of the plan and brief descriptions of the plan, the most recent determination letter (or opinion letter) received from the IRS, the most recent annual Form 5500 reports, and the most recent actuarial report. Within thirty (30) days of the date of this Agreement, Ashland and Asset Selling Corporations shall provide Buyer with each material seller benefit plan maintained for the benefit of employees primarily residing outside the United States and the most recent actuarial report for each of these apartments benefits seller.
(b) Ashland and the Asset Sales Corporations have made by the Closing Date all payments (including premium payments with respect to insurance policies) required to be made by them under any Seller Benefit Plan with respect to Buyer or any other entity; of Purchaser hereunder to be on or before the Closing Date and to have accrued (in accordance with GAAP as consistently applied by Ashland and subject to the Account Closing Principles) as of the Closing Date all payments (including premium payments related to insurance policies) due but not yet payable on the Maturity Date.
(c) Neither Ashland nor any Asset Selling Corporation has incurred any unpaid obligation to the Pension Benefit Guaranty Corporation or Seller's benefit plan under Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA that would result in imposing material liability on any Buyer or other purchasing company.
(d) Any Seller Benefit Plan for which Buyer or a purchasing entity may have material responsibility under this Agreement shall operate and have operated in all material respects in accordance with its terms and all applicable laws, including ERISA and Code. With respect to each of the seller's benefit plans that qualify under Section 401(a) of the Code, the IRS has determined that each such plan is eligible for incorporation and each trust that is a part of it has been determined to be exempt from taxes from the IRS under Section 501(a) of the Code. To Ashland's knowledge, there is no reason that could reasonably cause this eligibility to be revoked for any period of time.
(e) Neither Ashland nor an Asset Selling Corporation has entered into any written agreement, agreement or understanding with any union, labor council or other employee representative body or any number or class of employees of such union, labor council or other employee representative body, except for Plans Seller Benefits and union employee agreements that exclude, limit or prevent the implementation of any layoff, layoff, termination or similar employee-related program.
(f) There has been no termination or partial termination within the meaning of Section 411(d)(3) of the Seller Benefit Plan Code governed by Title IV of ERISA.
(g) Except as provided belowAppendix 5.19(g)
or as expressly provided in this Agreement, neither the execution and delivery of this Agreement nor the consummation of the contemplated Transactions (i) will result in any payment (including severance, unemployment insurance, golden parachute, bonus or otherwise) to any Member; . (ii) significantly increase any benefits that Ashland or an Asset Sale Company would otherwise pay to an employee; (iii) result in an acceleration of the payment or vesting period of any award or benefit or result in additional service credits under a Seller Benefit Plan, each with respect to an employee; or (iv) result in an asset of the Seller The Company or another von Ashland partner that is an employer participating in a UK defined benefit plan ceases to contribute fully to that UK defined benefit plan.
lists each supplier benefit plan that provides compensation to employees in the form of equity or stock in Ashland or an asset sales company.
(i) As of the date hereof, neither Ashland nor any Asset Selling Corporation has an unsatisfied obligation (including a cancellation obligation) under a "multiemployer plan" (as defined in Section 3(37) or Section 4001(a) ( 3 . ) received. from ERISA), in addition to regular contributions.
(j) To Ashland's knowledge, no pending litigation has been instituted or asserted against any of Seller's benefit plans, the assets of any of the funds under such plans, the plan sponsors, the plan administrator or any administrator of this program (other than routine benefit claims), which may result in the imposition of material liability on the purchaser or a purchasing entity. There has been no investigation or review by any governmental agency with respect to any of the Benefit Plans or Trusts under such Plans, the Plan Sponsor, the Plan Administrator or any administrator of any Plan established or, to the knowledge of Ashland, threatened.
Section 5.20.Compliance with the Foreign Corrupt Practices Act
(a) Since January 1, 2008, none of Ashland, an Asset Sale Company or, to the knowledge of Ashland, any director, officer, employee, agent or other representative of Ashland or an Asset Sale Company has been found guilty of of the violation committed against the United States The Foreign Corrupt Practices Act of the United States, as amended (the “FCPA
") and acquire or maintain a business connected with the business, offer, pay or pay or authorize the payment of money or other things of value, directly or indirectly, to:
(i) any officer, employee or person acting in an official capacity for or on behalf of a foreign government (or any department, agency or agency thereof) or public international organization (as defined in the FCPA); ;
(ii) any foreign political party or official thereof;
(iii) any candidate for political office abroad; or
(iv) any person who knows that all or part of such money or thing of value is offered, given or promised, directly or indirectly, to a foreign public official, a foreign political party or any of its officials, or a candidate for a foreign office.
(b) Ashland and each Asset Sales Corporation shall maintain a system of internal accounting controls designed to provide reasonable assurance that:
(i) transactions are carried out only in accordance with the general or specific approval of management and access to the assets is permitted;
(ii) transactions are recorded to the extent necessary to permit the preparation of financial statements in accordance with Ashland's consistent application of GAAP or other criteria applicable to those financial statements and to maintain accountability for assets; AND
(iii) the recorded accounting of assets is compared with existing assets at appropriate intervals and appropriate action is taken to address any discrepancies.
Section 5.21. Real estate agents.
With the exception of Bank of America Merrill Lynch, no broker, intermediary or investment banker will be entitled to any brokerage, brokerage or other fees or commissions in connection with proposed transactions based on agreements entered into by or on behalf of Ashland.
Section 5.22.Disclaimer of other representations and warranties.
Except as expressly set forth in Section 5, neither Ashland nor any Asset Sales Corporation makes any representations or warranties, express or implied, by operation of law or equity, with respect to this Agreement, the Proposed Transactions, the Ancillary Agreements, the Transfer Assets, Company or any information provided or made available to Buyer in connection with the contemplated transactions, including any warranties of merchantability or fitness for a particular purpose, and all other representations or warranties are expressly disclaimed.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Ashland that:
Buyer is a limited liability company duly incorporated under the laws of Delaware, validly existing and in good standing (to the extent such a term is known in the applicable jurisdiction).and has full power and authority to own its property and carry on its business in the places where such property is now located or such business is carried on. Each purchasing company is duly organized, legally existing and in good standing (as applicable). (the meaning of which is known in the relevant jurisdiction under the laws of the jurisdiction of its organization) and each acquiring company has full power and authority to own its properties and carry on its business in the places where such properties are now located or such companies are carried on now, unless the lack of such power and authority would not have a material adverse effect on the purchaser.
Section 6.2.Power; binding effect.
(a) Buyer has full power and authority to enter into this Agreement. Buyer and each of the Buyer Companies have full power and authority, corporate and non-corporate, to enter into the amendments to which they are a party and to perform their respective obligations hereunder (as the case may be). This Agreement and the supplemental agreements to which Buyer and any of Buyer's companies are parties have been duly approved and approved by any corporate or other necessary action.
(b) Subject to the proper approval, execution and delivery of this Agreement by Ashland, this Agreement constitutes a legal, valid and legally binding obligation of Buyer, enforceable against Buyer in accordance with its terms, unless performance is prevented by bankruptcy or bankruptcy, reorganization, moratorium or similar legislation affecting the rights of creditors generally. Assuming proper approval, execution and delivery of the Changes by Ashland or the relevant Asset Selling Corporation, as the case may be, any Change to which the Purchaser or any purchasing company is a party, after delivery under this Agreement, shall be deemed fair and duly executed and delivered and is a legal, valid and binding obligation of the Buyer or the relevant Buyer Company (as the case may be), enforceable on its terms, except: where performance is due to bankruptcy, insolvency, reorganization, moratorium or similar laws may be limited which affect the rights of creditors in general.
Section 6.3.not a violation.
The execution, delivery and performance by Buyer of this Agreement and any Addendums to which it is a party, and the execution, delivery and performance of any Addendums to which it is a party by any Buyer entity and the consummation of the proposed Transactions, shall not (i ) violate, violate any provision of the organizational documents of Buyer or the relevant Buyer Company, or (ii) assume compliance with the matters set forth in Sections 5.4 and 6.5, constitute a violation of such provisions or result in a violation or constitute a default under any law or order to which the purchaser or the purchasing company is subject.
(a) Purchaser has received (i) a signed commitment letter dated as of the date of this Agreement (including all Schedules, Schedules and amendments as of the date of this Agreement) that “debt acceptance letter
"), κάνουν Bank of America, N.A. e Merrill Lynch, Pierce, Fenner & Smith Incorporated (coletivamente, a "lender
') to provide up to $600,000,000 in debt financing to Purchaser at closing (the “debt financing
') and (ii) a signed letter of assignment dated as of the date of this Agreement (including all Attachments, Attachments and Amendments as of the date of this Agreement that are "Capital Commitment Letter
" and together with the Commitment Letter the "engagement letter
'), by TPG Partners VI, L.P., an affiliate of Buyer (the 'sponsors
') to provide the Purchaser with up to $400,000,000 in equity financing (the “financial balance
and along with debt financingfinancing
"). Proceeds from the financing or any alternative financing agreed upon pursuant to Section 7.6(c) will be used to pay the Purchase Price and fees and expenses related to the Proposed Transactions and Transactions under the Enabling Agreements. The buyer has provided Ashland with a true, complete, accurate and fully executed copy of each Commitment Letter and has provided Ashland with a true, complete, accurate and fully signed copy of each Commitment Letter entered into in connection with the Alternative Financing. a valid, legal, binding and enforceable obligation of the parties. The engagement letter so provided is in full force and effect and constitutes a valid, legal, binding and enforceable obligation known to Buyer and Buyer to Buyer and the other parties (is offeredthat if the Purchaser has entered into Alternative Financing, the term "Debt Commitment Statement so provided" shall be construed for the purposes of this decision as a commitment statement in connection with such Alternative Financing. Any Alternative Financing agreed to pursuant to Section 7.6(c) (including any new Financing Commitments) effective after the date hereof (x) shall be from the date of execution of the relevant Commitment Letters until the Closing Date or otherwise; whichever comes first, will be in full force. Once the replacement alternative financing (including a new financing commitment) is created in accordance with Section 7.6(c) and (y), it shall be a valid, legal, binding and enforceable obligation of the Buyer, subject to the buyers' knowledge of other parties. Further (i) except as expressly permitted in Section 7.6(c) or with the express written consent of Ashland, (x) no Commitment Letter (or any Commitment Letter related to the Alternative Financing) has been amended, modified or modified by otherwise, (y) the funding commitments in any Commitment Letter (or any Commitment Letter related to Alternative Financing) have not been withdrawn or cancelled; and (z) the Funding Commitments in any Commitment Letter (or any Commitment Letter related to alternative financing) have not been canceled in any way (and no party has indicated an intention to do so).
withdraw), (ii) none of the Purchasers or their affiliates is in breach of any term or condition set forth in any Commitment Letter (or any Commitment Letter relating to Alternative Financing). and (iii) provided that the representations are accurate and Ashland's warranties comply with Section 5, in all material respects and as of the date of this Agreement, no event has occurred which, with or without notice, would lapse of time or otherwise, could be considered a breach by the Buyer Party of any term or condition of the Indemnity Letter. Buyer has paid in full all commitment fees and other fees related to commitment letters (or any commitment letter related to alternative financing) payable as of the date of this Agreement and will pay all fees due in the future. There are no side letters or other agreements, arrangements or understandings (written or oral) relating to the financing (other than commitment letters and fee letters) to which the Purchaser or any of its Affiliates (including the Sponsor Fund) is a party part. party that imposes additional conditions precedent to the completion or availability of the Debt Financing or Alternative Financing or that may otherwise affect or delay the completion or availability of the Debt Financing or Alternative Financing.
(b) Assuming the accuracy of the representations and warranties set forth in Section 5 in all material respects and compliance with Ashland's obligations under Section 7.6 and subject to compliance with or waiver of the conditions set forth in Sections 4.1 and 4.2 , pursuant to paragraph As of the date of this Agreement, Buyer has no reason to believe that any term of the Financing Commitment (or alternative financing that may be contemplated in a future Alternative Financing Commitment Letter) will not be satisfied on the Expiration Date or that the Financing or any part thereof (or, if alternative financing is agreed to in Section 7.6(a), the Alternative Financing or any part thereof) shall not be available to Buyer on the Closing Date. The net proceeds of (i) the Financing, if funded pursuant to the Closing Commitments, or (ii) in the event that Alternative Financing is obtained pursuant to Section 7.6(a), such Alternative Financing, if funded pursuant to the related Commitments , constitute all of the financing required to consummate the Proposed Transactions under this Agreement and sufficient to satisfy all of the obligations of the Purchaser under this Agreement and the performance of any Agreements, including the payment of the Purchase Price and all other amounts due in connection with the consummation of the Proposed Transactions and the Transactions under the Fulfillment Agreements. There are no conditions precedent or other contingent liabilities (not even in a letter of consideration between the buyer). and the creditors (theFinancial Note
)) (i) the availability of "Flexible Purchase" provisions set forth in a Commitment Letter (or Commitment in respect of Alternative Financing) or Fee Letter (or Commitment Letter in respect of Alternative Financing), (ii) except as specifically set forth in Debt Commitment Letter (or in any Alternative Financing Commitment Letter), the obligations of all creditors to finance the Debt Financing or any Alternative Financing that replaces the Financing and (iii) other than the Capital Commitment Letter expressly provided, limited to the commitment of the Fund Sponsor for financing the Financing with shares.
Section 6.5.Regulatory Approvals and Buyer Authorizations.
Except as set forth inAppendix 6.5
To the best of Buyer's knowledge, the execution and delivery of this Agreement and the Amendments by Buyer and the relevant Buyer Companies and the performance of their respective obligations under this Agreement and the relevant Buyer Companies by Buyer and the relevant Buyer Companies have not subject to and will not be subject to the filing or release, consent or approval of any governmental authority, except for any filing, release, consent or approval the failure of which would not have a material adverse effect on Buyer.
Section 6.6.Certain Procedures.
As of the date of this Agreement, no action is pending against Buyer or any purchasing entity, nor is Buyer aware that any written action pending or threatened by any governmental authority seeking to restrain, prohibit, void, terminate or terminate would prevent or would render this Agreement or the performance of this Agreement and the proposed transactions illegal.
Section 6.7. Real estate agents.
No broker, agent or investment banker is entitled to any brokerage, agent or other fees or commissions in connection with proposed transactions based on agreements entered into by or on behalf of the buyer.
Section 6.8.Sponsor's guarantee.
Concurrently with the execution of this Agreement, Purchaser has provided Ashland with a limited guarantee dated as of the Agreement Date through the Sponsor Fund securing certain of Purchaser's obligations under this Agreement (the “Sponsor's guarantee
"). The Sponsor Guarantee is in full force and effect and constitutes a valid, legal, binding and enforceable obligation of the Sponsor Fund. No event has occurred that would constitute a default, with or without notice, lapse of time or both. Nothing in This Section 6.8 shall not be construed to limit in any way Ashland's right to seek one or more injunctive relief to prevent violations of this Agreement and specifically to enforce the terms and provisions of this Agreement as provided in Section 11.17 and subject to limitations set forth in Section 11.17.
Section 6.9.buyer research.
Each buyer and purchasing company will acquire the transferred assets solely on the basis of the results of their inspections and investigations and not on the basis of any representation or warranty by Ashland or any asset selling company not expressly set forth in this Agreement.
Section 7.1.efforts of the parties.
(a) Subject to the terms and conditions contained herein, each party agrees to use its best efforts to take or cause any action and cause or causes to take place by February 28, 2011 or as soon as practicable thereafter , all things required by applicable law to consummate and consummate the proposed transactions, including (i) prompt compliance with any legal requirements that may be imposed on it in connection with this Agreement and that may be provided;
Transactions (which include providing any information required by applicable law in connection with any licenses, issuances or consents from or on file with any governmental authority), (ii) obtaining any consent, authorization (including any governmental approval and related warranties ), letter of credit or other financial guarantee), purchase orderor any approval or waiver from any governmental agency or other third party, public or private, that must be obtained by Buyer, Ashland or any asset sales company in connection with the acquisition of the Transferred Assets or the taking of any related action that provided for in this Agreement and (iii) complete all required registrations and filings with governmental agencies. 160;Without limiting the foregoing, Ashland shall be responsible, at its own cost and expense, for compliance with all applicable requirements of the Industrial Site Remediation Act ("Industrial Site Remediation Act").ISRA
") in connection with the Proposed Transactions and prior to the Closing Date, Ashland is required by the New Jersey Department of Environmental Protection ("NJDEP
') and must provide Buyer with (i) a "No Further Action Letter" (as defined in ISRA), (ii) a negative promise (as defined in ISRA), or (iii) an approved corrective action plan, or agreement ( as such terms are defined in ISRA) or (iv) any other written acknowledgment by NJDEP of an applicable waiver, waiver or approval permitted by ISRA.
(b) Without limiting Sections 2.3 or 7.1(a), Buyer, Ashland and the Asset Sales Companies shall cooperate in transporting, receiving or arranging for transportation or collection prior to the Closing or as soon as practicable thereafter, of any governmental approval, granted or required by environmental law, required by Buyer to own or operate the Company or the Transferred Assets (""environmental permits
During the period commencing on the date of this Agreement and ending one hundred eighty (180) days after the Closing, which 180 day period may be extended in 30 (thirty) day increments by mutual agreement of the parties;Provided thatIn no event shall this aggregate period, including any renewals, expire later than twelve (12) months after the Expiration Date. (i) Buyer, Ashland and Asset Sales Corporations shall provide or cause the other parties to provide the other parties with any commercially reasonable assistance reasonably necessary in connection with the warranty (and/or termination if required by law or environmental regulations) of such required environmental permits, and (ii) if environmental permits are not obtained prior to Buyer's Closing, Ashland and the Asset Selling Corporations will use commercially reasonable efforts to cooperate in any reasonably proposed legal and reasonable agreement by either party; pursuant to which the Purchaser obtains the benefits of any environmental permits held by Ashland or the Asset Selling Companies in connection with the ownership or operation of the business or assets transferred after the Closing;is offeredthat such support and cooperation shall not entail any obligation to pay any consideration to any third party or governmental authority from which such environmental permits are sought pursuant to this Section 7.1(b), or to initiate, defend or participate in any dispute; or offer or grant any accommodation (financial or otherwise) to third parties; ANDis offered payment in advancethat Buyer will indemnify and hold Ashland Indemnitees harmless from any loss or liability arising out of or in connection with any environmental permit held by Ashland or the Asset Sales Corporations on Buyer's behalf pursuant to any agreement entered into pursuant to clause (ii) to the extent that they refer to a period of such agreement.
(c) Without limiting Section 7.1(a), (i) End Purchaser and Ashland shall negotiate in good faith to complete the schedules of the Commercial Agreements and Interim Agreements as provided in the forms of such Agreements attached hereto. and (ii) Ashland shall furnish to Purchaser by December 31, 2010 the Company's audited balance sheet and statement of invested capital, each as of September 30, 2010, and its audited statement of income and cash flows for the twelve month period then ended December 30, 2010 September 2010 and related notes, each of which has been prepared based on the financial statements.
(d) Prior to the Closing, Ashland will terminate or amend or reorganize each of (i) the Amended and Restated Transfer and Management Agreement dated March 31, 2010 by and among CVG Capital II LLC, a special purpose entity owned by ( “CVG”) , the Purchaser, certain conduits and independent investors referred to therein, Bank of Nova Scotia, PNC Bank, National Association, SunTrust Bank, SunTrust Robinson Humphrey, Inc., Wells Fargo Bank, National Association and various other group investors, managing agents, letter from the credit issuers and trustees that are parties to the agreement (the “TAA”) and (ii) the Sale Agreement dated November 13, 2008 between the Purchaser and CVG, as amended pursuant to the First Amendment to the Sales Agreement dated March 31, 2010 (the “Sales Agreement” and together with TAA, the “Accounts Receivable Securitization Facility”) in a manner that permits Ashland and the Sales Corporations to transfer trade receivables (other than assigned receivables) to the Purchaser and the purchasing companies in a manner normally accepted by asset-backed creditors for the purpose of securing asset-backed financing lines.
Section 7.2.Certain Government Matters.
(a) Without limiting the generality of the obligations under this Section 7.2, Buyer and Ashland agree to undertake or undertake to: (i) promptly notify any governmental agency having jurisdiction to enforce any applicable competition laws ("State Competition Authority
") information and documents required by any governmental competition authority or necessary, appropriate or appropriate in connection with the proposed transactions; and (ii) without limiting in any way the other provisions of this Section 7.2, file all disclosure forms and report the HSR Act and related materials required by any competition law, including the EU merger regulation, in relation to the Proposed Transactions as soon as possible, and then use reasonable efforts to respond as quickly as possible to any requests for additional information or documentation submitted under these competition laws From the date of this Agreement and until all required governmental approvals are obtained in connection therewith with the proposed transactions, Buyer will not conduct its business or undertake any action that may reasonably involve a risk that none of these government transactions will be consummated and will also cause each purchasing company to fail to obtain approval or release or the expiration or termination of any applicable waiting period.
(b) Both Ashland and Buyer (i) shall keep each other informed of the status of communications and requests or requests for additional information from any governmental competition authority and, to the extent possible, promptly respond to such requests or requests; Ashland and Buyer shall cooperate with and advise each other in making all filings, notices and other material actions pursuant to this Section 7.2, including, subject to applicable information exchange laws, allowing counsel other than the other party, any proposed written notice to a state competition authority and taking the other party's views thereon in good faith and providing the other party with copies of all documents and submissions filed by that party and all correspondence and other written communications between that party (and its advisors) and a state competition authority and any other information provided by that party and Ashland, the Asset Sales Companies or the Purchaser or Purchaser Companies, as the case may be, in a state competition authority or to that state competition authority in relation to the Proposed Transactions.however it is plannedthat the material can be processed before it is made available to the other party
(x) remove references to company valuation, (y) if necessary to comply with contractual agreements and (z) if necessary to resolve valid privilege or confidentiality issues and (ii) provide such information and assistance to others parties as such parties may reasonably require in connection with the preparation of depositions or regulatory proceedings by a state competition authority. Subject to and without prejudice to the provisions of this Section 7.2, each party agrees to cooperate and use its best efforts to assist in the other party's defense of the Proposed Transactions before a governmental competition authority reviewing the Proposed Transactions, including of providing any of the Proposed Transactions Transactions Proposals any information requested by a government competition authority or any assistance that may reasonably be requested by the other authority, as soon as possible, party to this defense.
(c) If any objection to the Proposed Transactions is raised by any state competition authority under applicable competition law or otherwise materially prevents, impedes or delays the completion of the Proposed Transactions or if any action is taken by any state competition authority or private party objects to any Proposed Transaction for violating applicable competition law or an injunction is issued prohibiting the Proposed Transactions, Ashland and Buyer will use their best efforts to resolve such objections or claims to the best of their ability to allow the consummation of the Proposed Transactions consummation, including the resolution of any objection or claim which, in any event, if not resolved, could reasonably prevent, impede or materially delay the consummation of the Proposed Transactions in the Event that any governmental competition authority or party party privately initiates (or threatens to initiate) any governmental or legal action or proceeding challenging the Proposed Transactions, Ashland and Buyer will cooperate in all respects and use reasonable efforts to contest and oppose any such action or proceeding; including the defense of the merits of any claim brought by any person in any court and the annulment, annulment, annulment or annulment of any order, judgment, injunction or other injunction, of a temporary, temporary or permanent nature, which is in force and which prohibits, prevents or restricts carrying out the proposed transactions.
(d) Both Ashland and Buyer will use their best efforts to obtain the expiration or termination of applicable waiting periods as soon as possible in accordance with applicable competition law. Ashland and Buyer shall not, directly or indirectly, extend such waiting period or enter into any agreement with any governmental competition authority to delay or fail to consummate the Proposed Transactions on the Closing Date, unless the other party to this Agreement has previously agreed in writing. Ashland and Buyer shall have no material contact with any state competition authority in connection with any filing or proceeding contemplated by this Section 7.2, unless Ashland consults with the other party in advance and, to the extent permitted by this state competition authority, provide the other party with an opportunity to participate.
(e) Without limiting the foregoing or any other provision of this Agreement, Buyer shall use reasonable efforts to take all necessary steps to avoid and remove any individual impediment under applicable United States competition law, if the is made by a governmental authority in The United States is required to facilitate the consummation of the proposed transactions, including (i) the proposal, negotiation, commitment and consummation of the sale, disposition or otherwise by Consent Decree, separately, as soon as practicable , indemnification or other disposition of the respective businesses, product lines or assets of Buyer and each Buyer Company (including the Transferred Assets) and (ii) otherwise use reasonable efforts to take or undertake to take any action that, with the consummation of the Proposed Transactions, restrict the Purchaser or the Purchaser Companies' freedom to act with respect to, or their ability to maintain, the business, product lines or assets (including the Transferred Assets) of the purchaser or company purchasers, in each case, to the extent necessary to waive or waive any injunctive relief, injunctive relief or other injunction in any action or proceeding under the United States competition laws that would otherwise have the effect of preventing or substantially delay in completing the proposed transactions. Buyer and the Buyer Entities agree not to dispose of, sell, dispose of, hold separately or otherwise take or take any action that limits their freedom to act with respect to Buyer's or Buyer's rights. Business (including transferred assets) if required by a US government agency.is offeredthat such action is contingent upon the completion of the proposed transactions;
Section 7.3.Update schedules.
(a) Prior to the Closing Date, Ashland (x) shall update the Schedules with additional material disclosures and (y) may, in its sole discretion, update the Schedules with such additional disclosures as have occurred in each case; or when first discovered since the date of this agreement;is offeredthat nothing in this Section 7.3 shall limit Ashland's obligation to notify;Anhang 7.5(a)
, as defined in Section 7.5(a). In the event that Ashland updates the schedules pursuant to this Section 7.3, Ashland shall provide such additional disclosures to Purchaser by written notice pursuant to Section 11.1 in the case of notices provided pursuant to paragraph (x), promptly after it is notified. management of Ashland and in the case of disclosures made pursuant to clause (x) or paragraph (y), no later than ten (10) business days prior to the Closing Date.
(b) Upon receipt of such notice, Buyer shall have up to (i) five (5) Business Days after receipt of such notice and (ii) two (2) Business Days prior to the Closing Date to timely terminate this Agreement at an earlier date pursuant to Section 8.1(d) if, as a result of the notice, the condition precedent to Buyer's obligation to close pursuant to Section 4.2(b) or (d) is not satisfied by providing Ashland with a written notice pursuant to Section 11.1 . If Buyer does not exercise this right of termination, the additional disclosures provided by Ashland will be considered part of the plans delivered to Buyer on the date of this Agreement for the sole purpose of determining whether the condition precedent to Buyer's obligation as set forth exists in Section 4.2 (b) or (d) the conditions to close are met. For the avoidance of doubt, such additional disclosures regarding damage claims relating to representations and warranties made after the date of this Agreement are disregarded.
(c) Subject to the foregoing, each party acknowledges that this Section 7.3 is not intended to delay or postpone the Expiration Date and, except as set forth in this Section 7.3, the exercise or non-exercise thereof; by any party of any right, power or privilege under this Section 7.3 shall not constitute a waiver of any other right, power or privilege of such party under this Agreement.
(d) Prior to the Closing Date, Ashland shall notifyAppendix 1.1(d)
with any additional disclosures regarding transferred real estate or off-site locations that arise or are first discovered after the date of this Agreement and for which Ashland received prior written notice or written notice of liability prior to the closing date of any potential claim with respect to release of hazardous material that may lead to further evaluation, response, removal, remediation, corrective action, or related monitoring activities.
Section 7.4.Certain tax matters.
.(i) Buyer and Ashland agree to provide or cause to be provided to each other, upon timely request, such information (including access to books and records) and assistance regarding the business and the Transferred Assets for the completing a tax return, preparing or conducting an audit or to initiate or defend a tax claim, action or proceeding.
(ii) Ashland shall maintain or cause to be maintained all of its tax and accounting books and records (including all electronic books and records and any information stored in any other medium) and those from the sale of any corporate assets; entity, each tax -Relevant for any straddle - The tax periods until the end of the applicable assessment period under applicable law (in effect for any renewal or waiver) (“retention period
') and comply with any record retention agreements entered into with a tax authority.
(iii) To the extent required by Ashland and at Ashland's expense, Buyer shall reasonably cooperate with Ashland in requesting and obtaining any available tax refunds for tax periods prior to the Effective Date.
.(i) Subject to Section 7.4(b)(ii), the specified consideration for all deliveries of goods and services made or deemed to have been made in connection with or in connection with the consummation of the transactions contemplated by this Agreement , the Implementation Agreements and which transitional agreements do not include VAT. Ashland and Buyer shall cause each of their respective Affiliates receiving the relevant supply to pay to the person making such supply (in addition to the specified consideration) all VAT for which person making supply A is required to by the tax authority to collect VAT on this supply. All VAT payable under this Agreement, Implementation Agreements and Transitional Agreements shall be payable two (2) business days before such person becomes liable. and the Supplier must provide a VAT invoice duly completed and completed in accordance with applicable tax legislation.
(ii) The parties intend that any sale of the Transferred Assets within the EU will be treated as a TOGC by the relevant tax authority and the parties will use all reasonable efforts to ensure that such sale is treated as such. This obligation is not mandatory. Ashland may appeal to a court or arbitral tribunal against a tax authority's determination that the Sale does not constitute a TOGC, unless Buyer has promptly notified Ashland that such an appeal or challenge is necessary and Ashland agrees to indemnify Ashland against any sunk costs and expenses that Ashland may incur in taking such necessary actions.
(iii) Ashland and the Buyer ensure that the person who, at the time of the contract, keeps VAT records in relation to the Company, will keep such records for the periods required by applicable tax law and will provide them to the other party or permits its agents during such periods to have the opportunity, at any time and subject to reasonable written notice, to inspect and copy such records at the expense of the person requesting such inspection and/or copies.
(iv) If the relevant tax authority ultimately determines that the sale of the assets transferred under this Agreement does not constitute a TOGC, the purchaser must arrange for the applicable VAT to be paid by the relevant Affiliate to Ashland. All VAT documentation provided by Ashland to the Buyer or the Buyer's affiliate must be returned to Ashland 2 business days before Ashland is responsible for it and with a duly completed VAT invoice completed in accordance with applicable tax law. Buyer shall indemnify or cause such affiliate to indemnify Ashland after taxes for any penalties and interest incurred by Ashland to any taxing authority in connection with such VAT.
.(i) All refundable and non-refundable transfer, document, sales, use, stamp, registration and other similar taxes and all transfer fees, record keeping fees and other fees and charges (e.g. taxes, fees and charges; including any penalties) . or interest, but excluding VAT, "transfer taxes
') incurred in connection with the consummation of the transactions contemplated by this Agreement, the Implementation Agreements and the Transition Agreements, and the cost of filing all required tax returns and other documents relating to all such taxes, fees and charges shall arise when borne 50% and paid by Buyer and 50% by Ashland, and Ashland and Buyer shall file all necessary tax returns and other documents required of them with respect to all such taxes, fees and charges and , if required as required by applicable law, the parties will participate in the preparation of such tax returns and other documents and will cause their affiliates to participate.
(ii) If there is a sales tax exemption for any transferred assets, the buyer must provide Ashland or the relevant asset sales company with the appropriate sales tax exemption certificate in a timely manner. If exemptions are available with respect to the Taxes described in Section 7.4(c)(i), Ashland and Buyer shall take commercially reasonable steps to obtain such exemptions.
Ashland will provide Buyer with testimonials (the “FIRPTA-Affidavits
"), duly signed and acknowledging and certifying that Ashland or the applicable Asset Sales Corporation is exempt from withholding taxes pursuant to Section 1445 of the Code and the Government Regulations set forth thereunder in connection with transactions contemplated by this Agreement.
(mi)Tax allocation in tax straddle periods
. For purposes of this Agreement, in the case of any Tax payable in respect of a Straddle Period, the portion of such Tax attributable to the portion of the Straddle Period expiring on the Closing Date shall be:
(i) in the case of taxes (x) based on or relating to income or profits, or (y) imposed in connection with the sale or other transfer or disposition of property (real or personal, tangible or intangible). , deemed equal to the amount that would be due if the fiscal year ended on the Closing Date; AND
(ii) in the case of taxes imposed periodically (eg real estate taxes), the amount of such taxes (or, in the case of retrospective taxes, the amount) will apply for the entire period. such taxes for the immediately preceding period) multiplied by a fraction whose numerator is the number of calendar days in the period ending on the Closing Date and whose denominator is the number of calendar days in the entire period.
(FA)Tax treatment of compensation payments
.Any amount paid by one party to another pursuant to Sections 2.8, 9.1, 9.2 and 11.9 shall be treated as an adjustment to the purchase price for all tax purposes to the extent permitted by applicable tax law.
Section 7.5.Certain employee issues.
a list, to the extent permitted by applicable law, of each employee as of the date of this Agreement, including name, title, place of employment and employer; When an employee's name is replaced by an identification numberAnhang 7.5(a)
To comply with applicable law, Ashland is required to provide an update to this Addendum with the names of these individuals at closing. Ashland will periodically update Exhibit 7.5(a) prior to the Closing Date to reflect any changes in the Company, including additional employees, hirings, retirements, layoffs, layoffs and other terminations of employment, occurring at any time on or prior to Closing Date. . to be;is offeredthat said notification must be made between 10 (ten) and 30 (thirty) days prior to the Expiration Date. Prior to the effective closing or termination of this Agreement, whichever occurs first, Ashland and the Asset Sales Corporations will not negotiate mass layoffs or staff reductions affecting five or more employees at a single central workplace in the United States, without prior written consent of the purchaser.
.(i) If applicable law requires the automatic transfer of an employee's employment upon the consummation of the transactions contemplated herein, the parties shall take or cause to be taken the steps required by applicable law to effect such transfer; work by an employee will be at the conclusion of the contract in accordance with the law to the buyer or to a buyer company. Where applicable law does not provide for the transfer of employment of an Employee upon the completion of the transactions contemplated herein, Buyer shall appoint a Buyer Purchaser or designate a buyer firm to accept offers of employment at will (to the extent permitted by applicable law); subject to the provisions of this Section 7.5, which shall be effective upon the execution of the Agreement (or any later date pursuant to Section 7.5(e)). , to all these workers.
(ii) The parties acknowledge that the transfer of the portions of the business managed by Ashland and European Union Asset Sales Corporations ("UE
') and certain other countries referred toAnhang 7.5(b)
constitutes a transfer of business within the meaning of EU Council Directive 2001/23/EC, national laws applying the same or similar legislation applicable in non-EU jurisdictions and any employee belonging to such parts of the company referred to in this document. European Official' and shall be referred to and referred to as suchAnhang 7.5(b)
, whose program is updated in the same way asAnhang 7.5(a)
as described in Section 7.5(a). The parties further acknowledge that, as a result, the employment of the European Officers, including all related rights and obligations, will be transferred by operation of law to the Purchaser or a purchasing company (as the case may be) as of the Closing Date, unless otherwise specified in this Section 7.5 and unless a European Employee exercises its rights (if any) under applicable law in a timely manner to prevent such transfer, subject to Section 7.5(b)(iii) below (European Employees whose employment is attributable to the Purchaser or to a purchasing company that "European transferees
As a result, the Purchaser or the Purchaser Companies assume, in accordance with law, all liabilities to the European Transferees as of the Closing Date, except as otherwise provided in this Section 7.5.
(iii) The parties will make every reasonable effort to obtain approval from the relevant government authority or labor authority that may be required for the carriage of European workers who may be "protected workers" under applicable law.
(iv) When there is a contract of employment or a contract of employment for a person not registered in theAnhang 7.5(b)
on the reference date or in a collective agreement that is not listedAppendix 5.18(c)
pursuant to EU Council Directive 2001/23/EC or national laws applying the same or similar laws applicable in jurisdictions outside the EU, or purported to have been transferred to the Buyer or to a buyer Company, buyer or buyer may transfer such termination of the Agreement or Ashland shall indemnify and hold harmless Buyer and Buyer Company from all liabilities and reasonable attorneys' fees and expenses incurred, incurred, incurred or paid by Buyer or Buyer Company as a result of any assignment or termination .
.Purchaser shall make offers to employees for employment at will (to the extent permitted by applicable law) in accordance with the provisions of this Section 7.5 at least thirty (30) days prior to the Closing Date (or such longer period as may be required by applicable legislation). required by law or the terms of a union agreement), with actual employment as of the Completion Date (or any later date pursuant to Section 7.5(e)). Any offer of employment will be for a position comparable to the type of position held by such employee immediately prior to the Completion Date and on terms sufficient to avoid legal, contractual,
common law or other termination obligations, unless such termination payment is automatic under applicable law or the terms of a union agreement. Any employee (other than a European employee) who accepts an offer of employment, including those referred to in Section 7.5(e), by Buyer or a Buyer Company, is referred to herein as “ASC transferred employee
"ASC transferees and European salaried employees are together referred to as"transferred employees
“Except as expressly provided in this Article VII or to the extent required by applicable law, Transferees shall apply as of the Effective Date (or a later date on which a Transferee commences business with Purchaser or a purchase entity). activates and obtains benefits from the Seller Benefit Plans.
(HEY)Continuation of Compensation and Benefits
.For a period of eighteen (18) months immediately following the Expiration Date (or such longer period as may be required by applicable law or the terms of any applicable Union treaty), Buyer shall provide (or cause to be provided by the Companies The Buyers) . each Transferring Employee (i) base salary or salaries no less favorable than those provided immediately prior to the Termination Date and (ii) other employee benefits, variable pay, incentives or bonus opportunities under plans, programs and agreements provided on substantially similar terms by Ashland or the applicable Asset Selling Corporation is expected to become effective on January 1, 2011 as set forth belowAppendix 7.5(d)
.Notwithstanding the foregoing, nothing in this Agreement shall be construed to obligate Buyer or any purchasing entity to continue the employment of any Transferee for any period after the applicable Completion Date.
.With respect to employees who are not actively working on the Completion Date due to illness, short-term disability (including maternity leave), workers' compensation or other authorized leave (other than employees whose employment is to be transferred). to Buyer under applicable law), Buyer or the Buyer Company shall be obligated to employ such Employee in accordance with and subject to the provisions of this Section 7.5 from the date of such Employee's termination to return to active duty upon completion of these permits. Ashland or the applicable Asset Sales Corporation or related affiliate shall have the sole obligation to provide compensation and benefits to each employee from the Closing Date through the date he or she becomes a Transferred Employee.
.(i) Ashland and Buyer intend that the transactions contemplated by this Agreement will not result in the termination of employment of any employee prior to or after the closing of the transactions contemplated hereby and that the employees will be continuously employed immediately prior to and immediately after after the Closing Date and Ashland and Buyer shall comply with all requirements of applicable law to ensure this. Subject to Section 7.5(b)(iv), Buyer shall bear all related costs and shall indemnify and hold Ashland and Asset Selling Corporations harmless from and against any employee claim for statutory severance or severance benefits and other legal obligations to pay. (including employer's levy), any payroll taxes and any compensation payable during a compulsory event). Warning period associated with it, total: “advantages of separation
"), each arising out of or related to the failure of the purchasers or the purchaser companies to employ or continue to employ an Employee, each in accordance with this Agreement and as required
subject to applicable law, both Ashland and the Asset Sales Corporations shall bear all costs associated with any employee's claims for severance benefits resulting from the denial and shall indemnify and hold harmless the Buyer and the Buying Companies. Such employee agrees to accept any offer of employment made by Buyer or a Buyer Company made in accordance with this Agreement and applicable law, or any objection by such employee to an automatic transfer of work to Buyer or a Buyer Company or from the responsibilities relating to the agreements set forth in this agreementAppendix 7.5
(ii) Subject to Section 7.5(b)(iv), Purchaser shall provide or cause the Purchaser Companies to provide substantive severance and other severance benefits to any Transferee whose employment is terminated within eighteen (18) months of on the Termination Date shall be comparable to the severance and other termination benefits provided to such Transferee by Ashland or the applicable Asset Sales Corporation at the time of this Agreement.
(G)Allocation of accounts payable
.(i) Except as expressly provided in this Article VII, Ashland and the Asset Sales Corporations retain responsibility and hold Buyer and its affiliates harmless from any liability, obligation, claim or damage related to employment benefits and employee benefits (including wages, bonuses, profit sharing and other employee compensation and benefits and any "exit obligations" within the meaning of Sections 4203 or 4205 of ERISA) relating to any period prior to the Effective Date, due prior to or after the Closing Date, such obligation, liability, demand or damage related to (x) employees or (y) any person formerly employed by Ashland or any of its companies employed or providing services to Ashland Affiliates who, for any reason, ceased to be employed or employed prior to the Termination Date (the "former employees
") (or a relative or beneficiary of such employee or person). Except as expressly provided in this Article VII, effective as of the Effective Date, Buyer or the Buyer Company assumes sole responsibility and shall indemnify and hold harmless indemnify Ashland and its affiliates from and against any employment-related liability, obligation, claim or damage and for the reimbursement of employee benefits related to the Transferring Employee (or a dependent or beneficiary of a Transferring Employee) related to any period on or after the Effective Date, regardless of whether such liability, obligation, claim or damage is due on or after the Closing Date or is otherwise expressly assumed by Buyer or a purchasing entity pursuant to this Agreement.
(ii) Ashland and Asset Sales Corporations retain all responsibility and liability for all claims for workers' compensation, short-term and long-term disability, drug, prescription drug, dental, vision, life insurance, accidental death and layoff and other welfare claims from former employees and associates who arose prior to the Effective Date and who are covered by the terms of the applicable programs of Ashland and the Asset Selling Corporations or their respective affiliates. With respect to claims submitted by transferring employees and their employees on or after the Effective Date for beneficiaries of employment compensation, short-term and long-term disability, drug treatment, prescription drugs, dentures, vision, life insurance, accidental death and dismemberment and other claims welfare by the buyer or a responsible purchasing company. For these purposes, Buyer or the Buyer Company shall be liable if a claim is deemed to have arisen: (i) in the case of workers' compensation and short-term or long-term disability benefits (including related health benefits) at the time of the injury, the illness or other event that caused the injury is entitled to such benefits; (ii) in the case of medical benefits, prescription drugs, dental or eye care, at the time professional services, equipment or prescription drugs covered by the applicable plan are used; (iii) in in the case of life insurance benefits, in the event of death; and (iv) in the case of accidental death and dismemberment benefits at the time of the accident.
(iii) The obligations, liabilities, demands and damages retained by Ashland and the Asset Sales Corporations pursuant to Section 7.5(g)(i) and (ii) above are referred to herein as “Retained employee liabilities
As of the Effective Date, Purchaser or a purchasing entity must (i) recognize for all purposes (including eligibility, vesting and benefit levels and provisions, but excluding provisions for defined benefit plan benefits (other than any Seller ); Plan adopted by Buyer or a Buyer Company) under any plan, program or arrangement established or maintained by Buyer or a Buyer Company for the benefit of transferring employees, services to Ashland or the Asset Selling Companies and their respective subsidiaries them on the Completion Date, to the extent such benefit was recognized under the applicable Seller Benefit Plan for such transferring employee and (ii) waive any pre-existing medical exemptions, active work requirements or waiting periods under any health and wellness plan provisions of employees established or retained by Buyer or a purchasing entity for the benefit of Transferred Employees, unless the discount, requirement or waiver for pre-existing conditions immediately previously applied to such individual pursuant to the applicable Seller Benefit Plan and (iii ) any supplemental payments, Full credit of any deductible or similar payment previously made or accrued up to the closing date of the plan year in which the closing occurs.
Unless otherwise required by applicable law, from 12:01 p.m. of the Closing Date, the Purchaser or an Acquiring Company shall assume all vacation days and paid leave accrued but not yet taken by the Mobile Employees at the time of the Closing Date, to the extent of the agreed upon Closing Account (meaning that the Purchaser or a Purchasing Company may deduct from the number of vacation days and paid time provided to such employee the number of vacation or paid leave days). which the employee in question has already claimed in the relevant year).
.Within 120 days of the Closing Date, Ashland and Asset Selling Corporations will make all payments to the Transferring Employees of any variable salary, bonus, cash benefits and incentive plans for the period prior to the Closing Date. Post-Closing Date: Transferred Employees shall participate in all variable compensation, bonus, cash benefit and incentive plans created or maintained by Buyer or an entity of Buyer.
(k) In the case of an employee referred to in Section 7.5(e), references to the Completion Date in Sections 7.5(g) through (j) shall apply, unless otherwise required by applicable law or unless expressly provided in this Agreement on the date the employee became a transferred employee.
.If Buyer or a buyer entity maintains or establishes a defined contribution plan that includes an eligible cash payment or deferred arrangement within the meaning of Section 401(k) of the Code ("Buyer's 401(k) Plan
") Purchaser or a Purchase Entity must permit each Transferor Employee to participate in a Seller Benefit Plan that is a defined contribution plan with an eligible cash payment or deferred arrangement as defined in Section 401(k) of the Code ("Vendor 401(k) Plan
") and Buyer or a buyer entity agrees to cause Buyer's 401(k) plan to implement an "immediate rollover" (as defined in Section 401(a)(31)) in accordance with applicable law. ) accept the remainder of your account (including earned income as of the date of transfer and promissory notes evidencing all outstanding credit) to Seller's 401(k) plan, if such transfer to Buyer's 401(k) plan is in accordance with applicable law; the Employees of the Transferor, subject to the reasonable satisfaction of Ashland and the Asset Selling Corporation and the Buyer, that the Seller's 401(k) Plan and the Buyer's 401(k) Plan, respectively, to the extent applicable, are in compliance with all applicable laws and that this plan continues to meet the requirements of a qualified plan under Section 401(a) of the Code and that the trust that is part of this plan is tax-exempt under Section 501(a) of the Code . Upon completion of a direct transfer of a Transferring Employee's Account Balances as described in this Section 7.5(l), Purchaser or a Purchaser Entity and the Purchaser's 401(k) Plan shall be fully responsible for all post-employment benefits related to this transferee and not for Ashland, the Asset Selling Corporations and the seller's 401(k) plan. k) The Plan assumes no responsibility in relation to these services.
Buyer will provide all notices required by WARN and any other similar federal, state or local law or regulation, or cause its affiliates to comply with WARN and any other similar law or regulation, in each case “Factory Closing ” or “ Mass Layoff ” (as defined in the WARNING) or class termination or similar event affecting employees (including as a result of the consummation of the transactions contemplated by this Agreement) occurring after the Effective Date. No Purchaser or any of Affiliates will not take any post-closing action that would result in the termination of an employee's employment prior to the Effective Date and constitutes a "plant closing," "mass layoff," or class termination pursuant to the WARNING or violation of federal, state, or local law or similar regulation or creates liability or penalty for Ashland or an Asset Sales Company for any termination of employment under applicable law.
Ashland and the Asset Sales Corporations must fully comply with all their obligations (regardless of their origin) to inform and consult with and in relation to the Company's employees, whether arising under a union contract or under applicable law. To the extent such notices are given in writing, Ashland and Asset Selling Corporations will provide a copy to Buyer upon notice and will provide Buyer with all written responses to such notices promptly upon receipt. Buyer or Buyer's Affiliates will fully fulfill all obligations (regardless of their origin) to inform and consult with Company employees, whether arising from a union agreement or applicable law. To the extent such communications occur, Buyer and Buyer's Affiliates shall provide Ashland with a written copy at the time such notices are given and shall provide Ashland with any written responses to such notices promptly upon receipt thereof.
.At Closing, Buyer shall comply with all applicable labor, employment and pension laws relating to Mobile Employees and shall cause the Purchasing Companies to recognize all applicable collective bargaining entities representing Mobile Employees and recognized as such immediately prior to the closing.
(PI)Ashland Retirement Plans data is maintained outside the US.
Ashland or the applicable Asset Sales Company shall hold or arrange to hold all assets and liabilities under each Non-U.S. Asset held. Ashland Pension Plan and will make payments to employees with benefits purchased under that plan in accordance with the terms of that plan and applicable law. With respect to all pension plans maintained outside the U.S. Ashland Retirement Plan, effective on the relevant date such employees become Transferred Employees, each Transferred Employee must cease active participation in such retained non-U.S. Employees. The Ashland pension plan, benefits and compensation provided to an employer other than Ashland, the Asset Selling Corporations and their predecessors are not included in this compensation withheld outside the US for any purpose. Ashland Pension Plan, unless required by law.
(E)Transfer Account Out of Ashland USA Retirement Plan
. With respect to any Ashland Retirement Plan outside the United States of America, Purchaser, a purchasing entity or the purchaser's or purchasing entity's related retirement plan assumes all responsibility for any accruals as of the Effective Date and in accordance with applicable law. such transfer of liability, neither Ashland nor any Asset Sales Company shall have further liability for any benefits arising under this Program. The Ashland Retirement Plan will be transferred to the buyer in accordance with applicable law in connection with the transfer of liabilities. these assets will be transferred in accordance with applicable law.
(R)Acquisition of Pension Plans
. Prior to the Closing Date, Ashland or the applicable Asset Sales Corporations shall take all necessary steps to collect any accounts, benefits or accrued payments to which any Transferring Employee may be entitled under any Supplier Benefit Plans, which either the retirement plans that do not qualify, fully vest agreements and any Seller 401(k) plans to the extent not already vested.
(SMALL)No third party beneficiary
. The provisions of this Section 7.5 are for the sole benefit of the parties hereto, and nothing in this Section 7.5, express or implied, shall give any employee or legal representative or beneficiary any right or remedy, including any right of employment or continuation of employment for any period of time or remuneration or services of any kind under this Agreement. Nothing in this Section 7.5, express or implied, shall be deemed to (i) modify any plan providing benefits to any Employee or (ii) be construed to prevent Buyer from modifying any benefit plan that Buyer may establish or maintain , to terminate or change to any extent or in any respect.
(a) Buyer shall use its best efforts and cause Sponsor to undertake or cause Sponsor to do or cause Sponsor to do all that is necessary, reasonable or appropriate under applicable law and to do so All instruments and execute and deliver or arrange for the execution and delivery of any documents necessary, reasonable or expedient for the settlement and acquisition of the Financing as soon as practicable in accordance with the Terms (including the “Flexible Purchase” provisions) and the terms of the matter described in the Commitment Letters and the Fee Letter, including: in the case of the Leverage Financing, (i) the negotiation and execution of definitive agreements (the “
Conditional debt financing (including "Flexible Purchase" provisions) and subject only to the terms contained in the Debt Commitment Letter and Letter of Supply (without regard to any adverse impact on the buyer's corporate defaults or equivalent credit ratings (either by (Moody's). , Standard. & Poor's or other recognized credit rating agencies)) or on other terms agreed to by the Purchaser and the Lenders, provided that the terms of the Definitive Agreements do not (w) reduce the aggregate amount of of the Debt Financing in less than $600,000,000, (x) do not include additional or modified terms or contingencies to the Debt Financing other than those contained in the Debt Commitment Letter and (y) are not reasonably likely to affect or delay the completion or completion date of the debt financing, (ii) timely satisfy (or obtain a waiver of) all terms and conditions of the Debt Commitment Letter and Definitive Agreements applicable to Buyer or its affiliates to obtain financing; , (iii) fulfill its obligations under each material aspect of the Commitment Letter (or obtain a waiver of such obligation), and (iv) complete the Debt Financing (including the “Market Flexibility” provisions set forth in the Commitment Letter Agreement and the Letter Rate) at the time of completion, including using best efforts to induce lenders to finance the Debt Financing. The buyer must arrange for the sponsor's fund to fund the equity financing at closing in accordance with the terms of the Equity Commitment Letter.
(b) Buyer shall notify Ashland immediately upon becoming aware of any material breach of any covenant or definitive agreement (if any definitive agreement is signed prior to closing) by any party to such covenant or definitive agreement or any termination of any letter, letter charge or Final Agreement (if a Final Agreement is signed prior to completion). Buyer will keep Ashland informed in a timely manner and in reasonable detail of the status of its efforts to arrange the financing and of any significant developments related to the financing and will provide Ashland with copies of the definitive agreements and any other agreements related to the financing application. (is offeredthat Buyer may reduce the amount of any Fee, including any “Flexible Purchase” provisions, in a Fee Letter; In addition, Buyer shall not agree to, permit or waive any amendment, modification or other modification of its rights, any affidavit, charge statement or any definitive agreement without Ashland's prior written consent, except that Buyer may amend, modify or amend the Debt Commitment Statement, Fee Statement or Definitive Agreement if such amendment, amendment or modification (i) does not result in a reduction in the aggregate amount of the Debt Financing, (ii) does not contain additional or amended terms or other contingent liabilities on the Debt Financing compared to those contained in the Debt Commitment Letter and (iii) is not reasonably likely to affect the financing of the Debt Financing or delay the completion of or the date on which the Debt Financing will occur .is offered,Howeverthat Buyer shall notify Ashland in writing of any change, amendment or other modification or waiver of its rights under any Commitment or Definitive Agreement until such change, amendment, amendment or waiver is agreed upon, in order that Buyer shall refrain from any action; direct or indirect, which could reasonably result in the breach of any term of any Commitment or Definitive Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, after the date of this Agreement but prior to its closing, at Buyer's discretion, one or more Commitments may be replaced by Substitute Commitments (except for amounts to be replaced by Buyer's cash in hand) from Alternative Sources (such as part of the Alternative Sources that says "alternative financing
") on terms and conditions that will enable Buyer to consummate the contemplated transactions and which, in the aggregate, will be no less favorable to Buyer and Ashland than
those contained in the Terms of Engagement and Fee Letter;is offeredthat this Alternative Financing is not (i) subject to additional or materially modified terms or other financing contingencies beyond those contained in the Commitments or (ii) may adversely affect or delay the completion or date of the financing; will be done funding is received. Buyer shall provide Ashland with complete and accurate copies of any amendments, additions, other modifications or agreements pursuant to which alternative financing will be made available to Buyer. In the event that all or a portion of the debt financing is not available in accordance with the terms and conditions set forth in the Commitment Letter, Buyer shall promptly notify Ashland and Buyer shall use reasonable efforts to promptly obtain the unavailable amount. in the form of alternative financing.
(d) Prior to the Closing, Ashland shall use its best efforts to provide reasonable cooperation required by Buyer in connection with the Debt Financing Agreement and shall cause its affiliates and agents to use all reasonable efforts to provide such shares in connection with the financing of the debt agreement for transactions substantially similar to the proposed transactions (is offeredthat such requested cooperation will not (x) unreasonably interfere with the day-to-day operations of Ashland or any of its subsidiaries, (y) result in a breach of any representation, warranty, representation or other provision of this Agreement, or (z) any closing condition; (see clause 4) is not met), including using all reasonable efforts to (i) provide the Funding Sources with financial and other relevant information about Ashland and its subsidiaries that the Purchaser will obtain by providing such information to the Funding Sources; referred to in paragraphs 5 and 6 of Annex D of the Engagement Letter (all such information contains “Essential information
) (is offeredthat Ashland may provide Buyer with one or more written notices indicating when it expects delivery of the required information to be complete (each “delivery note
') and unless Buyer believes in good faith that Ashland has not completed delivery of the required information and has provided Ashland with written notice to that effect within three business days of delivery of the final delivery notice (stating the required information) . not delivered), the date specified in Ashland's most recent delivery notice shall be deemed the date of delivery of the Required Information) and any supplements to the Required Information reasonably requested by Buyer during the Marketing Period. (ii) provide information (including records, journal entries and other data) in a form and for the historical period that allows the availability of collateral to be accurately calculated during routine checks and investigations of creditor-funded exposures and inventories of secured assets; (iii) participate in a reasonable number of briefings, preliminary meetings, road shows (where participation in road shows is limited to key members of the Company's management), appraisal company presentations and due diligence and appraisal company meetings. (iv) provide the Buyer with relevant transactional information as is customary in connection with the Debt Financing and any necessary security for onward transmission to the Financing Sources as expeditiously as possible, including a monthly release as soon as possible after the Financing Request appropriate and operational information regarding the Company as reasonably requested by Buyer and similar in nature to monthly financial and operational information previously provided to Buyer; (v) assist Buyer and the Financing Sources in preparing (A) a standard offering document for any Debt Financing; and (B) material for credit rating agency presentations; (vi) use reasonable efforts to obtain current reports, property liens, property insurance and such UCC;
Bankruptcy, Litigation and Similar Lien Pursuits (collectively “Poll title and information
") reasonably required by Buyer and consistent with the requirements of Buyer or its creditors; (vii) take all corporate actions, subject to the Completion of the Closing, as reasonably required by Buyer to enable the consummation of the Financing; (viii) cause the relevant authorized representatives of Ashland to execute and deliver any Pledge and Security Documents, Final Finance Documents or other certificates or documents reasonably required by the Purchaser or the pledge of any Security (as defined in the Letter of Credit) in any other mode of facilitation ) for delivery at the closing of the financing and at the closing (unless otherwise specified); (ix) cause the relevant authorized representatives of Ashland to sign and deliver any loan or other final financing document; on terms satisfactory to the Purchaser at the time of closing; (x) at the request of the Purchaser, provide authorizations to the Financing Sources authorizing the disclosure of information to potential creditors; (xi) to the extent customary and reasonable, reasonably cooperate in the due diligence of the Financing Sources; · (xii) obtain letters of comfort and legal opinions from an accountant as reasonably required by Buyer and customary for financing similar to the financing. (xiii) at least 5 (five) days prior to closing (is offeredthat Buyer's request for such information will be received by Ashland at least ten (10) business days prior to Closing), provide all documents and other information about Ashland and any of its affiliates that Buyer reasonably requests in writing. applicable Know Your Customer and anti-money laundering rules and regulations, including but not limited to the USA PATRIOT ACT, and (xiii) take all steps reasonably necessary to (A) enable (subject to confidentiality obligations established for the avoidance of doubt). here) the funding sources for evaluating Ashland's inventory, working capital, cash management and accounting systems, related policies and procedures for establishing security arrangements (including completing the trade finance review and inventory valuation that provided for in the commitment for timely debt financing) . context described therein;is offeredthat (x) the information and documents provided by Ashland and the Asset Sales Corporations to representatives and creditors under the Debt Commitment Letter and its representatives will be subject to customary confidentiality agreements substantially similar to the terms of the Non-Disclosure Agreement, including of any written agreements Buyer Notice to Ashland of Disclosure, (y) neither Ashland nor any of its Affiliates shall be required to pay any liabilities or other fees or incur any other obligation or liability in connection with the Debt Financing or perform any actions required by applicable law would be prohibited or would cause a breach or violation of a material contract or otherwise breach it and (z) any obligation of Ashland or any of its affiliates under any certificate, instrument or document delivered hereunder Section 7.6(d) (other than the Letter of Authorization referred to above) is effective through the Effective Date. Buyer shall, upon Ashland's request, promptly reimburse Ashland for all costs and expenses (including attorneys' fees) incurred by Ashland or any of its affiliates (other than any costs and expenses incurred prior to the date of of this Agreement in connection with the acquisition of title and resulting research information) in connection with the cooperation of Ashland and its affiliates contemplated by this Section 7.6 (d) Ashland and its affiliates and their respective directors, officers, employees and agents they are jointly and severally liable for all losses, damages, claims, costs or expenses incurred or incurred in connection with the Debt Financing Agreement and any information used in connection therewith. All information provided by Ashland in connection with seeking financing is provided in good faith.
(e) If (i) any portion of the Debt Financing structured in the form of Privately Offered Securities is not consummated until all of the conditions to closing in Section 4 have been satisfied (other than the condition set forth in Section 4.1(d) ) , upon Buyer's receipt ) and conditions other than those which, by their nature, must be satisfied at closing) must be satisfied or (to the extent permitted by applicable law) waived and the negotiation period has ended and (ii) the bridge facilities provided because the debt is subject to a letter of commitment, the buyer must borrow under these bridge facilities and arrange for the proceeds of the loan to replace this privately offered note financing until the date the terms in section 4 (other than those set forth in section 4.1(d) and conditions other than those which, by their nature, must be satisfied at closing must be satisfied or (or to the extent permitted by applicable law) waived and the Trading Period has ended.
(f) Buyer acknowledges and agrees that its obligation to complete the proposed Transactions in accordance with and on the terms set forth herein is not contingent upon the availability or completion of the Financing or its receipt of proceeds.
For purposes of this Section 7.6 and Section 11.17, (i) the terms “debt financing
", "financial balance
shall also include any alternative financing, (ii) the terms “debt acceptance letter
", "Capital Commitment Letter
", "commitment statement
“shall also include any commitment letter (or similar agreement) or fee letter (if any) relating to such alternative financing and any commitment letter (or similar agreement) or fee letter (if any) as amended from time to time. amended or modified in accordance with this Section 7.6. and (iii) the term “Lender” shall also include any Alternative Financial Lender.
Section 7.7.non-competition; no advertising.
(a) The parties acknowledge and agree that Ashland and its affiliates provide services to the specialty chemicals and thermoplastics industries through various distribution channels and that Ashland and its market asset companies contract, package and distribute in connection with such services self-made chemicals, mixed chemicals, third-party chemicals and third-party chemicals.
(b) Subject to the provisions of this Section 7.7(b), Ashland agrees that, for a period of three (3) years from the Closing Date, neither Ashland nor any Affiliate controlled by Ashland shall establish a new business entity that or indirectly carries on any business in any geographic area where, on the Closing Date, it carries on part of the business, the primary objective of which is to establish and maintain a logistics network with the primary objective of (i) marketing, packaging or distribution of chemical products third parties, (ii) formulation, marketing, packaging or distribution of third party thermoplastics and/or (iii) collection, recovery, recycling and disposal of hazardous and non-hazardous waste (each "competitive activity
”);however it is plannedthat Ashland or any of its subsidiaries shall not be deemed to be in violation of this subsection;
(i) invests in any person that invests, manages or performs any competitive activity, provided that the investment by Ashland or its affiliates is less than 15% of the outstanding equity capital in such person and Ashland does not control or Does this person or activity not direct competitively?
(ii) acquire (x) any of the listed companies;Appendix 7.7
or (y) any competitive activity (or any third party engaged in such competitive activity) through a merger or purchase of stock or assets of a third party, provided that the majority of such third party's annual operating income is attributable to such competitive activity in the that third party's most recent financial year before the acquisition does not exceed 15% of the total annual operating income during that period for any business or enterprise acquired by that third party.however it is plannedthat, subject to this clause (y), in the event of any acquisition where the aggregate annual operating income related to the Competitive Activity exceeds 15% of such aggregate annual operating income, Ashland will attempt to dispose of such excess portion of the Competitive Activity activity for a price and acquiring them on terms that Ashland deems commercially reasonable.
(iii) hold securities as part of an employee benefit plan.
(iv) engage in competitive activities for the benefit of Buyer or any of its affiliates, including engaging in any competitive activities required or contemplated by this Agreement or any Addendum;
(c) For the avoidance of doubt, and notwithstanding anything herein to the contrary, it is agreed between the parties that Ashland or any of the Asset Sales Corporations may continue to engage in any business (or any other business) carried on since the Closing Date , including the right to market, package or distribute automobile and truck aftermarket lubricants, chemicals, cosmetics and antifreezes; Products designed primarily to alter the properties of water systems. Specialty chemicals and functional, process and water treatment chemistry for the paper, pulp, chemical, commercial and institutional, food and beverage, mining and municipal industries; and specialty chemicals, as well as customs services for construction, transportation, smelting metals, packaging and processing and marine markets.
(d) Notwithstanding anything to the contrary, the foregoing Agreement shall not apply to any person acquiring an interest in all or part of the stock or assets of Ashland or any of its Subsidiaries, whether before or prior to such acquisition or otherwise; The individual is already engaged in a competitive activity.
(e) For the avoidance of doubt and notwithstanding the contrary herein, the parties agree that the annual operating income of an Ashland business unit from the marketing, packaging or distribution of (i) Third Party Chemicals shall not exceed 20% of its annual operating income or (ii) third-party thermoplastics of an Ashland business unit does not exceed 15% of its annual operating revenue, such Ashland business unit is considered a non-competitive activity.
(f) Neither Ashland nor its Affiliates may solicit employment (whether as an employee, consultant or temporary worker) from any Transferee employed by Buyer.however it is plannedthat, in any event, this Section 7.7(e) shall not apply if (i) such Transferee is terminated by Buyer or one of its Affiliates, (ii) such Transferee contacts Ashland or one of its Affiliates; in response hereto through a public employment announcement or other method not specifically directed to transferred Employees, or (iii) Ashland or any of its Affiliates is required by applicable law, collective bargaining agreement or works council agreement to hire these transferred Employees.
(g) Except as otherwise provided in Section 10 of the Transition Services Agreement, at and after the Closing for a period of two (2) years after the Closing, at and after the Closing for a period of two (2) years after the Closing at the Closing; neither Buyer nor Buyer's companies may solicit employment (whether as an employee, consultant or temporary worker) of any employee of Ashland or any of its Affiliates, whether (i) at the Closing, is located at Ashland or is employed by its Affiliates; and Who is not a Contractor (the “Employees are not transferred
') or (ii) have been employed by Ashland or any of its Affiliates after the Closing Date (the “post-contract arrangements
and together with non-transferred employees,Ashland workers after closing
”);however it is plannedthat, in any event, this Section 7.7(f) shall not apply if (i) such Ashland Employee is terminated by Ashland or one of its Affiliates after the Agreement, or (ii) such Ashland Employee is terminated after the contract by Buyer contact or any of the Buyer Companies in response to a public job posting or otherwise not specifically directed to employees after Ashland's employment.
(h) For purposes of this Section 7.7, the following terms have the meanings set forth below:
"means chemical products resulting from the mixing or other processing of chemicals manufactured by third parties with or without chemicals produced in-house.
“means the Products referred to in Sections (i) and (ii) of the Business Definition in Section 1.1.
“Earnings before interest, income tax and extraordinary items are calculated and reported in accordance with GAAP consistently applied by Ashland.
" means chemical products manufactured entirely directly by Ashland and its subsidiaries or by contracted third parties using Ashland technology.
“means the Products referred to in clause (iii) of the Business Definition in Section 1.1.
«Third Party Chemicals
"means chemical products manufactured or processed entirely by third parties
«No third party chemicals
“means non-chemical products manufactured or processed entirely by third parties and used in connection with the distribution of household chemicals and mixed chemicals.
"" means thermoplastics manufactured, assembled or processed entirely by third parties.
Section 7.8.Legal Aid.
Buyer and any affiliate of Buyer that owns, leases or uses or has owned, leased or used any transferred property, has or is responsible for any liability assumed or otherwise participates in or is involved in the operation of the qualified business distributor Chemicals of Guerra Buyer and Ashland, the Asset Selling Corporations and each of their affiliates, on the other hand, will cooperate in the defense or settlement of any liability or proceeding related to the company for which they are liable under of this Agreement, providing the other party and such other party's designee and other persons with reasonable access to employees, records, documents, data, equipment, facilities, products, parts, prototypes and other information relating to the Company and its products, as requested by the other party, provided that it is maintained or owned or controlled by the requested party. The requesting party shall reimburse the other party for reasonable expenses paid to a third party to fulfill its obligations under this Section 7.8.
Section 7.9.Other Warranties.
(a) From the Closing Date and from time to time, at the request of the other party, Buyer and any affiliate of Buyer that owns, leases or uses or owns, leases or uses any property transferred shall have or have liability for any liability assumed or otherwise involved in the operation of Buyer's specialty chemical distribution business and Ashland shall cause, without further consideration, that the relevant asset sales companies and other affiliates sign and deliver such means of conveyance, transfer, assignment and acquisition, except for the implementing agreements, and to take any other action reasonably necessary to complete the Proposed Transactions or to consummate the Transactions contemplated by the Amendments.
(b) If any Transferred Property is destroyed by fire or other casualty occurring after the date of this Agreement and prior to the Closing, the parties shall nevertheless complete the Transactions pursuant to this Agreement without Ashland or others being liable or liable; Asset Seller Corporation for such accident. Ashland shall cause or cause the relevant Asset Sales Company to assign and transfer on the Closing Date (i) without any representation, warranty or recourse to the Purchaser or the relevant purchasing company and the purchaser or the relevant purchasing company shall be entitled to the net amount of proceeds of any Premium or other proceeds of any relevant insurance policy which may have been received by Ashland or the relevant Asset Sales Corporation as a result of losses less the reasonable costs incurred by Ashland or the relevant Asset Sales Corporation in obtaining such award or of such product and with respect to the actual repair or restoration of the transferred asset, or (ii) if no prize or other product has been collected, delivery to Buyer or, as the case may be, Buyer Corporation, assignment of Ashland or the Asset Seller Corporation as the case may be, bonuses or other proceeds that may be paid to Ashland or the relevant Asset Seller Corporation as a result of such accident, without any representation, warranty or remedy.
Section 7.10.Refunds and transfers.
(a) Ashland and Purchaser shall cooperate to reconcile the settlement of the Incurred Liabilities and Retained Liabilities relating to periods before and after the Closing Date. These costs will be shared between Ashland and Buyer based on the number of days the party has held the Transferred Assets during the relevant period. Ashland shall promptly reimburse Buyer for expenses paid by Buyer with respect to the period prior to the Effective Period and Buyer shall promptly reimburse Ashland for expenses paid by Ashland with respect to the period after the Effective Period.
(b) To the extent that Ashland, an Asset Sales Company or any of its Affiliates, on the one hand, and Buyer, a Buyer Company or any of its Affiliates, on the other hand, (i) receive any payment in which or the other party is entitled (including with respect to any assigned claims), Buyer and Ashland agree to promptly transfer the funds to Ashland's and Buyer's designated bank accounts, respectively, and (ii) make payment to a third party on behalf of of the other party (including in relation to shared liabilities) Buyer and Ashland will promptly indemnify Ashland or Buyer, as the case may be, by depositing an appropriate amount into the bank account designated by the indemnified party.
Section 7.11.Substitution of credit support obligations
(a) Buyer acknowledges that Ashland and certain of its affiliates and third parties have provided credit support to the Company or the Transferred Assets (i), other than withheld restoration obligations, in accordance with the Credit Support Obligations set forth belowAnhang 7.11(a)-i
and that Ashland may modify the credit support obligations set forth belowAnhang 7.11(a)-i
from time to time prior to the closing to include any additional credit support commitments entered into in the ordinary course of business and consistent with past practice and (ii) in connection with recovery obligations maintained pursuant to the credit support commitments established hereunder documentAnhang 7.11(a)-ii
and that Ashland may modify the credit support obligations set forth belowAnhang 7.11(a)-ii
from time to time prior to Closing to include (or notify Purchaser thereof after Closing) any additional credit support commitments entered into in the ordinary course of business or in connection with Ashland's indemnification obligations pursuant to Section 9.1(c); of this document. and consistent with past practice.
(b) In connection with the credit support obligations set forth hereinAnhang 7.11(a)-i
Buyer agrees to provide, on the Closing Date or, if later, upon acceptance by Buyer or Buyer's entity of the underlying Contract, any substitute guarantees, letters of credit, guarantees or other representations of payment, in reasonable form and substance and satisfactory to the relevant banks or other counterparties of Ashland, and the Purchaser and Ashland will cooperate to obtain the necessary release in form and substance reasonable to the Purchaser and Ashland with respect to any credit support obligation.
(c) In connection with any credit support obligation set forth hereinAnhang 7.11(a)-ii
or notified to the Buyer after the Contract is entered into, Ashland agrees to hold such guarantees, letters of credit, guarantees or other statements of payment, in any form or wording, reasonable to the relevant bank or other counterparty of Ashland's outstanding obligation to indemnify the Buyer for termination of payment The retained remedy obligation related to Section 9.1(c) shall terminate in accordance with Sections 9.5(c)(iv), 9.6(c)(i), 9.6(d) or upon Ashland's no longer being available Committed A reservation is an ongoing credit guarantee obligation. Within one hundred eighty (180) days after the termination of Ashland's indemnification obligations under Section 9.6(c)(i) or 9.6(d), Buyer agrees to provide any substitute security, letter of credit, bond or other representation of payment that required by Ashland and the applicable banks or other counterparties are reasonably satisfactory in form and substance and Buyer and Ashland will cooperate to obtain the necessary release with respect to any continuing credit support that is reasonably satisfactory in form and substance to Buyer and Ashland's liability.
(d) If, for any reason, Buyer fails to obtain a full and unconditional release from Ashland and its affiliates of any credit support obligation (i) set forth above;Anhang 7.11(a)-i
until the Expiration Date or (ii) as set forth inAnhang 7.11(a)-ii
or notified to Buyer after Closing as provided in Section 7.11(c) (each such Credit Support Obligation, until such Credit Support Obligation is released pursuant to Section 7.11(b) or (c) ), a “Obligation of Continued Credit Support
(i) Buyer shall continue to use all reasonable efforts to obtain a full and unconditional release from Ashland and its Affiliates of any continuing credit support obligation until such release occurs. AND
(ii) Buyer shall indemnify Ashland and its Affiliates against any demand, revocation or waiver of any continuing credit support obligation or any money or other security posted by Ashland or its Affiliates in connection with or in lieu of such continuing credit obligation; support. and Carrying cost of any cash collateral not replaced by the Buyer, the fronting fee, and any other third-party costs arising from any current credit support obligation.
Section 7.12.Access, information and documents.
(a) From the date of this Agreement until Closing, upon reasonable notice by Buyer of at least five (5) business days, Ashland shall cause Asset Sales Corporations, to the extent permitted by law, to permit Buyer and its authorized representatives during regular business hours, reasonable access to property, employees, facilities, contracts, books and records and other documents and data relating exclusively to the Company (other than Excluded Assets), including access that is necessary to complete the Debt Financing.however it is plannedthat such access (or related activities or investigations) will not unreasonably interfere with the normal operation of the respective businesses of Ashland or the Asset Sales Corporations, including the Company;provided, stillthat all information received by Buyer or its agents and provided by or on behalf of Ashland and the Asset Sales Corporations in connection with this Agreement and the Proposed Transactions shall be retained byBuyer and its affiliates and agents are considered Confidential Information under the terms of the Non-Disclosure Agreement.
(b) Nothing in paragraph (a) shall obligate Ashland or any Asset Sales Corporation to provide the Buyer or its agents with access to any document or other communication which Ashland believes in good faith to be subject to a contractual obligation of confidentiality or which may subject to a contractual obligation of confidentiality, be covered by an attorney-client work product or similar privilege, or permit Buyer or its agents to conduct environmental testing, including soil, water, air or other samples or tests, on or in connection with with permitted transferred property.
(c) From the date of this Agreement until its execution, neither Buyer nor any of its affiliates may communicate without Ashland's prior written consent. Ashland may, in its sole discretion, withhold such consent for any or no reason to any of the Company's suppliers or employees (except as provided in paragraph (a)) or customers in connection with or in connection with any subject matter of this Agreement.
(d) From the date of this Agreement until the Closing, Ashland shall provide Buyer with copies of any additions or modifications to real estate leases and shall cause Real Estate Sales Companies to do so.
Section 7.13.business ways.
From the date of this Agreement until completion, except (a) as provided or permitted in this Agreement (including Schedule 7.13), (b) in connection with necessary repairs resulting from damage or accident or other actions taken as answer to this. as a result of a business emergency or other unforeseeable operational issue, (c) as required by law, regulation or governmental approval or existing contract, or (d) if Buyer consents in writing, such consent is not unreasonably withheld, subject to terms or may be delayed, Ashland will:
(i) conduct its business in the ordinary and usual course of day-to-day business, which is of a nature, scale and scope substantially consistent with past practice and to the extent compatible, Ashland will use commercially reasonable efforts to maintain its activities. the business organization remains intact and maintains existing relationships and goodwill with customers, suppliers, creditors, employees, owners and agents;
(ii) not assume, create or incur encumbrances in respect of transferred assets other than as permitted rights;
(iii) acquire or dispose of any material transmitted outside of usual and customary channels, except in the past practice;
(iv) not change the terms of any lease agreement relating to the leased property listed inAnhang 5.8(b)(i)
in a manner that has a material adverse effect on the Company; AND
(v) enter into any collective bargaining agreement or other material agreement with any union or other relevant employee survey or similar material agreement with respect to employees;
(vi) except (A) in the ordinary course of business consistent with past practice, (B) to the extent involving a substantial number of employees of Ashland and Asset Sales Corporations, excluding employees, (C) to enter into new Agreements or agreements or increases in benefits or payments, each for
newly hired or promoted employees whose merit is consistent with the past practice of providing compensation and benefits to newly hired or promoted employees in similar positions, (D) as required by the terms of a Seller Benefit Plan or other written agreement in effect on the Date of this Agreement , (E) for any acts by which Ashland and the Asset Sales Corporations are solely required, or (F) as set forth in Exhibit 7.13, not to enter into materially new compensation schemes, agreements or arrangements for the benefit of , or in which a employee (including a vendor benefit plan) or significantly increases an employee's pay or benefits. AND
(vii) you do not agree to take any of the above actions;
Section 7.14.No use of Ashland names.
(a) On and after the Closing Date, neither Purchaser nor any Purchaser Company nor any of their respective Affiliates may use the “Ashland”, “Ash”, “ADC”, “Ashdist” Data except as provided expressly in this section 7.14 is. GP" or "GPezorder" names, trademarks, domain names and logos (the "reserved names
") or similar names (or derivatives thereof in any language) alone or together with any other word or logo, slogan, symbol or design in any form, variation or character in connection with any business that Buyer, Buyer, company or their respective subsidiaries of On and after the Closing Date, neither Ashland, an Asset Sales Corporation, nor any of its respective subsidiaries may use the name "Ashland Distribution" in connection with any business of Ashland, the Asset Sales Corporations or the their respective subsidiaries conduct further.
Within one hundred eighty (180) days of the conclusion of the Contract, Buyer and its affiliates must change print advertising, product identity and any other information or other materials, including any internet or other electronic means of communication, change signage and stationery and otherwise use set reserved names.however it is plannedthat during such one hundred eighty (180) day period, Buyer may continue to distribute Product literature using Reserved Names and may distribute Products labeled or packaged using Reserved Names; In no event may Buyer or any of its affiliates use such Reserved Names after the Agreement in any manner or for any purpose other than Ashland's use of such Reserved Names prior to the Agreement. With respect to Inventory, Buyer may continue to sell it regardless of whether its labeling or packaging contains one or more of the withheld names for a reasonable period after Closing (not to exceed one hundred eighty (180) days). .
Section 7.15. No store.
Until this Agreement is entered into or this Agreement is effectively terminated pursuant to Section 8.1, whichever occurs first, Ashland is not authorized to authorize any of the Ashland Sales Companies and will use reasonable efforts to protect itself and the sales of the Ashland Companies The respective subsidiaries, directors, officers, directors, members, associates, employees, investment bankers, financial advisors, representatives or agents of the Companies Sales Companies, do not discuss, directly or indirectly, (a) not discuss or transact with any person (other than arranging for that person to report existence); of this Section 7.15) or knowingly grants, initiates, authorizes, proposes, proposes or enters into any transaction involving the purchase, consolidation, business combination, merger or other acquisition of all or substantially all of the Company, other than the contemplated Transactions, Agreement (The "purchase transaction
(b) knowingly facilitates or knowingly facilitates or solicits or initiates discussions, negotiations or makes proposals or offers in connection with any procurement transaction; (c) provides or causes to be provided business information to any person; company, corporate property or assets in connection with any procurement transaction, or (d) otherwise knowingly cooperates with, facilitates or encourages any attempt or effort by any other person in any acquisition transaction.
Section 7.16.purchasing company
Buyer shall use its best efforts to promptly form a legal entity to act as Buyer Corporation in each of the jurisdictions listed inAppendix 7.16
(pass away"foreign jurisdictions
') and obtain all relevant key approvals and records.
Section 8.1.termination events.
Notwithstanding anything to the contrary in this Agreement, this Agreement may be terminated and the proposed Transactions canceled at any time prior to completion:
(a) with the mutual written consent of Ashland and Buyer;
(b) by Ashland if (i) Buyer has breached or failed to comply with any of the representations, warranties, representations or other covenants contained in this Agreement, the breach or breach of which (x) would result in failure of any term under Section 4.1 or 4.3 and (y) (A) cannot be cured by the Expiration Date or (B) if cured by the Expiration Date, must not have been cured within thirty (30) days of receiving of Ashland's notice of such breach or default, or any shorter period of time remaining between the date of such written notice and the Expiration Date, or (ii) if all of the conditions set forth in Sections 4.1 and 4.2 are satisfied or waived (except as defined in Section 4.1(d) set forth the condition and other than those conditions which by their nature must be satisfied by actions taken at closing) and Buyer does not complete the Transactions contemplated by this Agreement within five Business Days from the date on which the closing of the agreement under clause 3.1 would have occurred and the Company was ready and willing to complete the Transaction during that period (meaning that during that period of five Business Days from the date at which time the Closing should have occurred pursuant to clause 3.1, Buyer shall not be entitled to terminate this Agreement pursuant to Section 8.1(e)(ii);
(c) by Buyer if (i) Ashland has breached or failed to perform any of the representations, warranties, covenants or other covenants contained in this Agreement, the breach or breach of which (x) would result in the failure of any condition pursuant to Section 4.1 or 4.2 and (y) (A) cannot be cured by the Expiration Date or (B) if cured by the Expiration Date, must not have been cured within thirty (30) days of receiving of Buyer's written notice of such breach or default, or any shorter period remaining between the date of such written notice and the Expiration Date.
(d) by Buyer in the cases set forth in Section 7.3(b). the
(e) by Ashland or Buyer if (i) any of the conditions set forth in Section 4.1 can no longer be satisfied because (x) the final and conclusive entry of an order preventing or directing the proposed transactions or (y) the occurrence final and undisputed legal restraint preventing the proposed transactions or (ii) closing has not occurred on or before (other than the failure of a party seeking to terminate this Agreement to fully perform its obligations under this Agreement);
30 April 2011 or such later date as the parties may agree (such date being "final condition
Section 8.2.Termination result.
(a) If this Agreement is terminated pursuant to Section 8.1, all obligations of the parties under this Agreement shall terminate, except that the Sponsor Guarantee shall survive its terms and the obligations of Section 7.6(d) as to regarding confidentiality and indemnification, 7.12(a) regarding privacy, 8.2, 11.7, 11.8, 11.9, 11.10 and 11.17 survive;however it is plannedthat if this Agreement is terminated by Buyer pursuant to Section 8.1(c), Buyer's right to any legal and equitable relief shall survive such termination and nothing in this Section 8.2 shall constitute a release of Ashland from any liability shall apply to breach of the terms, covenants and other provisions of this Agreement or interference with Buyer's right to compel Ashland to perform any of its specific obligations under this Agreement.provided, stillthat if this Agreement is terminated by Ashland pursuant to Section 8.1(b), in addition to Ashland's right to request specific service pursuant to Section 11.17 and Ashland's right to enforce the Sponsor Guarantee, the sole and exclusive remedy instrument of Ashland against Purchaser or Sponsor or any former, current or potential shareholder, controlled person, director, officer, employee, general or limited partner, member, director, subsidiary, agent or representative of any of the foregoing or any source of funding for any damages arising from them in the event of a breach of any representation, warranty, representation or agreement prior to the consummation or failure to consummate the contemplated Transactions are governed by your rights under Sections 8.2(b) and 8.2(c).
(b) If this Agreement is terminated pursuant to Section 8.1(b), Buyer shall promptly, but no later than five business days after the date of termination, make payment to Ashland or arrange for payment of readily available funds by wire transfer in transfer in accordance with Ashland's written instructions to the Purchaser (assuming that in no event shall the Purchaser be required to pay the Purchaser's Fee more than once) an amount of US$120 million (the "buyer's fee
(c) The parties acknowledge that the agreements contained in Section 8.2 are an integral part of the proposed Transactions and that without such agreements the parties will not enter into this Agreement. Accordingly, if Buyer fails to timely pay the amount due under Section 8.2(b) and Ashland, in order to obtain such payment, brings an action resulting in a judgment against Buyer for the amount specified in Section 8.2(b). or part thereof, Buyer shall pay Ashland its costs and expenses (including attorneys' fees) in connection with such action, together with interest on such amount or part thereof at the rate in effect on the date of payment, due until the payment date. .
(d) Notwithstanding anything to the contrary in this Agreement, Ashland's receipt and acceptance of any Buyer Fee pursuant to Section 8.2(b) (plus if any Buyer Fee is not timely paid) shall be the amounts described in Section 8.2( c) ) and Ashland's receipt and acceptance of Buyer's indemnification and indemnification obligations under Section 7.6, subject to Ashland's right to request specific service under Section 11.17 and Ashland's rights against the Warranty of Sponsor, shall be Ashland's sole and exclusive remedy against Purchaser's past, present or potential shareholders, control persons, directors, officers, employees, general partners, members, directors, subsidiaries, agents or agents or any sources of financing for any damages arising out of any breach of any representations, warranties, representations or covenants in this Agreement or the failure to consummate the contemplated transactions and upon full payment of such sums, neither Buyer nor any of its sums shall Former, present or nominee shareholders, control persons, directors, officers, employees, general partners or limited partners, any member, manager, subsidiary, agent or transferee shall have any other liability or obligation related to or arising out of this Agreement or the proposed Transactions.
(e) For the avoidance of doubt, in no event shall Ashland or any of its affiliates be entitled to monetary damages (for the avoidance of doubt: For the avoidance of doubt: Amounts due to Ashland as a result of Buyer's indemnification and indemnification obligations Section 7.6) by any of the Purchasers (except to the extent provided in Sections 8.2(b) and 8.2(c), the Sponsor Fund or by any past, current or potential shareholder, control person, director, officer, employee, general or other limited partner, any member, manager, affiliate, agent or representative of any of the foregoing or any source of financing for any breach of any representation, warranty, representation or agreement of Buyer occurring prior to the Closing Date.
Section 9.1.Ashland compensation.
Subject to the limitations set forth in this Agreement, from and after the Closing Date, Ashland will provide to Buyer and its affiliates and each of their respective officers, directors, employees, agents, consultants or representatives (the “Buyer's Indemnity
'), from and against any claim, action, cause of action, judgment, award, liability, loss, costs, expenses (including reasonable attorneys' fees and expenses), penalties or damages (each "Loss
", together with"losses
") arise or exist, if they arise or arise from:
(a) any breach of any covenant or agreement by Ashland or any of its Affiliates to be performed on or before the Expiration Date as may be contained in this Agreement or in any implementing or transitional agreement provided by Ashland; or any of its Affiliates under this Agreement (including the Certificate provided pursuant to Section 4.2(b)) or any breach or inaccuracy of any warranty or representation of Ashland contained in this Agreement.is offeredthat the terms "had a material adverse effect" and "had a material adverse effect" as used in Article 5, representations and warranties should be replaced by the terms "is material to the entity" and "to the entity, as all were substantial". the
(b) any breach of any covenant or agreement by Ashland or any of its Affiliates that will be enforced after the Termination Date, from time to time contained in this Agreement or in any implementing agreement or transitional agreement entered into by Ashland or any of the Partners under this agreement? the
(c) all withholding liabilities (including withholding tax liabilities);
In no event shall Ashland be obligated to indemnify the Indemnified Purchaser for any matter taken into account in calculating any adjustment to the Purchase Price pursuant to Section 2.8.
Section 9.2.Reimbursement by the buyer.
Subject to the limitations set forth in this Agreement, Buyer shall indemnify and hold harmless Ashland and its affiliates and each of their respective officers, directors, employees, agents, consultants or representatives from the Closing Date.ashland compensated
'), from and against any damage caused or suffered to the extent arising or resulting from:
(a) any breach of any agreement or understanding of Buyer or any of its Affiliates to be performed on or before the Expiration Date, as the case may be, contained in this Agreement or in any implementing agreement or transitional agreement provided by the Buyer or any of its Affiliates under this Agreement or any breach or inaccuracy of any warranty or representation by the Buyer contained in this Agreement (including the Certificate provided pursuant to Section 4.3(b)).
(b) any breach of any obligation or agreement of Buyer or any of its Affiliates to be performed after the Termination Date, each contained in this Agreement or in any implementing agreement or transitional agreement entered into by Buyer or any of the Affiliates; of according to this Agreement ?
(c) any liabilities incurred (including tax liabilities incurred). the
(d) any dispute or remedial liability for which Ashland's obligation to indemnify Buyer pursuant to Section 2.5(k), (l) and (m) (if applicable) or the terms of Section 9.5 has ceased; or 9.6.
Section 9.3.damage report.
(a) If any of the persons to be compensated under this Article 9 (the “Excluded part
") suffers or has suffered any loss (other than loss arising from a third party claim), the indemnified party shall notify in writing the party from whom the indemnification is sought (the "Indemnified Party
") immediately after becoming aware of such claim, describing the loss, the amount or estimated value, if known or reasonably estimable, and the method used to calculate such loss, all in reasonable detail and with reference to the provisions of this Agreement, implementing agreement or transitional agreement with respect to which such loss has arisen. Failure to provide timely notice pursuant to this Section 9.3(a) shall not limit the indemnifying party's obligation pursuant to this Section 9: (i) except to the extent that
the indemnifying party is damaged thereby; and (ii) except to the extent that the expenses were incurred during the period during which notice was not given. The Indemnifying Party will reasonably cooperate with and assist the Indemnifying Party in determining the validity of any claim for indemnification (including providing reasonable access to and copies of records and information reasonably related to such matters and providing personnel on an appropriate basis for both sites. provide further information and explanations of any material relating to such matters If the Indemnifying Party fails to notify the Indemnifying Party within sixty (60) calendar days of receipt of notice pursuant to this Section 9.3 that the Indemnifying Party disputes the liability of the Indemnifying Party pursuant to this Section 9, within sixty (60) calendar days of receipt of the Indemnified Party's claim referred to in this notice, the Indemnifying Party's liability shall be conclusively deemed to have accrued.
(b) If any proceeding is brought by or against a third party against whom the indemnified party wishes to claim any liability or expense as damages pursuant to this Section 9, the indemnified party shall do so promptly upon receiving notice from such indemnified third party. requesting party must inform the indemnifier in writing with reasonable details of the procedure. The Indemnified Party must then provide copies of all notices and documents (including court records) received by the Indemnified Party to the Indemnifying Party promptly after receipt by the Indemnified Party in connection with the third-party claim. Failure to timely await and assert a defense of a claim pursuant to this Section 9.3(b) shall not limit the indemnifier's obligation under this Section 9: (i) except to the extent that the indemnifier so and for that purpose, any failure to give notice and offer the defense that results in the indemnifying party's failure to inspect or participate in the proceeding shall be deemed prejudicial to the indemnifying party, (ii) except to the extent charges were incurred during the period in which notice was not given; , and (iii) except as provided in Section 9.4 below.
Section 9.4.Third party claims.
(a) The party indemnifying pursuant to this Section 9 shall have the right, but not the obligation, to exercise and control, through counsel of its choice, the defense or prosecution of any third party claim, proceeding or action. searched under Section 9.1 or 9.2 (a "Claim by Third Parties
’), and the indemnifying party may compromise or reach an agreement;is offeredTHEThe Indemnified Party shall notify the Indemnified Party in advance of any proposed settlement or settlement.is offered,payment in advancethat the indemnifying party will not agree to enter into judgment or enter into any settlement in defense of such third party claims without the consent of the indemnifying party (which consent shall not be unreasonably withheld, conditioned or delayed) (i) to seek relief that does not involve the payment of monetary damages; and/or (ii) that does not unconditionally indemnify the indemnified party from the third party claimant for any and all liabilities related thereto. Notwithstanding the foregoing, the Indemnifying Party shall have no authority to assume the defense or prosecution of any third-party claim unless the indemnifying Party demonstrates, at the time of acquisition, (x) that it has the ability to actively and diligently pursue the defense; or the class, (y) cannot reasonably assume that the majority of damages resulting from such third-party claim are recoverable under this Agreement, or (z) the relief sought with respect to such third-party claim consists primarily of injunctive relief, or other legal remedy. Assuming that the defense or
In pursuing a third party claim, the Indemnified Party must permit the Indemnified Party to participate in the defense or prosecution of such action or claim through counsel of the Indemnified Party's choosing, but not to audit or file any documentation thereunder.is offeredthat the fees and expenses of such attorneys and any attorneys retained or employed by the Indemnified Party from the time the Indemnified Party assumes the defense or prosecution of the third party claim shall be borne by the indemnified party. The Indemnified Party shall be responsible for the indemnified party's attorney's fees, costs, and expenses for any period during which the indemnified party does not participate in the defense or prosecution of a third-party claim (other than any period that the indemnified party does not provide notification). third party claim under Section 9.3). Regardless of whether the Indemnifying Party has assumed the defense or prosecution of any third party claim, the Indemnified Party shall not assume or include any liability in connection with any settlement or release without the indemnifying Party's prior written consent to such third party claim. party claim. The indemnifying party's decision to assume the defense or prosecution of any third party claim shall not be deemed an admission by the indemnifying party that the claims asserted in the third party claim are within the scope of or subject to indemnification under this Agreement. If the Indemnified Party elects not to control or direct the defense or prosecution of any third party claim, the indemnified party shall have the right to participate in, but not conduct or control, the defense or prosecution of any third party claim and at its own expense for hiring legal counsel of your choice for this purpose.
(b) The parties shall cooperate in the defense or prosecution of any third party claim. Such cooperation includes (i) maintaining and, upon the indemnifying party's request, providing records and information reasonably related to such third party claims and (ii) providing personnel on a mutually reasonable basis to provide additional information and explanations regarding the Materials provided under this agreement.
Section 9.5. Editing, process.
(a) Subject to the limitations set forth in this Agreement, all covenants, agreements (including those relating to indemnification in Sections 9.1 and 9.2), warranties and representations made herein shall survive their entry into force.
(b) Except as otherwise provided in this Agreement, including as provided in Sections 9.5(c), 9.6, 9.7 and 9.8 and Article 10, neither Ashland nor Buyer shall be liable (whether in tort or otherwise) for any breach of any representation, warranty, representation, or of any obligation contained in this Agreement or any implementing agreement or transitional agreement, unless written notice pursuant to Section 9.3 has been received by the applicable indemnifying entity by the eighteenth (18) month after Expiration Date; AND
(c) Notwithstanding subparagraph (b) above: (i) the statements contained in Sections 5.1(a) (Organization), 5.2 (Principle; Binding), 5.21 (Broker), 6.1 (Organization), 6.2 (Principle ) and guarantees. Binding Effect) and 6.7 (Binding Effect) (collectively the "basic representations
") will survive Closing until the expiration of the applicable statute of limitations and the representation and warranty contained in Section 5.14(e) will survive Closing until the fifth anniversary of the Closing Date, (ii) the specified tax returns and warranties (iii) The obligations of Ashland, indemnify the purchaser's claimants for any damages
Purchaser's Ashland Indemnity Withholding Tax Liabilities and indemnification for Tax Liabilities assumed pursuant to Section 3.1(b)(v) shall survive the Closing indefinitely; (iv) the agreements and understandings of the parties (including those related to Indemnification in Sections 9.9.9) and to be performed after the Closing Date shall be effective for such period in accordance with their respective terms and (v) Ashland's obligations to indemnify Buyer's indemnifiers for any retained remedial obligations; they will survive. subject to indemnification under Section 9.1(c), Ashland will comply with the release causing such losses to the extent necessary to comply with environmental law or an applicable treaty required by a governmental authority, including the performance of necessary cleanup or the receipt of a "No Further Action Letter", a "Completion Letter" or other written notice of similar effect from a governmental authority having primary jurisdiction over the subject matter to the effect that such Losses, regardless of survivability, need not shall no longer be recoverable from Ashland. The terms generally applicable to the specified retained remedial obligations or other retained remedial obligations shall not have expired and the purchaser shall pay, discharge and settle all obligations, liabilities and liabilities related to such damages All claims related to willful misconduct or willful misrepresentation shall survive without limitation.
Section 9.6.Quantity restrictions.
(a) Ashland shall not be liable under Section 9.1(a) for any single loss (or series of related losses) unless such single loss (or series of related losses) exceeds US$175,000 and unless the aggregate of all of those damages for which Ashland would be liable but for this provision exceeds $18,600,000 in the aggregate (the "The road
") and in the event that such amount is exceeded, Ashland shall be liable to pay only the amount of such damages in excess of the Basket Value.however it is plannedthat Ashland shall not be liable under Section 9.1(a) for any loss in excess of US$93,000,000 in the aggregate (the “Here
(b) Notwithstanding anything to the contrary in Section 9.6(a), neither the Basket nor the Limit of Liability for Loss shall apply: (i) in relation to breaches of the Terms or (ii) in relation to Taxes.
(c) Ashland shall have no liability under Section 9.1(c)(i) for retained remediation obligations (other than those obligations relating to off-site locations that are not subject to the limitations of this Section 9.6(c)( (i)) on an aggregate basis in excess of $75,000,000 or (ii) for any other indemnification obligation retained for an individual loss (or series of related losses) under this Agreement, unless such single loss (or series of related losses ) exceeds $175,000 dollars and to the extent that the aggregate of all damages for which Ashland shall be liable, if this provision does not cumulatively exceed $5,000,000, and if such amount is exceeded, Ashland shall be liable to pay the amount of such damages until $5,000,000 exceeds U.S. dollars.
(d) Notwithstanding anything to the contrary herein, in no event shall Ashland's entire liability in (i) Section 9.1(a) be limited except for any liability for damages (A) related to violations of the Basic Terms or (B) related to Taxes , (ii) Section 9.1(c) for any litigation withheld, and (iii) Section 9.1(c) for any remedy obligations withheld in excess of $139,500,000 on an aggregate basis (the “general limit
The parties acknowledge that the aggregate limit is a single amount applicable to all claims subject to this Section 9.6(d) and that all pursuant to clause (i), (ii) or (iii) Indemnification Payments made pursuant by this section 9.6 (d) shall reduce the remaining amounts for all such matters within the Aggregate Limit.
(e) Notwithstanding anything to the contrary herein, in no event shall Ashland's aggregate liability under Section 9.1, other than any liability for damages with respect to taxes or withheld debts, exceed the Purchase Price (which may adjusted to the Unit). 2.8) (the "purchase price limit
"). The parties acknowledge that the purchase price limit is a single amount applicable to all claims under this Section 9.6(e) and that any indemnification payments made under Section 9.1 (excluding any liability for any damages related to taxes) will reduce the remaining balance to all such amounts within the limits of the purchase price limit.
Section 9.7.Other Restrictions.
(a) Buyer and Ashland will cooperate in resolving any claim or liability for which one party is required to indemnify the other party under this Agreement, including using its best efforts to resolve such claim or liability. In addition, each party will make reasonable efforts to mitigate any loss upon becoming aware of an event that could reasonably be expected or will actually result in loss, including costs incurred, but only to the minimum extent necessary to remedy of the violation. the loss. Notwithstanding anything to the contrary contained herein, if Buyer or Ashland fails to use commercially reasonable efforts to mitigate or resolve any claim or liability, the other party shall not be liable to compensate any person for any loss which could reasonably have been avoided if reasonable efforts had been made by Buyer or Ashland.
(b) The Indemnified Party shall use its best efforts to obtain any insurance proceeds or other payments from third parties. The amount of damages for which the Indemnified Party may be entitled to compensation under this Agreement shall be reduced by the amount of insurance proceeds or other third party payments actually received, made or incurred by the Indemnified Party or any of its affiliates in connection with this. retained damages (minus the amount of expenses incurred in obtaining such compensation). If, thereafter, after the Indemnified Party receives compensation under this Agreement for a loss and thereafter receives or makes any insurance product or other payment, the indemnified party shall promptly reimburse and pay to the indemnified party an amount equal to such insurance proceeds or equal to such payment (after deducting expenses incurred in collecting such, to the extent the indemnified party has not yet received payment for such expenses from the indemnifier), but not more than the amount of the indemnified party arising the indemnifier has previously indemnified the party in this matter.
(c) The amount of any loss for which compensation is provided in this Article 9 is increased (i) to reflect any net tax costs incurred by the indemnified party in receiving compensation payments under this Article (additions to such increase); ) and (ii) reduced to reflect any net tax benefit derived by the indemnified party from incurring or paying such loss. In computing the amount of such tax or tax benefit, the indemnified party shall recognize any other income, gain, loss, deduction or credit before recognizing anything resulting from the receipt of any indemnification payment under this agreement or from the occurrence or payment compensation for damage.
(d) If an indemnified party is indemnified under this Agreement for any losses related to third party claims, all rights and remedies of the indemnified party against such third party, etc. remedies against the third party.
(e) Notwithstanding the provisions hereof, in no event shall Ashland and its Affiliates be liable for any indemnification from Buyer and in no event shall Buyer and its Affiliates be liable for any indemnification from Ashland under any liability set forth in Section 9.1 or Section 9.2 for all indirect, consequential, special, incidental or punitive damages arising out of or in connection with this Agreement, any implementing agreement or transitional agreement, the proposed transactions, performance or breach of this Agreement or any liability or obligation is retained or assumed, except for damages for which the indemnitee is responsible for the final settlement of a third party claim.
(f) Notwithstanding anything to the contrary in this Agreement, the provisions of this Agreement are not intended to result in double payment of any amount payable under this Agreement and this Agreement shall be construed accordingly.
Section 9.8.thanks; Exclusive treatment.
(a) Except as expressly provided in this Agreement, any Implementation Agreement, or any Interim Agreement, Buyer acknowledges and agrees that, except for (i) claims of fraud or causes of action and (ii) claims for reasonable compensation relating to your breach of any contract or agreement of Ashland contained in this Agreement that requires post-contractual performance; Buyer's sole and exclusive remedy upon entering into this Agreement with respect to all claims against Ashland and its affiliates relating to this Agreement, the proposed transactions, any documents or certificates provided in connection therewith, the business, the assets transferred, the liabilities assumed, the liabilities retained, or any applicable law (includingbetween pen name
, any contribution or recovery rights under CERCLA or other environmental laws) or otherwise must comply with the indemnification provisions set forth in this Agreement. In addition, Buyer waives all rights, claims and causes of action (other than claims or causes of action based on fraud and claims for equitable relief related to Ashland's breach of any performance obligation or contract). (after Closing) you or any of its affiliates may have against Ashland or any of its affiliates or any of their respective officers, directors, employees, agents or consultants arising out of or pursuant to this Agreement, the Proposed Transactions, any document or certificate to be delivered in relation thereto, the Company, the assets transferred, the liabilities assumed, the liabilities retained or any applicable law (includingbetween pen name
, any contribution or claim under CERCLA or other environmental laws) or otherwise, except as provided in this Agreement for indemnification.
(b) EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ANY EXECUTIVE AGREEMENT OR ANY TRANSITIONAL AGREEMENT;
(A) ASHLAND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE ASSETS TRANSFERRED, THE OBLIGATIONS YOU ASSUME OR THE BUSINESS, ANY PROPOSED TRANSACTION (INCLUDING TRANSACTION). OR LICENSES) OR BUSINESS, PROPERTY, CONDITIONS OR PROSPECTS (FINANCIAL OR OTHERWISE) OR ANY OTHER MATTER AFFECTING THE ASSETS TRANSFERRED, LIABILITIES ASSUMED OR BUSINESS OPERATIONS AND REIMBURSEMENTS , ASSUMED OR TRANSFERABLE THIS AGREEMENT IS PROVIDED "AS IS, WHERE IS;" OR ASSUMED AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE ARE EXPRESSLY DISCLAIMED.
(c) Except as expressly provided in this Agreement, any Operating Agreement, or any Interim Agreement, Ashland acknowledges and agrees that, except for (i) fraud claims or causes of action and (ii) equitable relief claims with respect to any breach of any obligation or understanding of Buyer contained in this Agreement that requires performance after closing, Ashland's sole and exclusive remedy after closing with respect to any claim against Buyer and its affiliates related to this Agreement, the proposed transaction , any document or certificate delivered in relation thereto, the business, the assets transferred, the liabilities assumed or any applicable law (includingbetween pen name
, any contribution or recovery rights under CERCLA or other environmental laws) or otherwise must comply with the indemnification provisions set forth in this Agreement. Except as set forth above, Ashland waives all rights, claims and causes of action (other than claims or causes of action based on fraud and claims for equitable relief in connection with a breach of any obligation of the buyer or an agreement requiring performance). (After Closing) that you or any of its affiliates may have against Buyer or any of its affiliates or any of their respective officers, directors, employees, agents or advisors arising out of or pursuant to this Agreement; the Proposed Transactions, any document or certificate served in connection therewith discloses the company, assets transferred, liabilities assumed or any applicable law (includingbetween pen name
, any contribution or claim under CERCLA or other environmental laws) or otherwise, except as provided in this Agreement for indemnification.
(d) EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ANY ASSIGNMENT OR AN EFFECTIVE AGREEMENT, THE BUYER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, BY SHIPPING.
Implementation of measures related to environmental damage and related obligations
Section 10.1.performance standard.
Ashland will pay in good faith any losses for which it is liable under Section 9.1(a) (as a result of a breach of any representation or warranty in Sections 5.4, 5.8(a) (with respect to Charges. , 5.14, 5.15 or 5.16 hereof) ) or otherwise pursuant to Section 9.1 and arising under any environmental legislation or relating to environmental matters (“environmental loss
") at its own expense and in accordance with environmental legislation;however it is plannedNothing contained herein shall prevent Ashland from fulfilling its obligations at the lowest total cost commensurate with the scale of the project or activity in question, taking into account and having due regard to the customary requirements of competent governmental authorities, industry practices, as well as and health and activity. safety of workers and the public.
Section 10.2. Restrictions.
Except for the limitations contained in Section 9 of this Agreement, Ashland shall have no liability under Section 9.1 and shall have no obligation to indemnify any Buyer for any environmental damage if the cost, liability, event, circumstance or condition giving rise to such environmental loss: (i) is the result of closing a location, ceasing operations or changing the use of transferred property to a use materially different from the use of such transferred property on the Closing Date;Provided thatSuch site closure, shutdown or change of use after closure shall not relieve Ashland of its obligation to comply with environmental laws or any applicable contract with a governmental agency for assessment, response, removal, remediation or corrective action or any related activity monitoring, on transferred properties owned by or on behalf of Ashland at the time of closing, cessation of operations or change of use in connection with Ashland's obligations under Section 9.1(c) of this Commitment Specified Obligations document recovery and the other Retained Recovery Obligations (except that nothing in the preceding clause shall be construed to limit or regulate the applicability or conditions of the provisions of (ii)-(v) of this Section 10.2). (ii) results from the repeal, amendment or other modification of any environmental law or regulatory approval issued thereunder in effect on the Termination Date or from the enactment or reinterpretation of any environmental law after the Termination Date; iii) discovered as a result of Phase II or other interventional sampling, testing or investigation ("environmental testing
') performed after the Closing Date, excluding environmental testing performed: (a) by or on behalf of Ashland in connection with its obligations under Section 9.1(c) hereof for retained remedial obligations; (b) meet , investigate or otherwise remedy environmental conditions that may pose an immediate and significant risk to the environment or to the health, safety and welfare of employees, or to present to the public, (c) in response to an investigation, request , demand or demand from a governmental authority;Provided that, Buyer must have consulted with Ashland prior to conducting such environmental testing or (d) in connection with a condition initially identified as a result of construction or major maintenance
Activities conducted in the ordinary course of business commencing after the Closing Date on or under the Transferred Property. (iv) with respect to the transferred property, to the extent that the cost of such environmental loss is increased or the scope or magnitude of such environmental loss is exacerbated by any act or omission of any person other than Ashland or its affiliates, agents, contractors or subcontractors, unless such act or omission was performed under the direction or authority of a governmental authority; or
(v) refers to the removal or remediation of asbestos or asbestos-containing materials located on or within structural elements of the transferred property.
Section 10.3.Control, access, surveillance and sampling.
(a) Ashland shall direct and control all discussions, negotiations and proceedings with or before any governmental authority or third party relating to environmental damage, including the right, upon notice and consultation with Buyer, to resolve or otherwise resolve any notices, proceedings or liability arising out of any result or part of such environmental loss (except to the extent that Ashland has refused to indemnify Buyer for such environmental loss pursuant to Section 9.1, in which case Buyer shall have the right to control, control, liquidate or settle ). environment loss).is offeredthat Ashland, without Buyer's prior written consent, which shall not be unreasonably withheld, shall not enter into any agreement or arrangement that may reasonably adversely affect the operation of the property or business transferred by Buyer, affect the cost and its expenses, to participate in any discussion, negotiation or proceeding with or before any governmental body or third party related to such environmental damage.
(b) Buyer grants Ashland and its consultants an irrevocable, fully paid-up permit to enter the Transferred Properties in order to fulfill its obligations in respect of any environmental losses;is offeredthat Ashland will conduct any assessment, remedial or responsive action in a manner that does not unreasonably disrupt the ongoing operations of the Transferred Property or the conduct of business, unless Ashland is directed to do so by a governmental authority;The license granted herein shall terminate upon the termination of all obligations of Ashland pursuant to Section 9.1.
(c) Buyer agrees that, in order to comply with its environmental damage obligations, Ashland may take soil samples or install additional groundwater monitoring wells and sample such wells and soils as required in specific problem areas.is offeredthat Ashland will conduct such assessment, remedial or responsive action in a manner that does not unreasonably interfere with the continuing operations of the Transferred Property or the conduct of the Company's purchaser, unless Ashland is directed by a governmental authority to do otherwise. Buyer shall use commercially reasonable efforts to avoid interference with or damage to Ashland's monitoring wells, underground pipelines and/or remedial equipment of any kind located on or adjacent to the Transferred Property and we shall indemnify Ashland for any damage or interference, regardless of any wording in Section 10.2(iv) .
Section 10.4. Documents.
Each party shall provide to the other party copies of all written and reasonable descriptions of all other material communications from any governmental authority or other person to or from such governmental authority not later than five (5) business days after receipt, or sooner, if the circumstances justify it or communicate it to other people who are somehow related to the environmental losses.
Section 10.5. Cooperation.
(a) Buyer will cooperate with Ashland in handling any environmental notice, lawsuit or liability claim; (ii) conducting and completing any assessment, response, remediation, remediation, corrective action or follow-up activity, including enforcement, to the extent practicable; expeditiously, of any permits, orders, filings, assignments and other instruments required by the relevant governmental authorities and providing copies to the extent possible requested by Ashland; (iii) upon request and as soon as practicable, copies of all records, files, documents, instruments and certificates owned and controlled by Buyer not previously made available to Ashland relating to the Transferred Assets, to transmit to Ashland any actual document or alleged presence of hazardous materials at any delivered property or other location and any other document, information or condition reasonably requested by Ashland in connection therewith; (iv) take any further ministerial action (including obtaining Buyer's consent and enforcing such use restrictions or controls (by methods including deed restrictions or other institutional controls requiring continued industrial use of the Transferred Properties)) necessary for Ashland's compliance with any obligations set forth in this Agreement or otherwise as arising from environmental law reasonably required by Ashland. and (v) provide Ashland with reasonable assistance in recovering insurance proceeds related to withheld remedial obligations or withheld litigation, including by providing records, records and other documentation pursuant to (iii) of this Section 10.5(a) and Ashland insurers, as appropriate, advance notice to provide reasonable access to such Transferred Assets as reasonably required by the applicable insurance policies or any supplement to such policies.
(b) None of the foregoing shall obligate Buyer to limit or unreasonably limit its business activities and none of the foregoing shall obligate Buyer to bear any out-of-pocket expenses.
Section 11.1. Tips.
Any notice or other communication under this Agreement shall be deemed to have been duly given and shall be given if in writing and delivered to the party to whom it is addressed in person, if delivered by certified mail with return receipt requested, or by international recognized courier service or shipment by fax,is offeredthat the sending of the facsimile shall be promptly confirmed by written confirmation from such person to the person at the address below or to such other address as may be similarly named below in writing;
if at Ashland or another asset sales company:
50 East River Center Boulevard,
Covington, Kentucky 41012
Attention: General Counsel
with a copy to:
50 East River Center Boulevard
Covington, Kentucky 41012
Phone: 859 ###-###-####
Fax: 859 ###-###-####
Attention: Deputy General Counsel
Cravath, Swaine & Moore LLP
825 Eighth Ave
New York, NY 10019
Fax: (212) 474-3700
Attention: Susan Webster
either to the Buyer or an affiliate of the Buyer:
c/o TPG Capital, L.P.
345 California Street, Suite 3300
San Francisco, CA94104
Attention: Ronald Cami
with a copy to:
Vinson & Elkins LLP
1001 Fannin Street, Suite 2500
Houston, Texas 77002
Attention: Keith Fullenweider
Section 11.2.The change; renounce.
Any provision of this Agreement may be modified or waived only if the modification or waiver is in writing and signed by Buyer and Ashland, in the case of modification, or the other party to whom the waiver is intended, in the case of a waiver, is not in default or delay by any party in exercising any right, power or privilege under this Agreement shall be construed as a waiver thereof, nor shall any single or partial exercise thereof preclude any further or subsequent exercise thereof or the exercise of any other right, power or privilege.
Neither party may assign any of its rights or obligations under this Agreement, including by sale of stock or by operation of law in connection with any merger or sale of substantially all assets, without the prior written consent of the other party. except that, without such consent, the Purchaser may (i) assign its rights to purchase the Transferred Assets to one or more of its affiliates (including the Purchasers) and (ii) assign the rights of hereunder to pay the debts of Buyer and its affiliates, and Ashland may assign its rights to sell the assets transferred hereunder to one or more of its respective affiliates.is offeredTHESuch assignment by Buyer or Ashland, as the case may be, shall not relieve the assignee of its obligations under this Agreement.
Section 11.4.full agreement.
This Agreement (including the Attachments and Attachments), the Side Letters and the Sponsor Guarantee constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, whether oral or written, relating to such matters; except The Non-Disclosure Agreement, shall remain in full force and effect for the period provided therein, and any other written agreement between the parties expressly provided that it is not superseded by this Agreement.
Section 11.5.fulfillment of obligations.
Any obligation of a party to another party under this Agreement that is performed, performed or performed by an affiliate of such party shall be deemed to have been performed, performed or performed by such party.
Section 11.6.Interest groups.
This Agreement will inure to the benefit of and bind the parties and their respective successors and permitted assigns. Except as provided in the following sentence, nothing in this Agreement, express or implied, is intended to assign any right or remedy under or under this Agreement to any person other than Buyer, Ashland or their successors or permitted assigns. Notwithstanding the foregoing, Funding Sources are third party beneficiaries pursuant to the provisions of Sections 11.11, 11.16, 8.2(a), 8.2(d). ) and 8.2(e). Notwithstanding anything contained herein to the contrary, Section 8.2(a), Section 8.2(d), Section 8.2(e), Section 11.11, Section 11.16 and this Section 11.6 (and all provisions of this Agreement to the extent of any modification, waiver ) to apply. or termination of these Terms would change the substance of Sections 8.2(a), 8.2(d), 8.2(e), 11.11, 11.16 and this Section 11.6) shall not be modified, waived or terminated in any manner that has any effect or will in any way be prejudicial to the Funding Sources without the prior written consent of the Funding Sources.
Section 11.7.Public Disclosure.
No communication, release or announcement will be made to the public or to any employee or other person not directly involved in the negotiation or approval of this Agreement, any amendment or proposed Transaction without the prior consent of the other party ((the consent may not be unreasonably withheld, conditioned or delayed), unless such notice, release or announcement is required by law or by the rules or regulations of a U.S. or foreign exchange or similar organization, in which case the party shall give notice by publishing or notice must give the other party a reasonable time before publication to comment on it.however it is plannedthat each party may, after reasonable notice and consultation with the other party, make internal announcements to its respective employees that are consistent with the parties' prior public disclosures regarding the proposed transactions;
Section 11.8.information return.
If, for any reason, the Proposed Transactions are not consummated, the Purchaser shall promptly deliver to Ashland all books and records made available by Ashland or an Asset Sales Company, any of their respective affiliates or any of their respective agents; employees or their agents (including any and all books and records) return copies, summaries and summaries (if any) in accordance with the terms of the confidentiality agreement.
Section 11.9. Court fees.
(a) Whether or not the transactions contemplated by this Agreement are consummated, each party shall be responsible for paying its own costs and expenses or those of its affiliates, except as expressly provided herein, including of Section 11.9 in connection with preliminary negotiations and the performance of its own obligations under this Agreement and the Additional Agreements, including the fees of any lawyers, accountants, brokers or consultants employed or retained by or on behalf of such party.
(b) Registration fees required by any state competition authority shall be borne by the Buyer.
Section 11.10.Time plans.
The disclosure of any matter in any Addendum to this Agreement does not constitute an express acceptance by Ashland or any Asset Sales Company or otherwise suggest that such matter is material to the purposes of this Agreement. Disclosure of any matter, fact or circumstance in any Schedule of this Agreement shall be deemed a disclosure for the purposes of any other Schedule to the extent such information is reasonably relevant to that other Schedule.
Section 11.11.Applicable law? jurisdiction.
This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law principles. Both Ashland and Buyer irrevocably consent to the exclusive jurisdiction of the Delaware Court of First Instance or venue, if any, for the purposes of any proceeding arising out of this Agreement, the Amendments or any Proposed Transaction. No court located in the State of Delaware or a United States federal court located in the State of Delaware and the appellate courts of such courts shall have jurisdiction (including any claim involving any source of funding) or to recognize or enforce any and each party irrevocably and unconditionally agrees that any claim relating to this proceeding may be litigated in such state court, to the extent permitted by applicable law, in such federal court. Ashland and Buyer agree that such proceedings shall be brought in the Court of Delaware or, if such proceedings cannot be brought in that court for reasons of jurisdiction, in a court in the State of Delaware or in the federal court of the United States having its seat in State of Delaware. Both Ashland and Buyer further agree that service of any suit, summons, notice or document by US registered mail to the above party's address shall constitute effective service of process on any claim, dispute, etc. proceeding in Delaware with respect to any matter for which such party has submitted to jurisdiction pursuant to this Section 11.11. Ashland and Buyer irrevocably and unconditionally waive any objection to any jurisdiction in any proceeding, action or proceeding arising out of this Agreement or the Amendments or any proposed Transaction to be submitted to any court set forth in the first sentence of this Section 11.11 and further, irrevocably and unconditionally waives and agrees not to bring any action, proceeding or proceeding in any court or any action in any court brought in an improper venue.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same Agreement. Delivery of a signed copy of a signature page of this Agreement by facsimile or other electronic imaging means shall be deemed delivery of a manually signed copy of this Agreement.
References to titles and indexes are for convenience only, are not part of this Agreement, and shall not be construed as limiting or altering the terms of this Agreement.
Section 11.14.Severability clause.
The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions of this Agreement. If any provision of this Agreement or its application to any person or circumstance is invalid or unenforceable, (a) it shall be replaced by a suitable and equitable provision to reflect, to the extent valid and enforceable, its intent and purpose; of the invalid provision or enforceable provision unenforceable, and (b) the remainder of this Agreement and the application of such provision to any other person or circumstance shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of this provision or its enforcement in any other jurisdiction.
Section 11.15.main language.
The English language is the final and authoritative text of this Agreement, regardless of any translation of this Agreement into any other language.
Section 11.16.Exemption from trial by jury.
TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY WAIVES ANY RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY DISPUTE ARISING, DIRECTLY OR INDIRECTLY, OUT OF, SECURED OR IN CONNECTION WITH THE ACTUAL AGREEMENT OR ANY CHANGE CALCULATED HEREIN OR CONTINUOUSLY (INCLUDING THE SHARES OF THE PARTIES ONE FUNDING SOURCE). EACH PARTY (A) ACKNOWLEDGES THAT NO AGENT, AGENT, OR ATTORNEY OF EITHER PARTY HAS EXPRESSLY STATED OR OTHERWISE THAT THE OTHER PARTY SHALL BE LIABLE OTHERWISE, THEY HAVE BEEN ADVISED OF THIS AND THE OTHER PARTIES, AMONG OTHER WAYS OF CONNECTION TO THIS AGREEMENT, A TRANSITIONAL AGREEMENT AND AN EFFECTIVE AGREEMENT, AS APPLICABLE, subject to the mutual waivers and certifications in this Section 11.16.
Section 11.17.specific performance.
The parties agree that if any provision of this Agreement is not performed in accordance with its terms or is breached or threatened to be breached, it will result in irreparable harm and the parties will have no adequate remedy. Accordingly, it is agreed that the parties shall be entitled to equitable relief without proof of actual damages, including in the form of one or more injunctions or orders for specific performance (including an order for Buyer to enforce its rights under a binding letter) prevent violations of this Agreement and to expressly enforce the terms and provisions of this Agreement. Such equitable relief shall be in addition to any other remedy to which the parties are entitled at law or in equity as remedies for such default, breach or threatened breach. Each party agrees to (a) fully cooperate in any attempt by the other party to obtain such equitable relief and (b) waive any security or bond requirement in connection with such equitable relief. Each party further agrees that the only valid defense it may assert in response to any claim for equitable relief is that it disputes the existence of a breach or threatened breach of any of the terms of this Agreement. Notwithstanding the foregoing, it is expressly agreed that Ashland shall be entitled to demand specific performance to cause the damage. Equity Financing may be raised to finance the proposed transactions only if (i) all of the conditions in Sections 4.1 and 4.2 are met or waived (except as provided in Section 4.1(d) and
(other than those conditions which, by their nature, must be satisfied by actions taken at closing) at the time of closing would have occurred if the equity financing had not been funded, (ii) the financing provided by the debt The Commitment Letter (as amended, modified or revoked in accordance with Section 7.6) (or, if alternative financing is used in accordance with Section 7.6, in accordance with the relevant provisions) has been funded or will be funded at the time of closing, if the financing with equity is funded at the time of Closing and (iii) Ashland has irrevocably confirmed that the closing pursuant to Article 3 will occur upon completion of the specified performance and that the Equity Financing and the Debt Financing are funded.
IN WITNESS WHATthe parties have executed or caused to be executed this Agreement on the above date.
TPG ACCOLADE, LLC
/s/John E. Viola
/s/ John W. Joy
Vice President, Corporate Development
What is agreement of purchase and sale? ›
An Agreement of Purchase and Sale is a written contract between a seller and a buyer for the purchase and sale of a particular property. In the Agreement, the buyer agrees to purchase the property for a certain price, provided that a number of terms and conditions are satisfied.What is the general agreement of the buyer and the seller? ›
“Contract” means either the contract agreement signed by both parties, or the purchase order signed by Buyer and accepted by Seller in writing, for the sale of Products or Services, together with these Terms and Conditions, Seller's final quotation, the agreed scope(s) of work, and Seller's order acknowledgement.What is the difference between purchase agreement and purchase and sale agreement? ›
A purchase agreement is the final document used to transfer a property from the seller to the buyer, while a purchase and sale agreement specifies the terms of the transaction. Parties will sign a purchase agreement after both parties have complied with the terms of the purchase and sale agreement.What is an agreement between two parties the buyer and the seller? ›
A sales and purchase agreement is a legally binding agreement obligating a buyer and a seller to terms of a transaction. The SPA outlines all of the terms and conditions of the exchange and must be signed by both parties.What is a buy-sell agreement and why is it important? ›
A buy-sell agreement provides a plan for the orderly transfer of any owner's business interest. Consider a buy-sell agreement for your business if: You have two or more owners. You want to provide protection in the event of any owner's termination of employment, retirement, divorce, disability, or death.What type of contract is a typical real estate purchase and sale contract? ›
Real estate contracts are typically bilateral contracts. A bilateral contract is a reciprocal agreement between two parties in which each party promises to perform an act in exchange for the other party's promised performance.What basic terms must be in the agreement of sale? ›
- Buyer and seller names and contact information.
- Description of goods, services, or property being purchased.
- Payment amount, dates, and method.
- Liability of each party in the case of loss, damage, or delivery failure.
- Ownership information, such as when ownership formally transfers to the buyer.
The three types of Buyer's Agreements are the following: Exclusive purchase, exclusive seller, and closed buyer agency.What is a purchase agreement for the purchase of real property? ›
A real estate purchase agreement is a legally binding agreement that governs the purchase and sale of a property. Made between a buyer and seller, it defines the terms of the transaction and the conditions under which a sale will occur.What happens after the purchase agreement is signed? ›
Once you have signed the purchase agreement, you will need to apply for a loan. The loan application will ask for your financial information, including your income, debts, and assets. The lender will also pull your credit report. After you have applied for the loan, the lender will underwrite the loan.
Which two contingencies are commonly included in your purchase agreement? ›
Typically purchase agreements are contingent on – inspection contingency and financing contingency. The inspection contingency clause in a purchase agreement requires the buyer to inspect the property before signing the contract.What do I need to know before signing a purchase agreement? ›
- Seller and buyer names.
- Property description.
- Offer price.
- Financing terms.
- Earnest money deposit.
- Contingencies (inspection, appraisal, your own home sale, etc.).
- Closing costs and terms.
- Deadline for acceptance.
Exclusive right-to-represent contracts. This is the most common buyer-broker agreement between home buyers and brokers. This agreement outlines the obligations of the broker, the broker-agent relationship, and the responsibilities of the buyer.What legal document is an agreement between two parties? ›
A contract is a legally binding agreement between at least two entities. It can be two or more people, two or more organizations, or a combination of the two. These agreements usually exchange something that has value for all involved parties.What is a legally binding agreement between two parties called? ›
A contract is a legally enforceable agreement between two or more parties that creates an obligation to do (or not do) a particular thing.What are the common buy-sell agreement mistakes? ›
Common Buy-Sell Agreement Mistakes
Not coordinating with the other parties. Failing to select the proper buy-sell agreement. Inadequately identifying triggering events. Not accounting for provisions once the event triggers.
The most common buy and sell agreements are cross-purchase, and entity-purchase (redemption); some agreements will combine the two. Cross-purchase agreements allow remaining owners to buy the interests of a deceased or selling owner.What are the four types of buy sell agreements? ›
- Cross-purchase agreement.
- Entity purchase agreement.
- Business-continuation general partnership.
General features. Justinian identifies four types of real contract – contracts in re (in a thing) – mutuum, commodatum, depositum and pignus. Common to all four was an agreement, and the delivery of a res corporalis. They are in contrast to consensual and inominate contracts.What is another name for a real estate sales contract? ›
A real estate sales contract is also referred to as a real estate purchase agreement, real estate purchase contract, or a home sale contract.
What are real estate contracts commonly called? ›
A purchase agreement, or sales contract, is the most common type of real estate contract. As the name suggests, this is a real estate contract that lays out an agreement between the buyer and seller of a specific property.How binding is a purchase and sales agreement? ›
Are Purchase And Sale Agreements Legally Binding? Yes, PSAs are legally binding contracts. If either the buyer or the seller don't uphold the terms of the contract, the other party has the right to take legal action. They can sue the offending party to uphold their part of the contract.What clauses must exist for an agreement of sale to be valid and enforceable? ›
A contract is a legal agreement between two or more parties in which they agree to each other's rights and responsibilities. Offer, acceptance, awareness, consideration, and capacity are the five elements of an enforceable contract.What are the five essential elements that must exist for a real estate sales contract? ›
Required Elements of a Real Estate Contract
To establish legality, a real estate contract must include a legal purpose, legally competent parties, agreement by offer and acceptance, consideration, and consent.
Types of Purchase Agreements
There are four primary types of purchase orders. The difference is between them is essentially based on how much information is known at the time the order is made. The four types are standard purchase orders, planned purchase orders, blanket purchase orders, and contract purchase orders.
These agreements must include an expiration date, a fair housing statement, a blockbusting statement, and a signature line for both the broker and the seller.What is the most common type of agency agreement? ›
The most common is the Exclusive Right to Sell or Lease Listing Agreement. The means there is an agency agreement between the seller and the broker, granting the broker the exclusive right to represent the seller in the sale or lease of the seller's property.Which of the following contracts are void? ›
Examples of void contracts include the following: Contracts with a party who's not mentally or legally competent, such as someone with a mental illness or a minor. Contracts that involve illegal actions, such as committing a crime. Contracts requiring an impossible performance or the occurrence of an impossible event.What is a legally binding offer to purchase in real estate? ›
By signing the contract, the buyer confirms the amount of his offer and makes legal his intent to follow through on it. In California, a legally binding contract is one that is entered into by consenting adults with the capacity to do so; in other words, both parties must be of legal age and of sound mind.When a buyer signs an offer to purchase a property the broker receives? ›
After negotiating the price and terms, the buyer and seller sign an offer to purchase and contract, and the buyer gives the seller (or the seller's broker) an earnest money deposit to show good faith in the transaction.
Can a buyer change their mind after signing a contract? ›
The homebuyer can back out of a purchase even after you've signed a purchase and sale agreement (PSA). The ramifications of a buyer walking away from the agreement vary based on how the contract was written and the reason for backing out.Can a seller change their mind after accepting an offer? ›
Yes. A seller can back out of an accepted offer or before closing, as long as there are no specific clauses that state otherwise. That being said, whether or not a seller can back out of a contingent offer depends on the contract that was written and what is mentioned in it.Who keeps the contract after signing? ›
Keep an Original Signed Copy of the Contract in Your Files
That means if there are two parties to the contract, two identical contracts must be signed. One original copy of the contract should go to you, and one original copy should go to the other party.
This house sale contingency clause allows the buyer to walk away from their purchase agreement if they cannot sell their home when they expect. The home sale clause is the least acceptable of all the real estate contract contingencies. A home sale contingency creates tremendous risk for a seller.What are the 4 contingencies that you should put in the purchase and sale agreement? ›
Some of the most common real estate contingencies include appraisal, mortgage, title and home inspection contingencies. Many home buyers also include a sale of prior home contingency, which allows them to withdraw an offer if they are unable to sell their current home within a specified timeframe.Can a buyer cancel an offer to purchase? ›
Can a homebuyer back out of an accepted offer? The short answer: yes. When you sign a purchase agreement for real estate, you're legally bound to the contract terms, and you'll give the seller an upfront deposit called earnest money.What two things you should do before signing a contract? ›
Read through the entire contract, even the fine print, before signing. After you sign, if you do not hold up on your end of the bargain, the other party to the contract can take action against you. Make sure you understand the entire contract. Many contracts have clauses in them that specify how things are enforced.How long are most realtor contracts? ›
Some of the most common lengths of time for listings include 30 days, 90 days, six months and one year. Your agent will typically expect you to choose one of these four options for your real estate listing agreement.Is a purchase agreement necessary? ›
You need a real estate purchase agreement if you are selling or buying a house. Depending upon your situation, the person who provides the real estate purchase agreement may vary. You generally have two options when selling a home: Represented by a real estate agent.What's a major benefit to a buyer if she signs a buyer representation agreement? ›
A Buyer's Representation Agreement clarifies expectations, helping you understand what you should and shouldn't expect from your buyer's rep, and what they will expect from you, which usually centers on loyalty.
What is the most common disclosure in real estate? ›
- Natural Hazards Disclosure. First on the list is the natural hazards disclosure. ...
- Market Conditions Advisory (MCA) Market Conditions Advisory, also known as MCA, covers items more financial in nature. ...
- State Transfer Disclosure. ...
- Local Transfer Disclosure. ...
- Megan's Law Disclosures.
First and foremost, a purchase agreement must outline the property at stake. It should include the exact address of the property and a clear legal description. Additionally, the contract should include the identity of the seller and the buyer or buyers.What is an agreement between two companies called? ›
A business partnership agreement is a legal document between two or more business partners that spells out the business's legal structure and purpose.What is an agreement between you and your company called? ›
Business contracts—when executed correctly—can help to manage business expectations and avoid liability. Before setting up shop, every business requires contracts that legally bind parties and ensure that the business is law-abiding.What do you call an agreement made between different companies? ›
A joint venture (JV) is a business arrangement in which two or more parties agree to pool their resources for the purpose of accomplishing a specific task. This task can be a new project or any other business activity.What is a purchase and sale agreement Massachusetts? ›
The purchase and sale agreement is the contract between the buyer and seller of real estate. It sets out the obligations of each party from the time the property is taken off the market to the closing. A standard form agreement is used in most residential real estate transactions in Massachusetts.Can a buyer pull out after signing contracts? ›
A buyer can pull out of a house sale after contracts have been exchanged, but there are legal and financial consequences to this. If a buyer pulls out of a house sale after contracts have been exchanged, they will forfeit their deposit and may be liable for other costs incurred by the seller.How soon after signing an agreement is it legally binding? ›
If the person who signed it did not date the signature, the contract becomes active when the agreement leaves his or her hands. However, if the contract includes an effective date, the contract becomes valid from the stated date, and not when the signatures are dated.What should you watch out for a purchase agreement? ›
- Buyer and Seller Information. ...
- Sale Inclusions. ...
- Sale Exclusions. ...
- Disclosures. ...
- Terms and Pricing Conditions. ...
- Possession Terms and Conditions. ...
- Default Clause. ...
- Closing Details.
First and foremost, a purchase agreement must outline the property at stake. It should include the exact address of the property and a clear legal description. Additionally, the contract should include the identity of the seller and the buyer or buyers.
How legally binding is a purchase agreement? ›
A purchase agreement is a legal document that is signed by both the buyer and the seller. Once it is signed by both parties, it is a legally binding contract. The seller can only accept the offer by signing the document, not by just providing the goods.What are two types of buy-sell agreements? ›
- In a cross-purchase agreement, the remaining owners or partners purchase the share of the business that is for sale.
- In an entity-purchase agreement (also known as a redemption agreement), the business entity itself buys the deceased's share of the business.
Sale is the transfer of ownership from a seller to the buyer for a determined price. Agreement to sell is also a transfer of ownership, but at a future date or when specified conditions are met. You can think of the agreement to sell as a sale that comes with specific terms and conditions.Who signs the purchase and sale agreement first in Massachusetts? ›
Massachusetts Purchase and Sale Review FAQ
The tradition and custom in Eastern Massachusetts is for the Buyer to sign it first. Legally speaking, this may not matter as it is not a valid contract until both parties sign.
A contingency is a potential occurrence of a negative event in the future, such as an economic recession, natural disaster, fraudulent activity, terrorist attack, or a pandemic.