EXHIBIT 10.8
TRANSFER OF ASSETS
AND ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND LEASES
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TRANSFER OF ASSETS AND ASSIGNMENT OF CONTRACTS AND LEASES
(this "Agreement") dated as of October 1, 1998, between XX
XXXXXXXXXX, L.P., a Delaware limited partnership ("Grantor"),
and THE XXXXXXXXXX CORPORATION, a Delaware corporation
("Grantee").
WHEREAS, Grantor is the sole shareholder of Grantee, which was
formed to own and manage Grantor's business. As part of its capital contribution
to Grantee, Grantor is transferring all of its assets and assigning all of its
rights under its contracts and leases to Grantee.
NOW, THEREFORE, in consideration of the issuance to Grantor of
all the issued and outstanding capital stock of Grantee, Grantor and Grantee
hereby agree as follows:
SECTION 1. Assignment. Effective at 12:01 a.m. on the date
hereof, Grantor hereby grants, conveys, transfers and assigns to Grantee, its
successors and assigns, and Grantee hereby accepts from Grantee:
(a) all of Grantor's rights, title and interest in and to all
assets (including all intangible assets) owned by Grantor or otherwise used by
Grantor or arising under or in connection with its business, including, without
limitation the following (the "Assets"):
(i) all inventory, accounts receivable, machinery, equipment,
supplies and other personal property owned by Grantor on the date
hereof;
(ii) all of Grantor's books, records, reports, documents and
files, including without limitation, customer and supplier lists, sales
data, brochures, catalogs, mailing lists, art work, photographs and
advertising material, accounting data, property records, manufacturing
records and personnel records, whether in electronic form or otherwise.
In addition, upon request, Grantor shall provide Grantee with copies of
all of Grantor's tax records and tax returns;
(iii) all right, title and interest in and to any intellectual
property rights of Grantor (including patents, trademarks, trade names,
copyrights, and confidential and proprietary drawings, designs,
inventions, trade secrets, royalty rights, work notes, market studies,
consultant's reports and similar property, tangible or intangible), and
all files relating thereto;
(iv) all right, title and interest in and to the goodwill of
Grantor;
(v) all prepaid expenses of, or for the benefit of, the
Grantor;
(vi) all the real property of Grantor, together with all
rights, titles, appurtenant interests, covenants, licenses, remainders,
reversions, privileges and benefits thereunto belonging, including all
right, title and interest in and to any easements, rights-of-way,
rights of ingress or egress or other interests in, on or under any
land, highway, street, road or avenue, open or proposed, in, on,
across, in front of, abutting or adjoining such real property (the
"Real Property"); and
(vii) all other assets of the Grantor (including without
limitation all causes of action, contract rights and warranty and
product liability claims, whether or not in litigation on the date
hereof).
(b) all of its rights, interests and obligations in, to and
under the equipment leases, real estate leases, contracts, contract rights,
licenses, permits, plans, commitments, registrations, certificates, consents,
orders and approvals and other agreements, including, without limitation, those
identified on Schedule II attached hereto and made a part hereof (the
"Contracts"), together with all monies and other sums payable to or receivable
by Grantor under or in respect of the Contracts and all of Grantor's rights
under the Contracts, with full power and authority to enforce performance and
demand, xxx for and collect damages in connection therewith.
SECTION 2. Assumption. Effective upon the date hereof, Grantee
does hereby irrevocably accept and assume from Grantor, and subsequently in due
course shall pay, honor and discharge, all of Grantor's liabilities and
obligations under the Contracts or in connection with the Assets accruing on or
after the date hereof, together with all current and long term liabilities of
Grantor arising on or before the date hereof.
SECTION 3. Further Assurances. From and after the date here
of, upon written request from Grantee, Grantor shall execute, acknowledge and
deliver all such further acts, assurances, deeds, assignments, transfers,
conveyances and other instruments and papers as may reasonably be required to
sell, assign, transfer, vest, convey and deliver full right, title and interest
in, and possession of, the Assets and Contracts to Grantee and to otherwise
consummate the transactions contemplated hereby.
SECTION 4. Representations. (a) By Both Parties. Each party to
this Agreement represents and warrants (i) that it is duly organized, validly
existing and in good standing under the laws of its organization, (ii) that it
has full power and authority to enter into this Agreement, (ii) that this
Agreement has been duly authorized by such party, (iii) that this Agreement is a
legal, valid and binding agreement of such party enforceable against such party
in accordance with its terms, and (iv) that it has obtained all consents and
approvals, and made all registrations, required to be made or obtained to
consummate the transactions contemplated hereby.
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(b) By Grantor.
(i) Valid Title. Grantor has good and valid title to all
Assets transferred pursuant to this Agreement. The Assets and Contracts
transferred hereby are not subject to any prior assignment, conveyance,
transfer or agreement to assign, convey, transfer or participate, in
whole or in part.
(ii) No Contravention. The execution, delivery and performance
of this Agreement does not violate (x) any law, rule, regulation,
order, writ, judgment, injunction, decree, or determination presently
in effect having applicability to the Grantor, (y) any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which the Grantor may be bound or to which any of the assets of the
Grantor is subject, or (z) any provision of the Grantor's agreement of
limited partnership.
(iii) All Assets and Liabilities. The assigned Assets
constitute all assets of Grantor and the liabilities assumed by Grantor
constitute all liabilities of the Grantor.
SECTION 5. Bulk Transfer Laws. The Grantor hereby waives
compliance by the Grantee with the provisions of any so-called "bulk transfer
law" of any jurisdiction in connection with the tranferer of the Assets. The
Grantor agrees to indemnify and hold the Grantee harmless, in cash payable upon
demand, against any and all liabilities, including costs and expenses that may
be asserted by third parties against the Grantee as a result of any
non-compliance by the Grantor with any such bulk transfer law.
SECTION 6. Indemnification. (a) Grantee shall indemnify and
hold Grantor harmless from all claims arising from or relating to the Assets or
Contracts arising on or after the date hereof, including but not limited to all
costs, interest, penalties, and expenses (including reasonable legal, accounting
and expert fees) (collectively "Losses"), except solely those Losses resulting
from or alleged to result from defects in Grantor's right, title and interest
thereto as of the date hereof and from any actions or inactions of Grantor prior
to the date hereof.
(b) Grantor shall indemnify and hold harmless Grantee from all
claims arising from or relating to (i) any inaccuracy of any representation or
warranty of Grantor contained herein or (ii) the Assets or Contracts prior to
the date hereof, including but not limited to all Losses, except solely those
Losses resulting from or alleged to result from any actions or inactions of
Grantee on or after the date hereof.
THIS INSTRUMENT IS MADE WITHOUT WARRANTY OF ANY KIND BY
GRANTOR, WHETHER EXPRESS OR IMPLIED (OTHER THAN WARRANTIES OF TITLE AND OTHER
REPRESENTATIONS MADE BY GRANTOR HEREIN), INCLUDING WITHOUT LIMITATION ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL PROPERTY IS
TRANSFERRED AS IS. Notwithstanding the foregoing, Grantor hereby transfers to
Grantee all manufacturers' warranties and other warranties of third parties made
in connection with the property transferred hereby.
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SECTION 7. Entire Agreement. This Agreement embodies the
entire agreement and understanding among the parties with respect to the subject
matter hereof and supersedes all prior agreements and understandings relating to
the subject matter hereof. This Agreement shall not be changed or amended
without the written agreement of all parties hereto.
SECTION 8. Parties in Interest. All the terms and provisions
of this Agreement shall inure to the benefit of and be binding upon and be
enforceable by the parties and their respective successors and assigns.
SECTION 9. Severability. In the event that any one or more of
the provisions contained in this Agreement shall, for any reason, be held
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement.
SECTION 10. Governing Law. This Agreement together with all of
the rights and obligations of the parties hereto, shall be construed, governed
and enforced in accordance with the laws of the State of New York without regard
to conflicts of law doctrines.
IN WITNESS WHEREOF, Grantor and Grantee have executed this
Agreement as of the date first above written.
XX XXXXXXXXXX, L.P.
By XX Xxxxxxxxxx Acquisition Corp.,
its general partner
By: /s/ Xxxxxxx X. Xxxxxxxxxx, Xx.
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Chief Executive Officer
THE XXXXXXXXXX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxxx, Xx.
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Chief Executive Officer
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