As used in this definition, “control” and its correlative uses “controlled” and “controlling” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities or voting interests, by contract or otherwise.“ Assumed Contracts ” means all distribution agreements, manufacturing agreements and other Contracts of the Company relating to the Business, except for those specifically identified as Excluded Assets pursuant to Section 2.2 hereof.“ Claim ” means any action, arbitration, audit, hearing, investigation, cause of action, litigation or suit (whether civil, criminal, administrative, regulatory, judicial or investigative, whether formal or informal, whether public or private).“ Closing Date ” means the date on which the Closing occurs, which shall be the third Business Day following the satisfaction or waiver of the conditions set forth in Section 6 and Section 7 of this Agreement or such other date as Buyer and Seller may agree.“ Company Debt ” means the aggregate indebtedness of the Company for borrowed money pursuant to all notes, credit facilities, loan agreements or arrangements of any kind including, without limitation, the Loan Documents.“ Company’s Financial Statements ” means the unaudited financial statements of the Company as of December 31, 2005 and for the year then ended, including a balance sheet and an income statement, and the Company’s Interim Financial Statements.“ Company’s Interim Financial Statements ” means the unaudited financial statements of the Company as of September 30, 2006 and for the nine months then ended, including a balance sheet and an income statement.“ Contract ” means any contract, agreement, Lease, obligation, promise, plan, commitment or other undertaking (whether written or oral and whether express or implied) to which the Company is a party or otherwise bound.“ Court Approval ” means the entry of an order, in form and substance satisfactory to Buyer in its sole discretion, of the United States Bankruptcy Court for the Southern District of New York approving the execution and delivery of this Agreement and the transactions contemplated hereby.“ Encumbrance ” means any charge, claim, interest, equitable interest, lien, option, pledge, security interest, mortgage, right of first option, right of first refusal, obligation or other restriction or encumbrance of any kind on title or transfer of any nature whatsoever.“ Governmental Authority ” shall mean (a) the United States of America, (b) any state, commonwealth, territory or possession of the United States of America and any political subdivision thereof (including counties, municipalities, provinces and parishes), (c) any foreign (as to the United States of America) sovereign entity and any political subdivision thereof, and (d) any court, quasi-governmental authority, tribunal, department, commission, board, bureau, agency, authority or instrumentality of any of the foregoing.“ Hazardous Substance ” means any substance regulated or governed under any Environmental Law, including, without limitation, any substance which is: (a) petroleum, asbestos or asbestos-containing material, or polychlorinated biphenyls; (b) defined, designated or listed as a “Hazardous Substance” pursuant to Sections 307 and 311 of the Clean Water Act, 33 U. Except for the Assumed Liabilities, the Company shall remain responsible for, and Buyer shall not directly or indirectly, assume, or in any way become liable or responsible for, any liability, obligation, debt or contingency of the Company, Seller, any Affiliate of the Company or Seller, or the Business of any type or nature, whether liquidated or unliquidated, known or unknown, actual or inchoate, accrued, contingent or otherwise, and whether arising from facts existing or events occurring prior to, on or after the date of this Agreement or the Closing, including, without limitation, those items identified on Schedule 2.3(b) attached hereto (collectively, the “ Excluded Liabilities ”). THE BUYER ACKNOWLEDGES AND AGREES THAT (A) THE SELLER MAKES NO REPRESENTATIONS OR WARRANTIES THAT ALL OR A PORTION OF THE PURCHASED ASSETS ARE MERCHANTABLE (IN THE SENSE OF AN IMPLIED WARRANTY OF MERCHANTABILITY UNDER THE UCC) OR FIT FOR A PARTICULAR PURPOSE, IN EACH CASE, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT; AND (B) THE SOLE REPRESENTATIONS AND WARRANTIES OF THE SELLER REGARDING THE PURCHASED ASSETS ARE THOSE SPECIFICALLY PROVIDED IN THIS AGREEMENT.(a) In consideration of the sale, transfer and delivery of the Purchased Assets to the Buyer and the other obligations and covenants of Seller made herein, at the Closing, Buyer shall (x) pay to Seller an aggregate amount in cash equal to ,000,000, (ii) “ Closing Date Working Capital ” shall mean the Current Assets of the Company as of the Closing Date minus the Current Liabilities of the Company as of the Closing Date (without giving effect to the consummation of the transactions contemplated by this Agreement).(iii) “ Current Assets ” shall mean the book value of those items identified as “Current Assets” on Schedule 2.5(b)(iii) attached hereto to the extent they are included in the Purchased Assets, calculated in accordance with GAAP.(iv) “ Current Liabilities ” shall mean the book value of those items identified as “Current Liabilities” on Schedule 2.5(b)(iv) attached hereto to the extent they are included in the Assumed Liabilities, calculated in accordance with GAAP.(c) The amount of the adjustment to the Purchase Price pursuant to this Section 2.5 shall, for the purposes of the payment to be made by Buyer at the Closing, be estimated in good faith by Seller after consultation with Buyer.
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrants knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.
The Loans and all other obligations of the Company to the Seller, howsoever created, arising or evidenced (collectively, the “ Obligations ”), are secured by, among other things, substantially all of the Company’s assets.
Seller represents that, as a result of continuing defaults by the Company in the repayment and performance of the Obligations and other liabilities under the Loan Documents, Seller has the right under Section 9-610 of the UCC to sell, lease, license or otherwise dispose of any or all of the collateral securing the Obligations. 6903(5).“ Intellectual Property ” means all intellectual property in which the Company has any right, title or interest (including a licensed right) and which is or has been used, exploited or commercialized by the Company in the conduct of the Business, including but not limited to the Company’s name, all fictitious business names and trade names, all registered and pendingtrademarks and service marks, and all trademark and service mark applications, all designs and logos indicating source and slogans and all goodwill related to the foregoing, all issued patents and reissues, divisions, continuations and extensions of such patents, patents pending and applications for patents, patent disclosures docketed, and inventions and discoveries whether patentable or unpatentable, all copyrights in both published and unpublished works of authorship whether or not registered, Internet addresses, content and domain names, and all know-how, trade secrets, confidential information, customer and supplier lists, software, technical information, data, proprietary formulae and business and marketing plans.“ knowledge ” (including any derivation thereof) means (a) with respect to Seller, (i) the actual knowledge of any particular fact or matter by Arthur Steinberg, the Seller’s sole manager, or (ii) the actual knowledge of any particular fact or matter by the Company’s President, Charles T.
On December 10, 2003, the Plan went effective with respect to the Funds and IBF Hotel.
Pursuant to oral no-action relief provided by the Office of Chief Counsel, Division of Corporate Finance of the Commission on August 12, 2003 (the No-Action Relief), the Company is submitting this Annual Report under cover of Form 10-K under SLCs former Commission file number.At least three days prior to the Closing Date, Seller shall deliver to Buyer a certificate executed by a duly authorized member of Seller (the “ Initial Adjustment Certificate ”) setting out Seller’s good faith estimate (the “ Working Capital Estimate ”) of Closing Date Working Capital and indicating in detail the basis for the estimate, including an estimate of the Current Assets and Current Liabilities as of the Closing Date and any resulting Working Capital Overage or Working Capital Underage.