1011-00005 · Meridian Consumer Brands LLC · Transaction Documents/Exhibits

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CONFIDENTIAL TREATMENT REQUESTED

ASSIGNMENT AND ASSUMPTION AGREEMENT

Draft — Exhibit [__] to Asset Purchase Agreement

Prepared by: Calderwood & Harkness LLP 599 Lexington Avenue, 36th Floor New York, NY 10022

Matter No.: 1011-00005

As of [●], 2022

DRAFT — FOR DISCUSSION PURPOSES ONLY

This form is attached as an exhibit to the Asset Purchase Agreement dated as of [●], 2022 (the "Purchase Agreement"), by and between Meridian Consumer Brands LLC and Briarwood Home Essentials, Inc. This document is a draft for discussion purposes only, has not been executed, and does not constitute a binding agreement. All terms remain subject to negotiation and revision.

ASSIGNMENT AND ASSUMPTION AGREEMENT

THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is made and entered into as of [●], 2022 (the "Closing Date," as defined in the Purchase Agreement referenced below), by and between:

BRIARWOOD HOME ESSENTIALS, INC., an Ohio corporation, with its principal office located at 1175 Creekside Drive, Suite 400, Columbus, OH 43215 (hereinafter referred to as "Assignor" or "Seller");

and

MERIDIAN CONSUMER BRANDS LLC, a Delaware limited liability company, with its principal office located at 440 Park Avenue South, 18th Floor, New York, NY 10016 (hereinafter referred to as "Assignee" or "Buyer").

Assignor and Assignee are each sometimes referred to herein individually as a "Party" and collectively as the "Parties."

RECITALS

WHEREAS, Assignor and Assignee have entered into that certain Asset Purchase Agreement by and between Meridian Consumer Brands LLC and Briarwood Home Essentials, Inc., dated as of [●], 2022 (as the same may be amended, restated, supplemented, or otherwise modified from time to time, the "Purchase Agreement"), pursuant to which Assignor has agreed to sell, transfer, assign, convey, and deliver to Assignee, and Assignee has agreed to purchase from Assignor, the Acquired Assets (as defined in the Purchase Agreement), which include, among other things, certain contracts, agreements, and other instruments related to Assignor's CleanLeaf and PureHaven consumer product lines (the "Product Lines");

WHEREAS, pursuant to the terms and conditions of the Purchase Agreement, Assignor has agreed to assign to Assignee, and Assignee has agreed to assume from Assignor, certain liabilities and obligations as specified herein and in the Purchase Agreement (the "Assumed Liabilities"), in connection with the sale and transfer of the Acquired Assets;

WHEREAS, this Agreement is being executed and delivered pursuant to Section [●] of the Purchase Agreement and constitutes a closing deliverable thereunder, and the execution and delivery of this Agreement is a condition to the consummation of the transactions contemplated by the Purchase Agreement; and

WHEREAS, capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Purchase Agreement.

NOW, THEREFORE, in consideration of the premises set forth above, the mutual covenants and agreements contained herein, the consummation of the transactions contemplated by the Purchase Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each Party, the Parties agree as follows:

ARTICLE I — DEFINITIONS

Section 1.1 Defined Terms. Capitalized terms used in this Agreement and not otherwise defined herein shall have the respective meanings ascribed to such terms in the Purchase Agreement. As used in this Agreement, the following terms shall have the meanings set forth below:

(a) "Acquired Assets" shall have the meaning ascribed to such term in the Purchase Agreement.

(b) "Assigned Contracts" means the twenty-three (23) customer contracts, supply agreements, distribution agreements, vendor agreements, and other material contracts listed on Schedule A hereto (which corresponds to the Schedule of Assigned Contracts attached to the Purchase Agreement), including contracts with major retailers and suppliers related to the CleanLeaf home cleaning product line and the PureHaven personal care product line, in each case as more fully described on Schedule A.

(c) "Assumed Liabilities" shall have the meaning ascribed to such term in the Purchase Agreement. For the avoidance of doubt, the Assumed Liabilities include, without limitation: (i) trade payables related to the Product Lines (estimated at Four Million Two Hundred Thousand Dollars ($4,200,000) as of June 30, 2022); (ii) accrued product warranty obligations related to the Product Lines (estimated at Six Hundred Twenty Thousand Dollars ($620,000) as of June 30, 2022); and (iii) all obligations and liabilities arising under or relating to the Assigned Contracts, in each case to the extent such obligations or liabilities arise or are required to be performed on or after the Closing Date.

(d) "Closing Date" shall have the meaning ascribed to such term in the Purchase Agreement.

(e) "Enforceability Exceptions" means (i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other similar laws relating to or affecting the enforcement of creditors' rights generally, and (ii) general principles of equity, including principles of commercial reasonableness, good faith, and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).

(f) "Excluded Assets" shall have the meaning ascribed to such term in the Purchase Agreement. For reference purposes, the Excluded Assets include, without limitation: (i) all assets, properties, rights, and interests of Assignor related to Assignor's Commercial Janitorial Services Division; (ii) the corporate headquarters lease at 1175 Creekside Drive, Columbus, OH 43215; (iii) all cash, cash equivalents, bank accounts, and marketable securities of Assignor; and (iv) all Tax refunds, credits, and overpayments attributable to pre-Closing periods.

(g) "Excluded Liabilities" shall have the meaning ascribed to such term in the Purchase Agreement.

(h) "Purchase Agreement" means the Asset Purchase Agreement by and between Meridian Consumer Brands LLC and Briarwood Home Essentials, Inc., dated as of [●], 2022, as the same may be amended, restated, supplemented, or otherwise modified from time to time in accordance with its terms.

(i) "Required Consents" means the consents, approvals, authorizations, or waivers of any third party (including any counterparty to any Assigned Contract) that are required in connection with the assignment of any Assigned Contract from Assignor to Assignee pursuant to this Agreement. Seven (7) of the twenty-three (23) Assigned Contracts listed on Schedule A contain change-of-control, anti-assignment, or assignment consent provisions requiring counterparty consent. Such contracts are specifically identified and listed on Schedule B hereto.

Section 1.2 Rules of Construction. The rules of construction and interpretation set forth in Section [●] of the Purchase Agreement shall apply to this Agreement, mutatis mutandis, as if set forth herein in full. Without limiting the foregoing, references to "Sections," "Articles," and "Schedules" are to sections, articles, and schedules of this Agreement unless otherwise expressly stated. The words "herein," "hereof," "hereunder," and words of similar import shall refer to this Agreement as a whole and not to any particular Section, Article, or Schedule. The use of the word "including" or any variation thereof shall mean "including, without limitation."

ARTICLE II — ASSIGNMENT OF ASSIGNED CONTRACTS AND RIGHTS

Section 2.1 Assignment of Contracts. Effective as of the Closing Date, Assignor hereby irrevocably assigns, transfers, conveys, and delivers to Assignee all of Assignor's right, title, and interest in, to, and under each of the Assigned Contracts listed on Schedule A hereto, consisting of twenty-three (23) customer contracts and other material contracts related to the CleanLeaf and PureHaven product lines. Such assignment includes, without limitation, all rights, benefits, privileges, and interests of Assignor arising under or with respect to the Assigned Contracts, including all claims, counterclaims, causes of action, choses in action, rights of recovery, rights of indemnification, and rights of set-off that Assignor may have against any counterparty to any Assigned Contract or any other Person arising under or with respect to the Assigned Contracts. From and after the Closing Date, Assignee shall be entitled to exercise all of the rights and remedies of Assignor under and with respect to the Assigned Contracts to the same extent and in the same manner as Assignor would have been entitled to exercise such rights and remedies absent this Agreement, subject to the terms and conditions of the Assigned Contracts and this Agreement.

Section 2.2 Assignment of Other Rights. In addition to the Assigned Contracts, effective as of the Closing Date, Assignor hereby irrevocably assigns, transfers, conveys, and delivers to Assignee all of Assignor's right, title, and interest in and to all other agreements, instruments, permits, licenses, authorizations, and approvals that constitute part of the Acquired Assets under the Purchase Agreement, to the extent such agreements, instruments, permits, licenses, authorizations, and approvals are assignable by their terms or under applicable law (but specifically excluding the Excluded Assets in all cases). Without limiting the generality of the foregoing, such assignment includes:

(a) all supply agreements with vendors and suppliers of raw materials and components used in the manufacture of the CleanLeaf and PureHaven product lines;

(b) all distribution agreements related to the distribution and sale of products under the CleanLeaf and PureHaven brands;

(d) all vendor agreements and procurement contracts related to the Product Lines;

(e) all governmental permits, licenses, approvals, and authorizations related to the operation of the Product Lines, to the extent transferable under applicable law; and

(f) all other agreements, instruments, and arrangements related to the Product Lines that are included in the Acquired Assets under the Purchase Agreement;

in each case, solely to the extent related to the CleanLeaf and PureHaven product lines and included in the Acquired Assets as defined in the Purchase Agreement. For the avoidance of doubt, this Section 2.2 does not assign, transfer, or convey any asset, agreement, instrument, permit, license, or authorization that constitutes an Excluded Asset under the Purchase Agreement, including any assets, agreements, or instruments related to Assignor's Commercial Janitorial Services Division.

Section 2.3 Consents to Assignment.

(a) Notwithstanding anything to the contrary contained in this Agreement, to the extent that any Assigned Contract or other agreement, instrument, permit, license, or authorization being assigned hereunder is not assignable or transferable without the consent, approval, waiver, or authorization of any third party (including any counterparty thereto, any governmental authority, or any other Person), and such consent, approval, waiver, or authorization has not been obtained as of the Closing Date, this Agreement shall not constitute an assignment or attempted assignment of such Assigned Contract or other agreement, instrument, permit, license, or authorization if and to the extent that such assignment or attempted assignment would constitute a breach or violation thereof, would be unlawful, or would give rise to any right of termination, modification, amendment, acceleration, cancellation, or any other adverse consequence thereunder. The Assigned Contracts for which Required Consents have not been obtained as of the Closing Date include the seven (7) Assigned Contracts identified on Schedule B hereto as requiring third-party consent under change-of-control, anti-assignment, or assignment consent provisions contained therein.

(b) Following the Closing Date, Assignor and Assignee shall use commercially reasonable efforts, and shall cooperate with each other, to obtain all Required Consents as promptly as practicable, in accordance with Section [●] of the Purchase Agreement. Such commercially reasonable efforts shall include the preparation and delivery of consent request letters, personal outreach to counterparties, and such other actions as may be reasonably requested by Assignee; provided, however, that neither Party shall be required to pay any consideration, make any concession, or agree to any modification of the terms of any Assigned Contract in order to obtain any Required Consent, unless otherwise agreed by the Parties in writing.

(c) Pending the receipt of any Required Consent with respect to any Assigned Contract or other agreement, instrument, permit, license, or authorization, Assignor shall cooperate with Assignee in any mutually agreeable, reasonable, and lawful arrangement designed to provide to Assignee the economic and operational benefits of the applicable Assigned Contract or other agreement, instrument, permit, license, or authorization, including by means of subcontracting, sublicensing, subleasing, or any other arrangement as may be agreed upon by the Parties. In connection with any such arrangement, Assignee shall perform and discharge the obligations of Assignor under the applicable Assigned Contract or other agreement, instrument, permit, license, or authorization at Assignee's sole cost and expense and shall indemnify and hold harmless Assignor from and against any losses, liabilities, or costs arising from Assignee's performance (or failure to perform) thereunder. Upon receipt of any Required Consent following the Closing Date, the assignment of the applicable Assigned Contract or other agreement, instrument, permit, license, or authorization shall be deemed to have been automatically effected as of the Closing Date (or, if later, as of the date on which such Required Consent is obtained), without the need for any further action by either Party, except to the extent that any additional documentation is reasonably required.

Section 2.4 Lease Assignment.

(a) The Parties acknowledge and agree that the lease for the manufacturing facility located at 2800 Industrial Parkway, Marysville, OH 43040 (the "Marysville Lease"), pursuant to which Assignor leases certain premises from Buckeye Industrial Properties LLC, an Ohio limited liability company, having its principal office at 77 East Nationwide Boulevard, Suite 200, Columbus, OH 43215 ("Landlord"), is included among the Assigned Contracts and is subject to a landlord consent requirement under the terms of the Marysville Lease. A written request for landlord consent to the assignment of the Marysville Lease was submitted to Landlord on October 7, 2022. As of the date of this draft, no response has been received from Landlord with respect to such consent request.

(b) The assignment of the Marysville Lease is governed by Section [●] of the Purchase Agreement. To the extent that obtaining landlord consent for the assignment of the Marysville Lease is a condition to the Closing under the Purchase Agreement, such condition may be waived by Buyer in its sole discretion. If such condition is waived and the Closing occurs without landlord consent having been obtained, the Marysville Lease shall be subject to the interim arrangement provisions set forth in Section 2.3 of this Agreement and the corresponding provisions of the Purchase Agreement, and the Parties shall continue to use commercially reasonable efforts to obtain such consent following the Closing Date.

(c) For the avoidance of doubt, the owned facility located at 500 Commerce Boulevard, West Jefferson, OH 43162 (the "West Jefferson Distribution Center") is being conveyed to Assignee pursuant to the Bill of Sale and by special warranty deed as part of the Acquired Assets, and is not subject to this Section 2.4 or to any assignment consent requirement.

ARTICLE III — ASSUMPTION OF ASSUMED LIABILITIES

Section 3.1 Assumption. Effective as of the Closing Date, Assignee hereby irrevocably assumes and agrees to pay, perform, satisfy, and discharge when due all of the Assumed Liabilities, including, without limitation, the following:

(a) all trade payables and accounts payable of Assignor related to the CleanLeaf and PureHaven product lines, as set forth on the Schedule of Assumed Liabilities to the Purchase Agreement (estimated at Four Million Two Hundred Thousand Dollars ($4,200,000) as of June 30, 2022);

(b) all accrued product warranty obligations of Assignor related to the CleanLeaf and PureHaven product lines, as set forth on the Schedule of Assumed Liabilities to the Purchase Agreement (estimated at Six Hundred Twenty Thousand Dollars ($620,000) as of June 30, 2022); and

(c) all obligations, liabilities, and commitments arising under or relating to the Assigned Contracts, in each case to the extent such obligations, liabilities, or commitments arise or are required to be performed on or after the Closing Date.

The specific Assumed Liabilities are as set forth in detail on the Schedule of Assumed Liabilities attached to the Purchase Agreement and as summarized on Schedule C hereto. Assignee's assumption of the Assumed Liabilities shall be for the benefit of Assignor and the counterparties to the Assigned Contracts and shall be absolute and unconditional, subject only to any defenses, counterclaims, rights of set-off, or other rights available to Assignor under the applicable Assigned Contract as of the Closing Date.

Section 3.2 Excluded Liabilities. Notwithstanding anything to the contrary contained in this Agreement, Assignee does not assume and shall not be deemed to have assumed, and Assignor shall retain and remain solely responsible for, all Excluded Liabilities (as defined in the Purchase Agreement). The Excluded Liabilities include, without limitation, the following:

(a) all liabilities and obligations arising out of, relating to, or in connection with the Excluded Assets, including, without limitation, all liabilities and obligations related to or arising from the operation of Assignor's Commercial Janitorial Services Division;

(b) all liabilities for Taxes (as defined in the Purchase Agreement) of Assignor or otherwise attributable to the Acquired Assets or the Product Lines for any taxable period (or portion thereof) ending on or before the Closing Date;

(c) all liabilities arising from any breach by Assignor of any Assigned Contract or any other agreement, instrument, or obligation prior to the Closing Date, or any default by Assignor thereunder occurring prior to the Closing Date;

(d) all product liability claims, personal injury claims, property damage claims, and other tort claims arising from or related to products manufactured, distributed, marketed, or sold by Assignor prior to the Closing Date;

(e) all liabilities arising from any litigation, arbitration, investigation, or other legal proceeding pending as of the Closing Date or arising from events occurring prior to the Closing Date, except to the extent expressly assumed as Assumed Liabilities under the Purchase Agreement;

(f) all liabilities related to current or former employees of Assignor arising prior to the Closing Date, including liabilities for wages, salaries, bonuses, benefits, severance, and WARN Act obligations; and

(g) all other liabilities and obligations of Assignor that are not expressly assumed by Assignee herein or in the Purchase Agreement.

Assignor shall remain solely and exclusively responsible for, and shall indemnify and hold harmless Assignee from and against, all Excluded Liabilities, in accordance with the terms of the Purchase Agreement.

Section 3.3 Indemnification Cross-Reference. The Parties' respective indemnification obligations with respect to the Assumed Liabilities, the Excluded Liabilities, and any other matters arising under or in connection with this Agreement are governed exclusively by Article [●] of the Purchase Agreement. Without limiting the foregoing, the following terms of the Purchase Agreement shall apply to any indemnification claims arising in connection with this Agreement:

(a) the aggregate indemnification cap of Thirty-Three Million Two Hundred Fifty Thousand Dollars ($33,250,000), which represents thirty-five percent (35%) of the aggregate purchase price of Ninety-Five Million Dollars ($95,000,000);

(b) the tipping basket threshold of Nine Hundred Fifty Thousand Dollars ($950,000), representing one percent (1%) of the aggregate purchase price, below which no indemnification obligations shall arise (and upon which threshold being exceeded, indemnification shall be available from the first dollar of losses);

(c) the twenty-four (24) month survival period applicable to general representations and warranties, commencing on the Closing Date; and

(d) the escrow holdback of Nine Million Five Hundred Thousand Dollars ($9,500,000), held by Atlantic Fiduciary Trust Company as escrow agent pursuant to the terms of the Escrow Agreement.

Nothing in this Agreement is intended to, or shall be construed to, expand, limit, reduce, or otherwise modify the indemnification provisions of the Purchase Agreement. All indemnification claims arising in connection with this Agreement shall be subject to the limitations, procedures, and other terms set forth in Article [●] of the Purchase Agreement.

ARTICLE IV — REPRESENTATIONS AND WARRANTIES

Section 4.1 Representations and Warranties of Assignor. Assignor hereby represents and warrants to Assignee as follows, as of the date hereof and as of the Closing Date:

(a) Organization and Good Standing. Assignor is a corporation duly organized, validly existing, and in good standing under the laws of the State of Ohio, and has all requisite corporate power and authority to own, lease, and operate its properties and assets and to carry on its business as presently conducted.

(b) Authority. Assignor has all requisite corporate power and authority to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Agreement by Assignor do not and will not (i) violate, conflict with, or result in a breach of any provision of the articles of incorporation or bylaws of Assignor, (ii) violate, conflict with, or result in a breach of any law, rule, regulation, order, judgment, or decree applicable to Assignor, or (iii) violate, conflict with, result in a breach of, constitute a default under, or give rise to any right of termination, amendment, acceleration, or cancellation under any material agreement or instrument to which Assignor is a party or by which Assignor or any of its assets or properties is bound, except as would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on Assignor's ability to consummate the transactions contemplated hereby.

(c) Authorization. The execution, delivery, and performance of this Agreement by Assignor and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of Assignor, including, without limitation, the approval of Malcolm Greer in his capacity as the sole shareholder and President of Assignor. No other corporate proceedings on the part of Assignor are necessary to authorize the execution, delivery, and performance of this Agreement or the consummation of the transactions contemplated hereby.

(d) Enforceability. This Agreement has been duly executed and delivered by Assignor and constitutes the legal, valid, and binding obligation of Assignor, enforceable against Assignor in accordance with its terms, subject to the Enforceability Exceptions.

(e) No Prior Assignment or Encumbrance. Assignor has not previously assigned, transferred, pledged, encumbered, or otherwise disposed of any of the Assigned Contracts or any of its rights, interests, or obligations thereunder, other than Permitted Encumbrances as set forth in the Purchase Agreement. Assignor has good and valid title to, or a valid and enforceable leasehold interest in, each of the Assigned Contracts, free and clear of all liens, claims, encumbrances, and other restrictions, other than Permitted Encumbrances.

(f) Validity of Assigned Contracts. To Assignor's knowledge, as of the date hereof and as of the Closing Date, each of the Assigned Contracts is in full force and effect and constitutes a legal, valid, and binding obligation of Assignor and, to Assignor's knowledge, of the other parties thereto. Assignor is not in material breach or default under any Assigned Contract, and, to Assignor's knowledge, no event has occurred that, with the giving of notice or the lapse of time or both, would constitute a material breach or default by Assignor under any Assigned Contract. To Assignor's knowledge, no counterparty to any Assigned Contract is in material breach or default thereunder.

Section 4.2 Representations and Warranties of Assignee. Assignee hereby represents and warrants to Assignor as follows, as of the date hereof and as of the Closing Date:

(a) Organization and Good Standing. Assignee is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware, and has all requisite limited liability company power and authority to own, lease, and operate its properties and assets and to carry on its business as presently conducted.

(b) Authority. Assignee has all requisite limited liability company power and authority to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Agreement by Assignee do not and will not (i) violate, conflict with, or result in a breach of any provision of the certificate of formation or limited liability company agreement of Assignee, (ii) violate, conflict with, or result in a breach of any law, rule, regulation, order, judgment, or decree applicable to Assignee, or (iii) violate, conflict with, result in a breach of, constitute a default under, or give rise to any right of termination, amendment, acceleration, or cancellation under any material agreement or instrument to which Assignee is a party or by which Assignee or any of its assets or properties is bound, except as would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on Assignee's ability to consummate the transactions contemplated hereby.

(c) Authorization. The execution, delivery, and performance of this Agreement by Assignee and the consummation of the transactions contemplated hereby have been duly authorized by all necessary limited liability company action on the part of Assignee. No other proceedings on the part of Assignee or its members are necessary to authorize the execution, delivery, and performance of this Agreement or the consummation of the transactions contemplated hereby.

(d) Enforceability. This Agreement has been duly executed and delivered by Assignee and constitutes the legal, valid, and binding obligation of Assignee, enforceable against Assignee in accordance with its terms, subject to the Enforceability Exceptions.

ARTICLE V — EMPLOYEES

Section 5.1 Transferring Employees. The treatment of the one hundred eighty-six (186) employees of Assignor who are associated with the CleanLeaf and PureHaven product lines (the "Business Employees") is governed by Section [●] of the Purchase Agreement. Nothing in this Agreement shall create, or be deemed to create, any obligation on the part of Assignee to offer employment to, hire, or retain any employee of Assignor, whether or not such employee is a Business Employee. Any obligations of Assignee with respect to the offer of employment to, or the terms and conditions of employment of, any Business Employee are governed exclusively by the Purchase Agreement and the individual offer letters issued by Assignee in connection therewith (if any).

Section 5.2 Employment Agreements. This Agreement does not assign, transfer, or convey any employment agreement, consulting agreement, or independent contractor agreement to which Assignor is a party, except to the extent that such agreement is expressly listed on Schedule A hereto as an Assigned Contract. Neither Assignor nor Assignee shall have any obligation under this Agreement with respect to any employment-related agreement that is not an Assigned Contract.

Section 5.3 No Third-Party Beneficiary Rights. Nothing in this Article V shall confer upon any employee of Assignor (whether or not a Business Employee) any rights or remedies of any kind or nature, including any right to employment or continued employment with Assignee, any right to any particular term or condition of employment, or any third-party beneficiary rights with respect to this Agreement.

ARTICLE VI — FURTHER ASSURANCES

Section 6.1 Cooperation. Each Party shall, from time to time after the Closing Date, at the reasonable written request of the other Party and without further consideration (other than the reimbursement of reasonable out-of-pocket expenses), execute and deliver such further instruments of assignment, transfer, conveyance, assumption, and confirmation and take such further actions as may be reasonably necessary or desirable to effectuate, confirm, or evidence the assignment and assumption contemplated by this Agreement. Without limiting the generality of the foregoing:

(a) Assignor shall cooperate with Assignee in connection with obtaining any Required Consents that have not been obtained as of the Closing Date, including the seven (7) customer contracts identified on Schedule B hereto as requiring third-party assignment consent and the landlord consent from Buckeye Industrial Properties LLC with respect to the Marysville Lease described in Section 2.4 of this Agreement;

(b) Assignor shall execute and deliver such instruments of assignment, bills of sale, endorsements, and other documents as Assignee may reasonably request to vest in Assignee good and valid title to the Assigned Contracts and the other Acquired Assets assigned hereunder, free and clear of all liens and encumbrances other than Permitted Encumbrances; and

(c) Assignee shall execute and deliver such instruments of assumption and other documents as Assignor may reasonably request to evidence and confirm the assumption by Assignee of the Assumed Liabilities.

Section 6.2 Misdirected Payments and Communications. If, at any time following the Closing Date, either Party receives any payment, invoice, correspondence, notice, demand, or other communication that properly belongs to the other Party under or with respect to any Assigned Contract or any other agreement, instrument, or arrangement assigned or assumed hereunder, such Party shall promptly (and in any event within five (5) Business Days of receipt) notify the other Party and forward or remit the same to the other Party, together with any accompanying documentation. Each Party agrees to hold any such payment, correspondence, or communication in trust for the benefit of the other Party pending such forwarding or remittance. Any payment received by Assignor after the Closing Date with respect to any Assigned Contract shall be deemed to be held in trust for, and shall be promptly remitted to, Assignee.

ARTICLE VII — MISCELLANEOUS PROVISIONS

Section 7.1 Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York, without giving effect to any choice of law or conflict of law rules, principles, or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York, consistent with the governing law provisions of the Purchase Agreement. Each Party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts located in the Borough of Manhattan, City of New York, State of New York, for the adjudication of any dispute arising out of or relating to this Agreement, and each Party hereby irrevocably waives, and agrees not to assert, any claim that it is not personally subject to the jurisdiction of any such court or that any such action has been brought in an inconvenient forum.

Section 7.2 Relationship to Purchase Agreement. This Agreement is entered into pursuant to, and is subject to, the terms and conditions of the Purchase Agreement. This Agreement is intended to effectuate and evidence the assignment and assumption of the Assigned Contracts and the Assumed Liabilities contemplated by the Purchase Agreement. In the event of any conflict, inconsistency, or ambiguity between the terms and provisions of this Agreement and the terms and provisions of the Purchase Agreement, the terms and provisions of the Purchase Agreement shall govern, control, and prevail in all respects. Nothing in this Agreement is intended to, or shall be construed to, expand, limit, restrict, modify, supersede, or otherwise alter the rights, obligations, representations, warranties, covenants, conditions, or indemnification provisions of any Party under the Purchase Agreement. Without limiting the foregoing, the representations, warranties, covenants, and indemnification provisions of the Purchase Agreement (including the indemnification cap of Thirty-Three Million Two Hundred Fifty Thousand Dollars ($33,250,000), the tipping basket of Nine Hundred Fifty Thousand Dollars ($950,000), and the twenty-four (24) month survival period for general representations and warranties) shall govern and control any and all claims arising in connection with this Agreement.

Section 7.3 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns. Neither Party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party, except as expressly permitted by the Purchase Agreement.

Section 7.4 Amendment and Waiver.

(a) This Agreement may not be amended, modified, supplemented, or restated except by a written instrument duly executed by both Parties hereto.

(b) No waiver of any provision of this Agreement, or of any breach or default hereunder, shall be effective unless set forth in a written instrument signed by the Party against whom such waiver is sought to be enforced. No waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), nor shall any waiver constitute a continuing waiver unless expressly so provided.

Section 7.5 Entire Agreement. This Agreement, together with the Purchase Agreement and the other Transaction Documents (as defined in the Purchase Agreement), including the Bill of Sale, the intellectual Property Assignment Agreement, the Transition Services Agreement, the Escrow Agreement, and the Non-Competition and Non-Solicitation Agreement, and the Schedules and Exhibits thereto, constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, negotiations, representations, and warranties, whether written or oral, with respect to the subject matter hereof.

Section 7.6 Severability. If any provision of this Agreement, or the application of any such provision to any Person or circumstance, is held invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and the remaining provisions of this Agreement shall continue in full force and effect. In such event, the Parties shall negotiate in good faith to replace the invalid, illegal, or unenforceable provision with a valid, legal, and enforceable provision that, to the greatest extent possible, achieves the economic, business, and other purposes of the invalid, illegal, or unenforceable provision.

Section 7.7 Counterparts and Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument. Signatures transmitted by facsimile or by electronic means (including by portable document format (PDF) or any electronic signature platform complying with the U.S. Federal ESIGN Act or similar applicable state law) shall be deemed original signatures for all purposes and shall be sufficient to bind the Party whose name and signature appear thereon.

Section 7.8 Notices. All notices, requests, demands, consents, waivers, and other communications required or permitted to be given under this Agreement shall be in writing and shall be delivered in accordance with the notice provisions of the Purchase Agreement, addressed as follows (or to such other address as a Party may designate by written notice to the other Party in accordance herewith):

If to Assignee:

Meridian Consumer Brands LLC 440 Park Avenue South, 18th Floor New York, NY 10016

Attention: Diana Ressler, General Counsel

Telephone: [●]

Email: [●]

with a copy (which shall not constitute notice) to:

Calderwood & Harkness LLP 599 Lexington Avenue, 36th Floor New York, NY 10022

Attention: Sandra Tung

Telephone: [●]

Email: [●]

If to Assignor:

Briarwood Home Essentials, Inc. 1175 Creekside Drive, Suite 400 Columbus, OH 43215

Attention: Malcolm Greer, President

Telephone: [●]

Email: [●]

with a copy (which shall not constitute notice) to:

Caldwell, Pruitt & Shaw LLP 41 South High Street, Suite 2800 Columbus, OH 43215

Attention: Rachel Underwood

Telephone: [●]

Email: [●]

Section 7.9 Third-Party Beneficiaries. Except as expressly provided in the Purchase Agreement, nothing in this Agreement, express or implied, is intended to, or shall be construed to, confer upon any Person other than the Parties hereto and their respective successors and permitted assigns any right, benefit, remedy, claim, or cause of action of any kind or nature under or by reason of this Agreement.

Section 7.10 Headings. The article, section, and other headings contained in this Agreement are for convenience of reference only and shall not affect the meaning, interpretation, or construction of this Agreement.

IN WITNESS WHEREOF, the Parties have caused this Assignment and Assumption Agreement to be duly executed and delivered as of the date first written above.

ASSIGNOR:

BRIARWOOD HOME ESSENTIALS, INC., an Ohio corporation

By: ________

Name: Malcolm Greer

Title: President

Date: ________

ASSIGNEE:

MERIDIAN CONSUMER BRANDS LLC, a Delaware limited liability company

By: ________

Name: Gareth Holloway

Title: CEO & Managing Member

Date: ________

SCHEDULE A to Assignment and Assumption Agreement

List of Assigned Contracts

The following table sets forth the twenty-three (23) customer contracts and other material contracts being assigned from Briarwood Home Essentials, Inc. (Assignor) to Meridian Consumer Brands LLC (Assignee) pursuant to the Assignment and Assumption Agreement to which this Schedule A is attached. This list corresponds to the Schedule of Assigned Contracts attached to the Purchase Agreement.

Note: Specific counterparty names, contract dates, and consent status information to be populated from the Schedule of Assigned Contracts to the Purchase Agreement. Seven (7) of the twenty-three (23) contracts listed above contain change-of-control or assignment consent provisions requiring counterparty consent prior to or following assignment. Such contracts are specifically identified and cross-referenced on Schedule B hereto. All contracts listed above relate exclusively to the CleanLeaf and PureHaven product lines.

SCHEDULE B to Assignment and Assumption Agreement

Assigned Contracts Requiring Third-Party Consent

The following table identifies the seven (7) Assigned Contracts (out of the twenty-three (23) Assigned Contracts listed on Schedule A) that contain change-of-control, anti-assignment, or assignment consent provisions requiring the consent, approval, waiver, or authorization of a third party (the counterparty thereto) in connection with the assignment of such Assigned Contract from Assignor to Assignee.

Note: Consent request form letters for items 1 through 6 above were prepared by Calderwood & Harkness LLP, dated October 12, 2022, for use in requesting Required Consents from the counterparties to the applicable Assigned Contracts. The landlord consent request for item 7 (Buckeye Industrial Properties LLC — Marysville Lease) was submitted on October 7, 2022. All consent requests remain pending as of the date of this draft. Specific counterparty names, Schedule A cross-reference numbers, and section references for the relevant consent provisions to be confirmed and inserted from the final Schedule of Assigned Contracts to the Purchase Agreement.

SCHEDULE C to Assignment and Assumption Agreement

Assumed Liabilities

The following is a summary of the liabilities being assumed by Assignee (Meridian Consumer Brands LLC) pursuant to the Assignment and Assumption Agreement to which this Schedule C is attached and the Purchase Agreement. This schedule is a summary only and is cross-referenced to, and qualified in its entirety by, the Schedule of Assumed Liabilities attached to the Purchase Agreement.

Note: The amounts set forth above for categories (a) and (b) are estimates as of the reference date of June 30, 2022, and are subject to adjustment. Final amounts for each category of Assumed Liabilities will be determined at or prior to the Closing Date in accordance with the adjustment and true-up procedures set forth in the Purchase Agreement, including the working capital adjustment mechanism. The liabilities assumed under category (c) are ongoing contractual obligations and are not separately quantified as of the date of this draft. All Assumed Liabilities are as defined in, and subject to the terms and conditions of, the Purchase Agreement. This schedule does not include, and Assignee does not assume, any Excluded Liabilities (as defined in the Purchase Agreement).

[Remainder of Page Intentionally Left Blank]

No.	Counterparty Name	Description / Type	Date of Contract	Third-Party Consent Required (Y/N)	Consent Status
1	[Counterparty Name]	Customer Supply Agreement (CleanLeaf)	[Date]	[Y/N]	[Status]
2	[Counterparty Name]	Customer Supply Agreement (CleanLeaf)	[Date]	[Y/N]	[Status]
3	[Counterparty Name]	Customer Supply Agreement (PureHaven)	[Date]	[Y/N]	[Status]
4	[Counterparty Name]	Distribution Agreement (CleanLeaf)	[Date]	[Y/N]	[Status]
5	[Counterparty Name]	Distribution Agreement (PureHaven)	[Date]	[Y/N]	[Status]
6	[Counterparty Name]	Customer Supply Agreement (CleanLeaf)	[Date]	[Y/N]	[Status]
7	[Counterparty Name]	Vendor Supply Agreement (CleanLeaf/PureHaven)	[Date]	[Y/N]	[Status]
8	[Counterparty Name]	Customer Supply Agreement (PureHaven)	[Date]	[Y/N]	[Status]
9	[Counterparty Name]	Distribution Agreement (CleanLeaf/PureHaven)	[Date]	[Y/N]	[Status]
10	[Counterparty Name]	Customer Supply Agreement (CleanLeaf)	[Date]	[Y/N]	[Status]
11	[Counterparty Name]	Customer Supply Agreement (PureHaven)	[Date]	[Y/N]	[Status]
12	[Counterparty Name]	Vendor Supply Agreement (CleanLeaf)	[Date]	[Y/N]	[Status]
13	[Counterparty Name]	Co-Manufacturing Agreement (PureHaven)	[Date]	[Y/N]	[Status]
14	[Counterparty Name]	Customer Supply Agreement (CleanLeaf/PureHaven)	[Date]	[Y/N]	[Status]
15	[Counterparty Name]	Lease – 2800 Industrial Parkway, Marysville, OH (Manufacturing Facility)	[Date]	Y	Pending
16	[Counterparty Name]	Customer Supply Agreement (CleanLeaf)	[Date]	[Y/N]	[Status]
17	[Counterparty Name]	Customer Supply Agreement (PureHaven)	[Date]	[Y/N]	[Status]
18	[Counterparty Name]	Procurement Agreement (CleanLeaf/PureHaven)	[Date]	[Y/N]	[Status]
19	[Counterparty Name]	Customer Supply Agreement (CleanLeaf)	[Date]	[Y/N]	[Status]
20	[Counterparty Name]	Customer Supply Agreement (PureHaven)	[Date]	[Y/N]	[Status]
21	[Counterparty Name]	Distribution Agreement (PureHaven)	[Date]	[Y/N]	[Status]
22	[Counterparty Name]	Customer Supply Agreement (CleanLeaf/PureHaven)	[Date]	[Y/N]	[Status]
23	[Counterparty Name]	Vendor Supply Agreement (PureHaven)	[Date]	[Y/N]	[Status]
No.	Schedule A Ref. No.	Counterparty Name	Relevant Consent Provision	Date Consent Requested	Consent Obtained (Y/N/Pending)

1	[●]	[Counterparty Name]	Section [●] (Assignment / Change of Control)	October 12, 2022	Pending
2	[●]	[Counterparty Name]	Section [●] (Assignment Restriction)	October 12, 2022	Pending
3	[●]	[Counterparty Name]	Section [●] (Change of Control)	October 12, 2022	Pending
4	[●]	[Counterparty Name]	Section [●] (Assignment Consent Required)	October 12, 2022	Pending
5	[●]	[Counterparty Name]	Section [●] (Anti-Assignment)	October 12, 2022	Pending
6	[●]	[Counterparty Name]	Section [●] (Assignment / Change of Control)	October 12, 2022	Pending
7	15	Buckeye Industrial Properties LLC	Section [●] (Landlord Consent to Assignment)	October 7, 2022	Pending
Category	Description	Estimated Amount (as of June 30, 2022)
(a) Trade Payables	Trade payables and accounts payable related to the CleanLeaf and PureHaven product lines, including amounts owed to vendors, suppliers, and service providers for goods and services received in connection with the Product Lines	$4,200,000
(b) Product Warranty Obligations	Accrued product warranty obligations and reserves related to products sold under the CleanLeaf and PureHaven brands, including estimated costs of product returns, replacements, and repairs	$620,000
(c) Post-Closing Contract Obligations	All obligations, liabilities, and commitments arising under or relating to the Assigned Contracts listed on Schedule A hereto, in each case to the extent such obligations, liabilities, or commitments arise or are required to be performed on or after the Closing Date	To be determined at Closing

CONFIDENTIAL TREATMENT REQUESTED
ASSIGNMENT AND ASSUMPTION AGREEMENT
Draft — Exhibit [__] to Asset Purchase Agreement
Prepared by: Calderwood & Harkness LLP 599 Lexington Avenue, 36th Floor New York, NY 10022
Matter No.: 1011-00005
As of [●], 2022
DRAFT — FOR DISCUSSION PURPOSES ONLY
This form is attached as an exhibit to the Asset Purchase Agreement dated as of [●], 2022 (the "Purchase Agreement"), by and between Meridian Consumer Brands LLC and Briarwood Home Essentials, Inc. This document is a draft for discussion purposes only, has not been executed, and does not constitute a binding agreement. All terms remain subject to negotiation and revision.
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is made and entered into as of [●], 2022 (the "Closing Date," as defined in the Purchase Agreement referenced below), by and between:
BRIARWOOD HOME ESSENTIALS, INC., an Ohio corporation, with its principal office located at 1175 Creekside Drive, Suite 400, Columbus, OH 43215 (hereinafter referred to as "Assignor" or "Seller");
and
MERIDIAN CONSUMER BRANDS LLC, a Delaware limited liability company, with its principal office located at 440 Park Avenue South, 18th Floor, New York, NY 10016 (hereinafter referred to as "Assignee" or "Buyer").
Assignor and Assignee are each sometimes referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, Assignor and Assignee have entered into that certain Asset Purchase Agreement by and between Meridian Consumer Brands LLC and Briarwood Home Essentials, Inc., dated as of [●], 2022 (as the same may be amended, restated, supplemented, or otherwise modified from time to time, the "Purchase Agreement"), pursuant to which Assignor has agreed to sell, transfer, assign, convey, and deliver to Assignee, and Assignee has agreed to purchase from Assignor, the Acquired Assets (as defined in the Purchase Agreement), which include, among other things, certain contracts, agreements, and other instruments related to Assignor's CleanLeaf and PureHaven consumer product lines (the "Product Lines");
WHEREAS, pursuant to the terms and conditions of the Purchase Agreement, Assignor has agreed to assign to Assignee, and Assignee has agreed to assume from Assignor, certain liabilities and obligations as specified herein and in the Purchase Agreement (the "Assumed Liabilities"), in connection with the sale and transfer of the Acquired Assets;
WHEREAS, this Agreement is being executed and delivered pursuant to Section [●] of the Purchase Agreement and constitutes a closing deliverable thereunder, and the execution and delivery of this Agreement is a condition to the consummation of the transactions contemplated by the Purchase Agreement; and
WHEREAS, capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Purchase Agreement.
NOW, THEREFORE, in consideration of the premises set forth above, the mutual covenants and agreements contained herein, the consummation of the transactions contemplated by the Purchase Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each Party, the Parties agree as follows:
ARTICLE I — DEFINITIONS
Section 1.1 Defined Terms. Capitalized terms used in this Agreement and not otherwise defined herein shall have the respective meanings ascribed to such terms in the Purchase Agreement. As used in this Agreement, the following terms shall have the meanings set forth below:
(a) "Acquired Assets" shall have the meaning ascribed to such term in the Purchase Agreement.
(b) "Assigned Contracts" means the twenty-three (23) customer contracts, supply agreements, distribution agreements, vendor agreements, and other material contracts listed on Schedule A hereto (which corresponds to the Schedule of Assigned Contracts attached to the Purchase Agreement), including contracts with major retailers and suppliers related to the CleanLeaf home cleaning product line and the PureHaven personal care product line, in each case as more fully described on Schedule A.
(c) "Assumed Liabilities" shall have the meaning ascribed to such term in the Purchase Agreement. For the avoidance of doubt, the Assumed Liabilities include, without limitation: (i) trade payables related to the Product Lines (estimated at Four Million Two Hundred Thousand Dollars ($4,200,000) as of June 30, 2022); (ii) accrued product warranty obligations related to the Product Lines (estimated at Six Hundred Twenty Thousand Dollars ($620,000) as of June 30, 2022); and (iii) all obligations and liabilities arising under or relating to the Assigned Contracts, in each case to the extent such obligations or liabilities arise or are required to be performed on or after the Closing Date.
(d) "Closing Date" shall have the meaning ascribed to such term in the Purchase Agreement.
(e) "Enforceability Exceptions" means (i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other similar laws relating to or affecting the enforcement of creditors' rights generally, and (ii) general principles of equity, including principles of commercial reasonableness, good faith, and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) "Excluded Assets" shall have the meaning ascribed to such term in the Purchase Agreement. For reference purposes, the Excluded Assets include, without limitation: (i) all assets, properties, rights, and interests of Assignor related to Assignor's Commercial Janitorial Services Division; (ii) the corporate headquarters lease at 1175 Creekside Drive, Columbus, OH 43215; (iii) all cash, cash equivalents, bank accounts, and marketable securities of Assignor; and (iv) all Tax refunds, credits, and overpayments attributable to pre-Closing periods.
(g) "Excluded Liabilities" shall have the meaning ascribed to such term in the Purchase Agreement.
(h) "Purchase Agreement" means the Asset Purchase Agreement by and between Meridian Consumer Brands LLC and Briarwood Home Essentials, Inc., dated as of [●], 2022, as the same may be amended, restated, supplemented, or otherwise modified from time to time in accordance with its terms.
(i) "Required Consents" means the consents, approvals, authorizations, or waivers of any third party (including any counterparty to any Assigned Contract) that are required in connection with the assignment of any Assigned Contract from Assignor to Assignee pursuant to this Agreement. Seven (7) of the twenty-three (23) Assigned Contracts listed on Schedule A contain change-of-control, anti-assignment, or assignment consent provisions requiring counterparty consent. Such contracts are specifically identified and listed on Schedule B hereto.
Section 1.2 Rules of Construction. The rules of construction and interpretation set forth in Section [●] of the Purchase Agreement shall apply to this Agreement, mutatis mutandis, as if set forth herein in full. Without limiting the foregoing, references to "Sections," "Articles," and "Schedules" are to sections, articles, and schedules of this Agreement unless otherwise expressly stated. The words "herein," "hereof," "hereunder," and words of similar import shall refer to this Agreement as a whole and not to any particular Section, Article, or Schedule. The use of the word "including" or any variation thereof shall mean "including, without limitation."
ARTICLE II — ASSIGNMENT OF ASSIGNED CONTRACTS AND RIGHTS
Section 2.1 Assignment of Contracts. Effective as of the Closing Date, Assignor hereby irrevocably assigns, transfers, conveys, and delivers to Assignee all of Assignor's right, title, and interest in, to, and under each of the Assigned Contracts listed on Schedule A hereto, consisting of twenty-three (23) customer contracts and other material contracts related to the CleanLeaf and PureHaven product lines. Such assignment includes, without limitation, all rights, benefits, privileges, and interests of Assignor arising under or with respect to the Assigned Contracts, including all claims, counterclaims, causes of action, choses in action, rights of recovery, rights of indemnification, and rights of set-off that Assignor may have against any counterparty to any Assigned Contract or any other Person arising under or with respect to the Assigned Contracts. From and after the Closing Date, Assignee shall be entitled to exercise all of the rights and remedies of Assignor under and with respect to the Assigned Contracts to the same extent and in the same manner as Assignor would have been entitled to exercise such rights and remedies absent this Agreement, subject to the terms and conditions of the Assigned Contracts and this Agreement.
Section 2.2 Assignment of Other Rights. In addition to the Assigned Contracts, effective as of the Closing Date, Assignor hereby irrevocably assigns, transfers, conveys, and delivers to Assignee all of Assignor's right, title, and interest in and to all other agreements, instruments, permits, licenses, authorizations, and approvals that constitute part of the Acquired Assets under the Purchase Agreement, to the extent such agreements, instruments, permits, licenses, authorizations, and approvals are assignable by their terms or under applicable law (but specifically excluding the Excluded Assets in all cases). Without limiting the generality of the foregoing, such assignment includes:
(a) all supply agreements with vendors and suppliers of raw materials and components used in the manufacture of the CleanLeaf and PureHaven product lines;
(b) all distribution agreements related to the distribution and sale of products under the CleanLeaf and PureHaven brands;
(c) all open and outstanding purchase orders issued by or to Assignor in connection with the Product Lines;
(d) all vendor agreements and procurement contracts related to the Product Lines;
(e) all governmental permits, licenses, approvals, and authorizations related to the operation of the Product Lines, to the extent transferable under applicable law; and
(f) all other agreements, instruments, and arrangements related to the Product Lines that are included in the Acquired Assets under the Purchase Agreement;
in each case, solely to the extent related to the CleanLeaf and PureHaven product lines and included in the Acquired Assets as defined in the Purchase Agreement. For the avoidance of doubt, this Section 2.2 does not assign, transfer, or convey any asset, agreement, instrument, permit, license, or authorization that constitutes an Excluded Asset under the Purchase Agreement, including any assets, agreements, or instruments related to Assignor's Commercial Janitorial Services Division.
Section 2.3 Consents to Assignment.
(a) Notwithstanding anything to the contrary contained in this Agreement, to the extent that any Assigned Contract or other agreement, instrument, permit, license, or authorization being assigned hereunder is not assignable or transferable without the consent, approval, waiver, or authorization of any third party (including any counterparty thereto, any governmental authority, or any other Person), and such consent, approval, waiver, or authorization has not been obtained as of the Closing Date, this Agreement shall not constitute an assignment or attempted assignment of such Assigned Contract or other agreement, instrument, permit, license, or authorization if and to the extent that such assignment or attempted assignment would constitute a breach or violation thereof, would be unlawful, or would give rise to any right of termination, modification, amendment, acceleration, cancellation, or any other adverse consequence thereunder. The Assigned Contracts for which Required Consents have not been obtained as of the Closing Date include the seven (7) Assigned Contracts identified on Schedule B hereto as requiring third-party consent under change-of-control, anti-assignment, or assignment consent provisions contained therein.
(b) Following the Closing Date, Assignor and Assignee shall use commercially reasonable efforts, and shall cooperate with each other, to obtain all Required Consents as promptly as practicable, in accordance with Section [●] of the Purchase Agreement. Such commercially reasonable efforts shall include the preparation and delivery of consent request letters, personal outreach to counterparties, and such other actions as may be reasonably requested by Assignee; provided, however, that neither Party shall be required to pay any consideration, make any concession, or agree to any modification of the terms of any Assigned Contract in order to obtain any Required Consent, unless otherwise agreed by the Parties in writing.
(c) Pending the receipt of any Required Consent with respect to any Assigned Contract or other agreement, instrument, permit, license, or authorization, Assignor shall cooperate with Assignee in any mutually agreeable, reasonable, and lawful arrangement designed to provide to Assignee the economic and operational benefits of the applicable Assigned Contract or other agreement, instrument, permit, license, or authorization, including by means of subcontracting, sublicensing, subleasing, or any other arrangement as may be agreed upon by the Parties. In connection with any such arrangement, Assignee shall perform and discharge the obligations of Assignor under the applicable Assigned Contract or other agreement, instrument, permit, license, or authorization at Assignee's sole cost and expense and shall indemnify and hold harmless Assignor from and against any losses, liabilities, or costs arising from Assignee's performance (or failure to perform) thereunder. Upon receipt of any Required Consent following the Closing Date, the assignment of the applicable Assigned Contract or other agreement, instrument, permit, license, or authorization shall be deemed to have been automatically effected as of the Closing Date (or, if later, as of the date on which such Required Consent is obtained), without the need for any further action by either Party, except to the extent that any additional documentation is reasonably required.
Section 2.4 Lease Assignment.
(a) The Parties acknowledge and agree that the lease for the manufacturing facility located at 2800 Industrial Parkway, Marysville, OH 43040 (the "Marysville Lease"), pursuant to which Assignor leases certain premises from Buckeye Industrial Properties LLC, an Ohio limited liability company, having its principal office at 77 East Nationwide Boulevard, Suite 200, Columbus, OH 43215 ("Landlord"), is included among the Assigned Contracts and is subject to a landlord consent requirement under the terms of the Marysville Lease. A written request for landlord consent to the assignment of the Marysville Lease was submitted to Landlord on October 7, 2022. As of the date of this draft, no response has been received from Landlord with respect to such consent request.
(b) The assignment of the Marysville Lease is governed by Section [●] of the Purchase Agreement. To the extent that obtaining landlord consent for the assignment of the Marysville Lease is a condition to the Closing under the Purchase Agreement, such condition may be waived by Buyer in its sole discretion. If such condition is waived and the Closing occurs without landlord consent having been obtained, the Marysville Lease shall be subject to the interim arrangement provisions set forth in Section 2.3 of this Agreement and the corresponding provisions of the Purchase Agreement, and the Parties shall continue to use commercially reasonable efforts to obtain such consent following the Closing Date.
(c) For the avoidance of doubt, the owned facility located at 500 Commerce Boulevard, West Jefferson, OH 43162 (the "West Jefferson Distribution Center") is being conveyed to Assignee pursuant to the Bill of Sale and by special warranty deed as part of the Acquired Assets, and is not subject to this Section 2.4 or to any assignment consent requirement.
ARTICLE III — ASSUMPTION OF ASSUMED LIABILITIES
Section 3.1 Assumption. Effective as of the Closing Date, Assignee hereby irrevocably assumes and agrees to pay, perform, satisfy, and discharge when due all of the Assumed Liabilities, including, without limitation, the following:
(a) all trade payables and accounts payable of Assignor related to the CleanLeaf and PureHaven product lines, as set forth on the Schedule of Assumed Liabilities to the Purchase Agreement (estimated at Four Million Two Hundred Thousand Dollars ($4,200,000) as of June 30, 2022);
(b) all accrued product warranty obligations of Assignor related to the CleanLeaf and PureHaven product lines, as set forth on the Schedule of Assumed Liabilities to the Purchase Agreement (estimated at Six Hundred Twenty Thousand Dollars ($620,000) as of June 30, 2022); and
(c) all obligations, liabilities, and commitments arising under or relating to the Assigned Contracts, in each case to the extent such obligations, liabilities, or commitments arise or are required to be performed on or after the Closing Date.
The specific Assumed Liabilities are as set forth in detail on the Schedule of Assumed Liabilities attached to the Purchase Agreement and as summarized on Schedule C hereto. Assignee's assumption of the Assumed Liabilities shall be for the benefit of Assignor and the counterparties to the Assigned Contracts and shall be absolute and unconditional, subject only to any defenses, counterclaims, rights of set-off, or other rights available to Assignor under the applicable Assigned Contract as of the Closing Date.
Section 3.2 Excluded Liabilities. Notwithstanding anything to the contrary contained in this Agreement, Assignee does not assume and shall not be deemed to have assumed, and Assignor shall retain and remain solely responsible for, all Excluded Liabilities (as defined in the Purchase Agreement). The Excluded Liabilities include, without limitation, the following:
(a) all liabilities and obligations arising out of, relating to, or in connection with the Excluded Assets, including, without limitation, all liabilities and obligations related to or arising from the operation of Assignor's Commercial Janitorial Services Division;
(b) all liabilities for Taxes (as defined in the Purchase Agreement) of Assignor or otherwise attributable to the Acquired Assets or the Product Lines for any taxable period (or portion thereof) ending on or before the Closing Date;
(c) all liabilities arising from any breach by Assignor of any Assigned Contract or any other agreement, instrument, or obligation prior to the Closing Date, or any default by Assignor thereunder occurring prior to the Closing Date;
(d) all product liability claims, personal injury claims, property damage claims, and other tort claims arising from or related to products manufactured, distributed, marketed, or sold by Assignor prior to the Closing Date;
(e) all liabilities arising from any litigation, arbitration, investigation, or other legal proceeding pending as of the Closing Date or arising from events occurring prior to the Closing Date, except to the extent expressly assumed as Assumed Liabilities under the Purchase Agreement;
(f) all liabilities related to current or former employees of Assignor arising prior to the Closing Date, including liabilities for wages, salaries, bonuses, benefits, severance, and WARN Act obligations; and
(g) all other liabilities and obligations of Assignor that are not expressly assumed by Assignee herein or in the Purchase Agreement.
Assignor shall remain solely and exclusively responsible for, and shall indemnify and hold harmless Assignee from and against, all Excluded Liabilities, in accordance with the terms of the Purchase Agreement.
Section 3.3 Indemnification Cross-Reference. The Parties' respective indemnification obligations with respect to the Assumed Liabilities, the Excluded Liabilities, and any other matters arising under or in connection with this Agreement are governed exclusively by Article [●] of the Purchase Agreement. Without limiting the foregoing, the following terms of the Purchase Agreement shall apply to any indemnification claims arising in connection with this Agreement:
(a) the aggregate indemnification cap of Thirty-Three Million Two Hundred Fifty Thousand Dollars ($33,250,000), which represents thirty-five percent (35%) of the aggregate purchase price of Ninety-Five Million Dollars ($95,000,000);
(b) the tipping basket threshold of Nine Hundred Fifty Thousand Dollars ($950,000), representing one percent (1%) of the aggregate purchase price, below which no indemnification obligations shall arise (and upon which threshold being exceeded, indemnification shall be available from the first dollar of losses);
(c) the twenty-four (24) month survival period applicable to general representations and warranties, commencing on the Closing Date; and
(d) the escrow holdback of Nine Million Five Hundred Thousand Dollars ($9,500,000), held by Atlantic Fiduciary Trust Company as escrow agent pursuant to the terms of the Escrow Agreement.
Nothing in this Agreement is intended to, or shall be construed to, expand, limit, reduce, or otherwise modify the indemnification provisions of the Purchase Agreement. All indemnification claims arising in connection with this Agreement shall be subject to the limitations, procedures, and other terms set forth in Article [●] of the Purchase Agreement.
ARTICLE IV — REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of Assignor. Assignor hereby represents and warrants to Assignee as follows, as of the date hereof and as of the Closing Date:
(a) Organization and Good Standing. Assignor is a corporation duly organized, validly existing, and in good standing under the laws of the State of Ohio, and has all requisite corporate power and authority to own, lease, and operate its properties and assets and to carry on its business as presently conducted.
(b) Authority. Assignor has all requisite corporate power and authority to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Agreement by Assignor do not and will not (i) violate, conflict with, or result in a breach of any provision of the articles of incorporation or bylaws of Assignor, (ii) violate, conflict with, or result in a breach of any law, rule, regulation, order, judgment, or decree applicable to Assignor, or (iii) violate, conflict with, result in a breach of, constitute a default under, or give rise to any right of termination, amendment, acceleration, or cancellation under any material agreement or instrument to which Assignor is a party or by which Assignor or any of its assets or properties is bound, except as would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on Assignor's ability to consummate the transactions contemplated hereby.
(c) Authorization. The execution, delivery, and performance of this Agreement by Assignor and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of Assignor, including, without limitation, the approval of Malcolm Greer in his capacity as the sole shareholder and President of Assignor. No other corporate proceedings on the part of Assignor are necessary to authorize the execution, delivery, and performance of this Agreement or the consummation of the transactions contemplated hereby.
(d) Enforceability. This Agreement has been duly executed and delivered by Assignor and constitutes the legal, valid, and binding obligation of Assignor, enforceable against Assignor in accordance with its terms, subject to the Enforceability Exceptions.
(e) No Prior Assignment or Encumbrance. Assignor has not previously assigned, transferred, pledged, encumbered, or otherwise disposed of any of the Assigned Contracts or any of its rights, interests, or obligations thereunder, other than Permitted Encumbrances as set forth in the Purchase Agreement. Assignor has good and valid title to, or a valid and enforceable leasehold interest in, each of the Assigned Contracts, free and clear of all liens, claims, encumbrances, and other restrictions, other than Permitted Encumbrances.
(f) Validity of Assigned Contracts. To Assignor's knowledge, as of the date hereof and as of the Closing Date, each of the Assigned Contracts is in full force and effect and constitutes a legal, valid, and binding obligation of Assignor and, to Assignor's knowledge, of the other parties thereto. Assignor is not in material breach or default under any Assigned Contract, and, to Assignor's knowledge, no event has occurred that, with the giving of notice or the lapse of time or both, would constitute a material breach or default by Assignor under any Assigned Contract. To Assignor's knowledge, no counterparty to any Assigned Contract is in material breach or default thereunder.
Section 4.2 Representations and Warranties of Assignee. Assignee hereby represents and warrants to Assignor as follows, as of the date hereof and as of the Closing Date:
(a) Organization and Good Standing. Assignee is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware, and has all requisite limited liability company power and authority to own, lease, and operate its properties and assets and to carry on its business as presently conducted.
(b) Authority. Assignee has all requisite limited liability company power and authority to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Agreement by Assignee do not and will not (i) violate, conflict with, or result in a breach of any provision of the certificate of formation or limited liability company agreement of Assignee, (ii) violate, conflict with, or result in a breach of any law, rule, regulation, order, judgment, or decree applicable to Assignee, or (iii) violate, conflict with, result in a breach of, constitute a default under, or give rise to any right of termination, amendment, acceleration, or cancellation under any material agreement or instrument to which Assignee is a party or by which Assignee or any of its assets or properties is bound, except as would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on Assignee's ability to consummate the transactions contemplated hereby.
(c) Authorization. The execution, delivery, and performance of this Agreement by Assignee and the consummation of the transactions contemplated hereby have been duly authorized by all necessary limited liability company action on the part of Assignee. No other proceedings on the part of Assignee or its members are necessary to authorize the execution, delivery, and performance of this Agreement or the consummation of the transactions contemplated hereby.
(d) Enforceability. This Agreement has been duly executed and delivered by Assignee and constitutes the legal, valid, and binding obligation of Assignee, enforceable against Assignee in accordance with its terms, subject to the Enforceability Exceptions.
ARTICLE V — EMPLOYEES
Section 5.1 Transferring Employees. The treatment of the one hundred eighty-six (186) employees of Assignor who are associated with the CleanLeaf and PureHaven product lines (the "Business Employees") is governed by Section [●] of the Purchase Agreement. Nothing in this Agreement shall create, or be deemed to create, any obligation on the part of Assignee to offer employment to, hire, or retain any employee of Assignor, whether or not such employee is a Business Employee. Any obligations of Assignee with respect to the offer of employment to, or the terms and conditions of employment of, any Business Employee are governed exclusively by the Purchase Agreement and the individual offer letters issued by Assignee in connection therewith (if any).
Section 5.2 Employment Agreements. This Agreement does not assign, transfer, or convey any employment agreement, consulting agreement, or independent contractor agreement to which Assignor is a party, except to the extent that such agreement is expressly listed on Schedule A hereto as an Assigned Contract. Neither Assignor nor Assignee shall have any obligation under this Agreement with respect to any employment-related agreement that is not an Assigned Contract.
Section 5.3 No Third-Party Beneficiary Rights. Nothing in this Article V shall confer upon any employee of Assignor (whether or not a Business Employee) any rights or remedies of any kind or nature, including any right to employment or continued employment with Assignee, any right to any particular term or condition of employment, or any third-party beneficiary rights with respect to this Agreement.
ARTICLE VI — FURTHER ASSURANCES
Section 6.1 Cooperation. Each Party shall, from time to time after the Closing Date, at the reasonable written request of the other Party and without further consideration (other than the reimbursement of reasonable out-of-pocket expenses), execute and deliver such further instruments of assignment, transfer, conveyance, assumption, and confirmation and take such further actions as may be reasonably necessary or desirable to effectuate, confirm, or evidence the assignment and assumption contemplated by this Agreement. Without limiting the generality of the foregoing:
(a) Assignor shall cooperate with Assignee in connection with obtaining any Required Consents that have not been obtained as of the Closing Date, including the seven (7) customer contracts identified on Schedule B hereto as requiring third-party assignment consent and the landlord consent from Buckeye Industrial Properties LLC with respect to the Marysville Lease described in Section 2.4 of this Agreement;
(b) Assignor shall execute and deliver such instruments of assignment, bills of sale, endorsements, and other documents as Assignee may reasonably request to vest in Assignee good and valid title to the Assigned Contracts and the other Acquired Assets assigned hereunder, free and clear of all liens and encumbrances other than Permitted Encumbrances; and
(c) Assignee shall execute and deliver such instruments of assumption and other documents as Assignor may reasonably request to evidence and confirm the assumption by Assignee of the Assumed Liabilities.
Section 6.2 Misdirected Payments and Communications. If, at any time following the Closing Date, either Party receives any payment, invoice, correspondence, notice, demand, or other communication that properly belongs to the other Party under or with respect to any Assigned Contract or any other agreement, instrument, or arrangement assigned or assumed hereunder, such Party shall promptly (and in any event within five (5) Business Days of receipt) notify the other Party and forward or remit the same to the other Party, together with any accompanying documentation. Each Party agrees to hold any such payment, correspondence, or communication in trust for the benefit of the other Party pending such forwarding or remittance. Any payment received by Assignor after the Closing Date with respect to any Assigned Contract shall be deemed to be held in trust for, and shall be promptly remitted to, Assignee.
ARTICLE VII — MISCELLANEOUS PROVISIONS
Section 7.1 Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York, without giving effect to any choice of law or conflict of law rules, principles, or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York, consistent with the governing law provisions of the Purchase Agreement. Each Party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts located in the Borough of Manhattan, City of New York, State of New York, for the adjudication of any dispute arising out of or relating to this Agreement, and each Party hereby irrevocably waives, and agrees not to assert, any claim that it is not personally subject to the jurisdiction of any such court or that any such action has been brought in an inconvenient forum.
Section 7.2 Relationship to Purchase Agreement. This Agreement is entered into pursuant to, and is subject to, the terms and conditions of the Purchase Agreement. This Agreement is intended to effectuate and evidence the assignment and assumption of the Assigned Contracts and the Assumed Liabilities contemplated by the Purchase Agreement. In the event of any conflict, inconsistency, or ambiguity between the terms and provisions of this Agreement and the terms and provisions of the Purchase Agreement, the terms and provisions of the Purchase Agreement shall govern, control, and prevail in all respects. Nothing in this Agreement is intended to, or shall be construed to, expand, limit, restrict, modify, supersede, or otherwise alter the rights, obligations, representations, warranties, covenants, conditions, or indemnification provisions of any Party under the Purchase Agreement. Without limiting the foregoing, the representations, warranties, covenants, and indemnification provisions of the Purchase Agreement (including the indemnification cap of Thirty-Three Million Two Hundred Fifty Thousand Dollars ($33,250,000), the tipping basket of Nine Hundred Fifty Thousand Dollars ($950,000), and the twenty-four (24) month survival period for general representations and warranties) shall govern and control any and all claims arising in connection with this Agreement.
Section 7.3 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns. Neither Party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party, except as expressly permitted by the Purchase Agreement.
Section 7.4 Amendment and Waiver.
(a) This Agreement may not be amended, modified, supplemented, or restated except by a written instrument duly executed by both Parties hereto.
(b) No waiver of any provision of this Agreement, or of any breach or default hereunder, shall be effective unless set forth in a written instrument signed by the Party against whom such waiver is sought to be enforced. No waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), nor shall any waiver constitute a continuing waiver unless expressly so provided.
Section 7.5 Entire Agreement. This Agreement, together with the Purchase Agreement and the other Transaction Documents (as defined in the Purchase Agreement), including the Bill of Sale, the intellectual Property Assignment Agreement, the Transition Services Agreement, the Escrow Agreement, and the Non-Competition and Non-Solicitation Agreement, and the Schedules and Exhibits thereto, constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, negotiations, representations, and warranties, whether written or oral, with respect to the subject matter hereof.
Section 7.6 Severability. If any provision of this Agreement, or the application of any such provision to any Person or circumstance, is held invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and the remaining provisions of this Agreement shall continue in full force and effect. In such event, the Parties shall negotiate in good faith to replace the invalid, illegal, or unenforceable provision with a valid, legal, and enforceable provision that, to the greatest extent possible, achieves the economic, business, and other purposes of the invalid, illegal, or unenforceable provision.
Section 7.7 Counterparts and Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument. Signatures transmitted by facsimile or by electronic means (including by portable document format (PDF) or any electronic signature platform complying with the U.S. Federal ESIGN Act or similar applicable state law) shall be deemed original signatures for all purposes and shall be sufficient to bind the Party whose name and signature appear thereon.
Section 7.8 Notices. All notices, requests, demands, consents, waivers, and other communications required or permitted to be given under this Agreement shall be in writing and shall be delivered in accordance with the notice provisions of the Purchase Agreement, addressed as follows (or to such other address as a Party may designate by written notice to the other Party in accordance herewith):
If to Assignee:
Meridian Consumer Brands LLC 440 Park Avenue South, 18th Floor New York, NY 10016
Attention: Diana Ressler, General Counsel
Telephone: [●]
Email: [●]
with a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP 599 Lexington Avenue, 36th Floor New York, NY 10022
Attention: Sandra Tung
Telephone: [●]
Email: [●]
If to Assignor:
Briarwood Home Essentials, Inc. 1175 Creekside Drive, Suite 400 Columbus, OH 43215
Attention: Malcolm Greer, President
Telephone: [●]
Email: [●]
with a copy (which shall not constitute notice) to:
Caldwell, Pruitt & Shaw LLP 41 South High Street, Suite 2800 Columbus, OH 43215
Attention: Rachel Underwood
Telephone: [●]
Email: [●]
Section 7.9 Third-Party Beneficiaries. Except as expressly provided in the Purchase Agreement, nothing in this Agreement, express or implied, is intended to, or shall be construed to, confer upon any Person other than the Parties hereto and their respective successors and permitted assigns any right, benefit, remedy, claim, or cause of action of any kind or nature under or by reason of this Agreement.
Section 7.10 Headings. The article, section, and other headings contained in this Agreement are for convenience of reference only and shall not affect the meaning, interpretation, or construction of this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Assignment and Assumption Agreement to be duly executed and delivered as of the date first written above.
ASSIGNOR:
BRIARWOOD HOME ESSENTIALS, INC., an Ohio corporation
By: ________
Name: Malcolm Greer
Title: President
Date: ________
ASSIGNEE:
MERIDIAN CONSUMER BRANDS LLC, a Delaware limited liability company
By: ________
Name: Gareth Holloway
Title: CEO & Managing Member
Date: ________
SCHEDULE A to Assignment and Assumption Agreement
List of Assigned Contracts
The following table sets forth the twenty-three (23) customer contracts and other material contracts being assigned from Briarwood Home Essentials, Inc. (Assignor) to Meridian Consumer Brands LLC (Assignee) pursuant to the Assignment and Assumption Agreement to which this Schedule A is attached. This list corresponds to the Schedule of Assigned Contracts attached to the Purchase Agreement.
Note: Specific counterparty names, contract dates, and consent status information to be populated from the Schedule of Assigned Contracts to the Purchase Agreement. Seven (7) of the twenty-three (23) contracts listed above contain change-of-control or assignment consent provisions requiring counterparty consent prior to or following assignment. Such contracts are specifically identified and cross-referenced on Schedule B hereto. All contracts listed above relate exclusively to the CleanLeaf and PureHaven product lines.
SCHEDULE B to Assignment and Assumption Agreement
Assigned Contracts Requiring Third-Party Consent
The following table identifies the seven (7) Assigned Contracts (out of the twenty-three (23) Assigned Contracts listed on Schedule A) that contain change-of-control, anti-assignment, or assignment consent provisions requiring the consent, approval, waiver, or authorization of a third party (the counterparty thereto) in connection with the assignment of such Assigned Contract from Assignor to Assignee.
Note: Consent request form letters for items 1 through 6 above were prepared by Calderwood & Harkness LLP, dated October 12, 2022, for use in requesting Required Consents from the counterparties to the applicable Assigned Contracts. The landlord consent request for item 7 (Buckeye Industrial Properties LLC — Marysville Lease) was submitted on October 7, 2022. All consent requests remain pending as of the date of this draft. Specific counterparty names, Schedule A cross-reference numbers, and section references for the relevant consent provisions to be confirmed and inserted from the final Schedule of Assigned Contracts to the Purchase Agreement.
SCHEDULE C to Assignment and Assumption Agreement
Assumed Liabilities
The following is a summary of the liabilities being assumed by Assignee (Meridian Consumer Brands LLC) pursuant to the Assignment and Assumption Agreement to which this Schedule C is attached and the Purchase Agreement. This schedule is a summary only and is cross-referenced to, and qualified in its entirety by, the Schedule of Assumed Liabilities attached to the Purchase Agreement.
Note: The amounts set forth above for categories (a) and (b) are estimates as of the reference date of June 30, 2022, and are subject to adjustment. Final amounts for each category of Assumed Liabilities will be determined at or prior to the Closing Date in accordance with the adjustment and true-up procedures set forth in the Purchase Agreement, including the working capital adjustment mechanism. The liabilities assumed under category (c) are ongoing contractual obligations and are not separately quantified as of the date of this draft. All Assumed Liabilities are as defined in, and subject to the terms and conditions of, the Purchase Agreement. This schedule does not include, and Assignee does not assume, any Excluded Liabilities (as defined in the Purchase Agreement).
[Remainder of Page Intentionally Left Blank]
No. | Counterparty Name | Description / Type | Date of Contract | Third-Party Consent Required (Y/N) | Consent Status
1 | [Counterparty Name] | Customer Supply Agreement (CleanLeaf) | [Date] | [Y/N] | [Status]
2 | [Counterparty Name] | Customer Supply Agreement (CleanLeaf) | [Date] | [Y/N] | [Status]
3 | [Counterparty Name] | Customer Supply Agreement (PureHaven) | [Date] | [Y/N] | [Status]
4 | [Counterparty Name] | Distribution Agreement (CleanLeaf) | [Date] | [Y/N] | [Status]
5 | [Counterparty Name] | Distribution Agreement (PureHaven) | [Date] | [Y/N] | [Status]
6 | [Counterparty Name] | Customer Supply Agreement (CleanLeaf) | [Date] | [Y/N] | [Status]
7 | [Counterparty Name] | Vendor Supply Agreement (CleanLeaf/PureHaven) | [Date] | [Y/N] | [Status]
8 | [Counterparty Name] | Customer Supply Agreement (PureHaven) | [Date] | [Y/N] | [Status]
9 | [Counterparty Name] | Distribution Agreement (CleanLeaf/PureHaven) | [Date] | [Y/N] | [Status]
10 | [Counterparty Name] | Customer Supply Agreement (CleanLeaf) | [Date] | [Y/N] | [Status]
11 | [Counterparty Name] | Customer Supply Agreement (PureHaven) | [Date] | [Y/N] | [Status]
12 | [Counterparty Name] | Vendor Supply Agreement (CleanLeaf) | [Date] | [Y/N] | [Status]
13 | [Counterparty Name] | Co-Manufacturing Agreement (PureHaven) | [Date] | [Y/N] | [Status]
14 | [Counterparty Name] | Customer Supply Agreement (CleanLeaf/PureHaven) | [Date] | [Y/N] | [Status]
15 | [Counterparty Name] | Lease – 2800 Industrial Parkway, Marysville, OH (Manufacturing Facility) | [Date] | Y | Pending
16 | [Counterparty Name] | Customer Supply Agreement (CleanLeaf) | [Date] | [Y/N] | [Status]
17 | [Counterparty Name] | Customer Supply Agreement (PureHaven) | [Date] | [Y/N] | [Status]
18 | [Counterparty Name] | Procurement Agreement (CleanLeaf/PureHaven) | [Date] | [Y/N] | [Status]
19 | [Counterparty Name] | Customer Supply Agreement (CleanLeaf) | [Date] | [Y/N] | [Status]
20 | [Counterparty Name] | Customer Supply Agreement (PureHaven) | [Date] | [Y/N] | [Status]
21 | [Counterparty Name] | Distribution Agreement (PureHaven) | [Date] | [Y/N] | [Status]
22 | [Counterparty Name] | Customer Supply Agreement (CleanLeaf/PureHaven) | [Date] | [Y/N] | [Status]
23 | [Counterparty Name] | Vendor Supply Agreement (PureHaven) | [Date] | [Y/N] | [Status]
No. | Schedule A Ref. No. | Counterparty Name | Relevant Consent Provision | Date Consent Requested | Consent Obtained (Y/N/Pending)
1 | [●] | [Counterparty Name] | Section [●] (Assignment / Change of Control) | October 12, 2022 | Pending
2 | [●] | [Counterparty Name] | Section [●] (Assignment Restriction) | October 12, 2022 | Pending
3 | [●] | [Counterparty Name] | Section [●] (Change of Control) | October 12, 2022 | Pending
4 | [●] | [Counterparty Name] | Section [●] (Assignment Consent Required) | October 12, 2022 | Pending
5 | [●] | [Counterparty Name] | Section [●] (Anti-Assignment) | October 12, 2022 | Pending
6 | [●] | [Counterparty Name] | Section [●] (Assignment / Change of Control) | October 12, 2022 | Pending
7 | 15 | Buckeye Industrial Properties LLC | Section [●] (Landlord Consent to Assignment) | October 7, 2022 | Pending
Category | Description | Estimated Amount (as of June 30, 2022)
(a) Trade Payables | Trade payables and accounts payable related to the CleanLeaf and PureHaven product lines, including amounts owed to vendors, suppliers, and service providers for goods and services received in connection with the Product Lines | $4,200,000
(b) Product Warranty Obligations | Accrued product warranty obligations and reserves related to products sold under the CleanLeaf and PureHaven brands, including estimated costs of product returns, replacements, and repairs | $620,000
(c) Post-Closing Contract Obligations | All obligations, liabilities, and commitments arising under or relating to the Assigned Contracts listed on Schedule A hereto, in each case to the extent such obligations, liabilities, or commitments arise or are required to be performed on or after the Closing Date | To be determined at Closing

CONFIDENTIAL TREATMENT REQUESTED

ASSIGNMENT AND ASSUMPTION AGREEMENT

ASSIGNMENT AND ASSUMPTION AGREEMENT

RECITALS

ASSIGNOR:

ASSIGNEE:

Record

Parties

Dates

Amounts