Acquired Assets. Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, Seller will sell, convey, assign, transfer and deliver to Buyer, and Buyer shall purchase from Seller, all of Seller’s right, title and interest in and to all of the assets set forth below, including all of the Projects (collectively, the “Acquired Assets”): (i) all trade and other notes and accounts receivable that are, with respect to each of the aforementioned items, specifically related to the Business, in each case only to the extent relating to the period after September 30, 2024, provided, however, that any such trade and other notes and accounts receivable that are, with respect to each of the aforementioned items, specifically related to the Business and received by Buyer after the termination of the Transition Services Agreement shall belong to Buyer; (ii) all Inventory and supplies that are, with respect to each of the aforementioned items, owned, used or held for use primarily in connection with the Business, including all inventory that is set forth on Section 2.1(a)(ii) of the Disclosure Schedules attached hereto; (iii) all equipment, machinery, tools, and other components of residential solar systems, including PV Systems, and other tangible personal property of Seller that are, with respect to each of the aforementioned items, used primarily in the Business, including the items set forth on Section 2.1(a)(iii) of the Disclosure Schedules (the “Tangible Personal Property”); (iv) all email accounts set forth on Section 2.1(a)(iv) of the Disclosure Schedules, including email address names that are used primarily in the Business and all email messages associated with such email accounts; (v) all Permits, to the extent transferable, which are held by Seller and required specifically for the conduct of the Business as currently conducted or for the ownership and use of the Acquired Assets and not required for Seller to conduct any of its operations that are being retained; (vi) all rights to any Proceeding of any nature available to or being pursued by Seller, to the extent related primarily to the Business, the other Acquired Assets or the Assumed Liabilities, whether arising by way of counterclaim or otherwise, in each case only to the extent relating to Assumed Liabilities or relating to the period after September 30, 2024; (vii) all prepaid items and expenses (other than prepaid insurance premiums), credits, advance payments, claims, security, refunds, rights of recovery, rights of set-off, rights of recoupment, deposits, charges, sums and fees that are, with respect to each of the aforementioned items, primarily related to the Business; (viii) all of Seller’s rights under warranties (including installer warranties), indemnities and all similar rights against third parties to the extent, with respect to each of the aforementioned items, related primarily to any of the other Acquired Assets or the Assumed Liabilities; (ix) all lists, records and other information pertaining to suppliers and customers, all lists, records and other information pertaining to accounts, referral sources, all drawings, plats, specifications, reports, studies, plans, books, ledgers, files, documents, correspondence and business and accounting materials, all advertising, marketing and promotional materials, and all other printed or written materials, in each case owned, maintained or in the custody or control of Seller that, with respect to each of the aforementioned items, relate primarily to the Business, the Acquired Assets or the Assumed Liabilities, and in each case whether or not evidenced in writing, electronic data or otherwise (the “Books and Records”); (x) all Contracts existing or used primarily in connection with the Business to which Seller or any of its Subsidiaries is a party that are (1) Material Contracts, (2) Project Contracts, (3) set forth on Section 2.1(a)(x) of the Disclosure Schedules, (4) Customer Agreements, or (5) expressly referenced in other subsections of this Section 2.1(a) to the extent, with respect to each of the aforementioned items, used primarily in connection with the Business (collectively, the “Assigned Contracts” it being understood that Assigned Contracts shall in no event include Excluded Contracts); (xi) all SRECs generated by the Projects on and after October 1, 2024 and all TRECs and SREC-IIs generated on and after October 1, 2024; and (xii) all of Seller’s right, title, benefit and interest in and to the warranties and indemnities under the Installer Agreement associated with each additional Project sold by Seller to Buyer under Section 5.10 (“Warranty Rights”), including Seller’s right to receive the benefits of and to make claims under the Warranty Rights, subject, in each instance, to the limitations, conditions, exclusion of liabilities and disclaimers described in such Installer Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Spruce Power Holding Corp)
Acquired Assets. Upon Subject to the terms and subject to the conditions set forth in this Agreement, including without limitation Section 1.3, at the Closing, Seller will Sellers shall sell, convey, assign, transfer and deliver to BuyerPurchaser, and Buyer Purchaser shall purchase from Sellerpurchase, acquire and take assignment and delivery of, the following assets owned by Sellers (wherever located) related to, or used in conjunction with, the Business, and all of Seller’s Sellers' right, title and interest therein and thereto, but not including those assets specifically excluded in and to Section 1.3 (all of the assets sold, assigned, transferred and delivered to Purchaser hereunder are referred to collectively herein as the "Acquired Assets"):
(a) Except as set forth belowon Schedule 1.3(a), including all of the Projects machinery, equipment, installations, lift trucks, vehicles, patterns, dies, tools, maintenance equipment and production machinery and equipment of every kind and description which relate in any manner to the Business (collectively, the “Acquired Assets”):
(i) all trade "Equipment and other notes and accounts receivable that are, with respect to each of the aforementioned items, specifically related to the Business, in each case only to the extent relating to the period after September 30, 2024, provided, however, that any such trade and other notes and accounts receivable that are, with respect to each of the aforementioned items, specifically related to the Business and received by Buyer after the termination of the Transition Services Agreement shall belong to BuyerVehicles";
(iib) Except as set forth on Schedule 1.3(b), all Inventory and supplies that are, with respect to each of the aforementioned items, owned, inventories existing on the Closing Date and used or held for use primarily in connection with the Business, including all inventory raw materials, packaging materials (including all such packaging material that is set forth on Section 2.1(a)(ii) contain the name "American White Cross" and any of the Disclosure Schedules attached hereto;
(iii) all equipmentits derivatives), machinerywork in process and finished goods inventories, toolswherever located, whether Slow Moving Inventory or not, and other components of residential solar systemswhich relate in any manner to the Business (collectively, including PV Systems, and other tangible personal property of Seller that are, with respect to each of the aforementioned items, used primarily in the Business, including the items set forth on Section 2.1(a)(iii) of the Disclosure Schedules (the “Tangible Personal Property”"Inventory");
(ivc) all email accounts All spare parts and manufacturing and operating supplies, wherever located, which relate in any manner to the Business;
(d) All (i) patents, patent applications, licenses, service names, service marks, trade names, trademarks, trade name and trademark registrations (and applications therefor), copyrights and copyright registrations (and applications therefor), inventions and designs set forth on Section 2.1(a)(ivSchedule 1.1 (d), (ii) the name "American White Cross" and any of the Disclosure Schedules, including email address names that are used primarily its derivatives as currently in use on products related to the Business for the later of (x) two years from the date hereof and (y) the date when all email messages associated with such email accountspackaging material that contain the name "American White Cross" and any of its derivatives acquired pursuant to Section 1.1(b) hereof is depleted in full and (iii) goodwill, trade secrets, processes, know-how and formulae which relate in any manner to the Business (collectively, the "Intellectual Property");
(ve) all PermitsAny Claims, to the extent transferabledeposits, which are held by Seller and required specifically for the conduct of the Business as currently conducted or for the ownership and use of the Acquired Assets and not required for Seller to conduct any of its operations that are being retained;
(vi) all rights to any Proceeding of any nature available to or being pursued by Sellerleasehold improvements, to the extent related primarily to the Business, the other Acquired Assets or the Assumed Liabilities, whether arising by way of counterclaim or otherwise, in each case only to the extent relating to Assumed Liabilities or relating to the period after September 30, 2024;
(vii) all prepaid items and expenses (other than prepaid insurance premiums), credits, advance payments, claims, securityprepayments, refunds, causes of action, chooses in action, rights of recovery, rights of set-off, and rights of recoupmentrecoupment which relate to the Business and are set forth on Schedule 1.1(h); and
(f) Copies of all production records, depositsproduct files, chargestechnical information, sums designs, drawings, confidential information, price lists, marketing plans and fees that arestrategies, with respect to each sales records, product development techniques or plans, customer lists and files (including customer credit and collection information), details of the aforementioned itemsclient or consultant contracts, primarily related operational methods, historical and financial records and files, and other proprietary information relating to the Business;
(viiig) all of Seller’s rights under warranties (including installer warranties), indemnities and all similar rights against third parties to the extent, with respect to each of the aforementioned items, related primarily to any of the other Acquired Assets or the Assumed Liabilities;
(ix) all lists, records and other information pertaining to suppliers and customers, all lists, records and other information pertaining to accounts, referral sources, all drawings, plats, specifications, reports, studies, plans, books, ledgers, files, documents, correspondence and business and accounting materials, all advertising, marketing and promotional materials, Any and all other printed or written materials, in each case owned, maintained or in the custody or control of Seller that, with respect to each assets and rights that are not of the aforementioned itemstype or character referenced in Section 1.1(a) - (f) and which relate to, relate primarily to or are necessary for the Businesscontinuation after the Closing Date of, the Acquired Assets or Business in at least the Assumed Liabilities, same manner and in each case whether or not evidenced in writing, electronic data or otherwise (the “Books and Records”);
(x) all Contracts existing or used primarily in connection with the Business to which Seller or any of its Subsidiaries is a party that are (1) Material Contracts, (2) Project Contracts, (3) set forth on Section 2.1(a)(x) magnitude as of the Disclosure Schedules, (4) Customer Agreements, or (5) expressly referenced in other subsections of this Section 2.1(a) to the extent, with respect to each of the aforementioned items, used primarily in connection with the Business (collectively, the “Assigned Contracts” it being understood that Assigned Contracts shall in no event include Excluded Contracts);
(xi) all SRECs generated by the Projects on and after October 1, 2024 and all TRECs and SREC-IIs generated on and after October 1, 2024; and
(xii) all of Seller’s right, title, benefit and interest in and to the warranties and indemnities under the Installer Agreement associated with each additional Project sold by Seller to Buyer under Section 5.10 (“Warranty Rights”), including Seller’s right to receive the benefits of and to make claims under the Warranty Rights, subject, in each instance, to the limitations, conditions, exclusion of liabilities and disclaimers described in such Installer Agreementdate hereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (American White Cross Inc)
Acquired Assets. Upon the terms On and subject to the terms and conditions set forth in of this Agreement, at the Closing, Seller will sell, convey, assign, transfer and deliver to Buyer, and the Buyer shall purchase from Sellerthe Seller and the Seller shall sell, transfer, assign, convey and deliver to the Buyer, all of Seller’s right, title and interest of the Seller in and to all of the tangible and intangible assets, business, goodwill and rights of the Seller, other than the Excluded Assets (all such assets, business, goodwill and rights being purchased hereunder are collectively referred to as the “Acquired Assets”), as the same shall exist immediately prior to the Closing, free and clear of all Liens (other than Permitted Liens), including, without limitation, the following:
(a) all accounts, notes and other receivables;
(b) all raw materials and supplies, work-in-process, processed or finished goods and other items of inventory, and all packaging, wrapping, shipping containers and other parts, wherever located;
(c) all real property, machinery, equipment, furniture, fixtures, leasehold improvements, vehicles and other tangible personal property, including, without limitation, all such assets currently located at the facilities set forth belowon Schedule 5.10(c);
(d) all Intellectual Property, including the goodwill associated therewith, licenses and sublicenses granted or obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the Laws of all jurisdictions, subject to the limitations set forth in Section 2.4;
(e) all of the Projects interest and rights of the Seller in and to (i) the agreements, contracts, licenses, commitments, documents and leases (of real or personal property) (including, without limitation, any such agreements, contracts, licenses, commitments, documents and leases listed on Schedule 5.13) to which the Seller is a party or by which its assets are bound, save and except contracts of employment and those agreements specifically marked as Excluded Assets in the disclosure schedules to this Agreement, and (ii) all purchase and sale orders entered into by the Seller in the ordinary conduct of the Business (collectively, the “Acquired AssetsContracts”):
(i) all trade and other notes and accounts receivable that are), with respect to each of the aforementioned items, specifically related subject to the Business, limitations set forth in each case only to the extent relating to the period after September 30, 2024, provided, however, that any such trade and other notes and accounts receivable that are, with respect to each of the aforementioned items, specifically related to the Business and received by Buyer after the termination of the Transition Services Agreement shall belong to BuyerSection 2.4;
(iif) all Inventory universal product codes, stationery, forms, labels, shipping material, catalogs, brochures, art work, photographs, advertising material and supplies that are, with respect to each of the aforementioned items, owned, used or held for use primarily in connection with the Business, including all inventory that is set forth on Section 2.1(a)(ii) of the Disclosure Schedules attached heretopromotional material;
(iiig) all equipmentpayments, machinery, tools, deposits and other components of residential solar systems, including PV Systems, and other tangible personal property of Seller that are, with respect to each prepaid expenses of the aforementioned items, used primarily in the Business, including the items set forth on Section 2.1(a)(iii) of the Disclosure Schedules (the “Tangible Personal Property”)Seller;
(ivh) all email accounts set forth on Section 2.1(a)(iv) of the Disclosure Schedules, including email address names that are used primarily in the Business and all email messages associated with such email accounts;
(v) all Permits, to the extent transferable, which are held by Seller and required specifically for the conduct of the Business as currently conducted or for the ownership and use of the Acquired Assets and not required for Seller to conduct any of its operations that are being retained;
(vi) all rights to any Proceeding of any nature available to or being pursued by Seller, to the extent related primarily to the Business, the other Acquired Assets or the Assumed Liabilities, whether arising by way of counterclaim or otherwise, in each case only to the extent relating to Assumed Liabilities or relating to the period after September 30, 2024;
(vii) all prepaid items and expenses (other than prepaid insurance premiums), credits, advance payments, claims, securitychoses-in-action, warranties, refunds, rights of recovery, rights of set-offoff and rights of recoupment of any kind (including any such item relating to the payment of Taxes other than income Taxes), but excluding any such claims, choses-in-action, warranties of refunds or rights of recovery, rights of recoupment, deposits, charges, sums and fees that are, with respect to each setoff or rights of the aforementioned items, primarily related recoupment to the Business;
(viii) all of Seller’s rights under warranties (including installer warranties), indemnities extent relating to Excluded Liabilities and all similar rights against third parties to the extent, with respect to each of the aforementioned items, related primarily not otherwise relating to any of the other Acquired Assets or the Assumed Liabilities;
(ixi) all lists, records rights and other information pertaining to suppliers and customers, all lists, records and other information pertaining to accounts, referral sources, all drawings, plats, specifications, reports, studies, plans, books, ledgers, files, documents, correspondence and business and accounting materials, all advertising, marketing and promotional materials, and all other printed or written materials, in each case owned, maintained or in the custody or control of Seller that, with respect to each claims of the aforementioned itemsSeller, relate primarily under insurance policies providing coverage relating to the Business, the Acquired Assets or and/or the Assumed Liabilities, but excluding any rights and/or claims to the extent covering Excluded Liabilities and not otherwise relating to any Acquired Assets or Assumed Liabilities;
(j) all Permits, including those Permits which are listed on Schedule 5.9;
(k) all rights to the telephone and telecopy numbers, e-mail addresses, websites, domain names and listings used in each case whether or not evidenced in writingthe Business, electronic data or otherwise as well as all rights to receive mail and other communications addressed to the Seller and relating to the Business (including mail and communications from customers, suppliers, distributors, agents and others and payments with respect to the “Books and Records”Acquired Assets);
(xl) all Contracts existing books, records, ledgers, files, documents and correspondence, lists, drawings, specifications, studies, reports, advertising and promotional materials and other printed or used primarily in connection with the Business written materials relating to which Seller or any of its Subsidiaries is a party that are (1) Material Contracts, (2) Project Contracts, (3) set forth on Section 2.1(a)(x) of the Disclosure Schedules, (4) Customer Agreements, or (5) expressly referenced in other subsections of this Section 2.1(a) to the extent, with respect to each of the aforementioned items, used primarily in connection with the Business (collectivelyprovided that the Buyer shall provide to the Seller access to copies of the foregoing (and/or access to originals thereof, if reasonably necessary) upon request to the “Assigned Contracts” it being understood that Assigned Contracts shall in no event include extent related to Excluded ContractsAssets or Excluded Liabilities);
(xi) all SRECs generated by the Projects on and after October 1, 2024 and all TRECs and SREC-IIs generated on and after October 1, 2024; and
(xiim) all other assets of Seller’s rightany nature whatsoever owned, titleleased, benefit and interest in and licensed or used by the Seller relating to the warranties and indemnities under Business or the Installer Agreement associated with each additional Project sold by Seller to Buyer under Section 5.10 (“Warranty Rights”), including Seller’s right to receive Acquired Assets other than the benefits of and to make claims under the Warranty Rights, subject, in each instance, to the limitations, conditions, exclusion of liabilities and disclaimers described in such Installer AgreementExcluded Assets.
Appears in 1 contract
Acquired Assets. Upon At the terms Closing and subject to the terms and conditions set forth in of this Agreement, at the Closing, Seller will sell, convey, assign, transfer and deliver to Buyer, and Buyer shall purchase from Seller, and Seller shall sell, transfer, assign, convey and deliver, or cause to be sold, transferred, assigned, conveyed and delivered, to Buyer, all of Seller’s right, title and interest in and to all of the assets set forth belowwhether real, including personal and mixed, tangible or intangible, used directly or indirectly by Seller in or otherwise relating to the Business as owned or held by Seller, except as expressly excluded in Section 1.2 (all such assets and rights being purchased hereunder are collectively referred to as the "Acquired Assets"). Without in any way limiting the generality of the foregoing, the Acquired Assets shall include all of Seller's right, title and interest in and to the Projects following, wherever located, as of the Closing Date:
(a) all accounts receivables related to the Business (the "Acquired Accounts Receivables");
(b) all finished goods, works-in-process, raw materials, parts and other items of inventory and supplies wherever located which are owned by Seller as of the Closing Date (the "Inventories");
(c) all furniture, equipment, fixtures and computer hardware;
(d) all of Seller's customer lists, customer mailing lists and customer sales files which are used in connection with the operation of the Business;
(e) all of Seller's interest and rights in and to the agreements, contracts and commitments to which Seller is a party or by which its assets are bound (except for those agreements, contracts and commitments of Seller's subsidiaries, which are addressed separately pursuant to Section 1.1(g) hereof) and all sale orders entered into or received by Seller in the Ordinary Course and such other agreements of Seller to the extent assignable to Buyer (collectively, the “Acquired Assets”):"Seller Contracts");
(f) all computer software and programs and any rights thereto associated with or employed in the conduct of the Business of Seller, except to the extent that any such documents are subject to confidentiality agreements limiting their release and the Seller shall not have obtained consent to their release;
(g) all of Seller's interest and rights in and to the outstanding common stock and other securities of each of its subsidiaries;
(h) all payments, deposits and prepaid expenses;
(i) all trade right, title, and interest in and to the name "Evoke Software Corporation" and any and all names associated with all products sold by Seller, and any derivations thereof;
(j) the assets of any employee benefit plan;
(k) all Permits (to the extent the same are transferable) directly or indirectly relating primarily to the Business;
(l) all of Seller's business and marketing records, including copies of accounting and operating records, asset ledgers, inventory records, budgets, customer lists, supplier lists, information and data respecting leased or owned equipment, correspondence, and other notes and accounts receivable that are, with respect to each of the aforementioned items, specifically business records directly related to the BusinessSeller's Business or Seller's Acquired Assets (except for those records held by Seller's subsidiaries, which are addressed separately pursuant to Section 1.1(g) hereof), in each case only to whatever form they exist;
(m) all cash on hand, cash equivalents, including, without limitation, certificates of deposit and deposits, bank and money market accounts, and securities of Seller, except for the extent relating to the period after September 30Excluded Cash;
(n) all original books, 2024financial records and ledgers of Seller (other than tax returns, minute books and stock records; provided, however, that such materials, as they relate to the Acquired Assets, will be made available for inspection and copying by Buyer upon request) including any such trade and other notes and accounts receivable that arerecords which are maintained in electronic form, with respect including but not limited to each of the aforementioned items, specifically related to the Business and received by Buyer after the termination of the Transition Services Agreement shall belong to Buyeron computer;
(iio) all Inventory and supplies that are, with respect to each Intellectual Property of the aforementioned items, owned, used or held for use primarily in connection with the Business, including all inventory that is set forth on Section 2.1(a)(ii) of the Disclosure Schedules attached heretoSeller;
(iiip) all equipment, machinery, tools, bulk mail postal and other components mail delivery authorizations agreements and related Permits of residential solar systems, including PV Systems, and other tangible personal property of Seller that are, with respect to each of the aforementioned items, used primarily in the Business, including the items set forth on Section 2.1(a)(iii) of the Disclosure Schedules (the “Tangible Personal Property”)Seller;
(ivq) all email accounts set forth on Section 2.1(a)(iv) of the Disclosure Schedules, including email address names that are used primarily in the Business and all email messages associated with such email accounts;
(v) all Permits, to the extent transferable, which are held by Seller and required specifically for the conduct of the Business as currently conducted or for the ownership and use of the Acquired Assets and not required for Seller to conduct any of its operations that are being retained;
(vi) all rights to any Proceeding of any nature available to or being pursued by Seller, to the extent related primarily to the Business, the other Acquired Assets or the Assumed Liabilities, whether arising by way of counterclaim or otherwise, in each case only to the extent relating to Assumed Liabilities or relating to the period after September 30, 2024;
(vii) all prepaid items and expenses (other than prepaid insurance premiums), credits, advance payments, claims, securitychoses-in-action, warranties, refunds, rights of recovery, rights of set-off, off and rights of recoupment, deposits, charges, sums and fees that are, with respect to each recoupment of the aforementioned items, primarily related any kind relating to the Business;
(viii) all payment of Seller’s rights under warranties (including installer warranties), indemnities and all similar rights against third parties to the extent, with respect to each of the aforementioned items, related primarily to any of the other Acquired Assets or the Assumed Liabilities;
(ix) all lists, records and other information pertaining to suppliers and customers, all lists, records and other information pertaining to accounts, referral sources, all drawings, plats, specifications, reports, studies, plans, books, ledgers, files, documents, correspondence and business and accounting materials, all advertising, marketing and promotional materials, and all other printed or written materials, in each case owned, maintained or in the custody or control Taxes of Seller that, with respect to each of the aforementioned items, relate primarily to the Business, the Acquired Assets or the Assumed Liabilities, and in each case whether or not evidenced in writing, electronic data or otherwise (the “Books and Records”);
(x) all Contracts existing or used primarily in connection with and/or the Business to which Seller or any of its Subsidiaries is a party that are (1) Material Contracts, (2) Project Contracts, (3) set forth on Section 2.1(a)(x) of for periods after the Disclosure Schedules, (4) Customer Agreements, or (5) expressly referenced in other subsections of this Section 2.1(a) to the extent, with respect to each of the aforementioned items, used primarily in connection with the Business (collectively, the “Assigned Contracts” it being understood that Assigned Contracts shall in no event include Excluded Contracts);
(xi) all SRECs generated by the Projects on and after October 1, 2024 and all TRECs and SREC-IIs generated on and after October 1, 2024Closing Date; and
(xiir) all of Seller’s right, title, benefit mail or other communications addressed to Seller and interest in and directly relating to the warranties and indemnities under the Installer Agreement associated with each additional Project sold by Seller to Buyer under Section 5.10 (“Warranty Rights”), including Seller’s right to receive the benefits of and to make claims under the Warranty Rights, subject, in each instance, to the limitations, conditions, exclusion of liabilities and disclaimers described in such Installer AgreementBusiness.
Appears in 1 contract
Sources: Asset Purchase Agreement (Conversion Services International Inc)
Acquired Assets. Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, Seller will sell, convey, assign, transfer and deliver to Buyer, and Buyer The Acquired Assets shall purchase from Seller, all consist of Seller’s right, title and interest in and to all of the assets set forth belowowned or used by Seller in the conduct of the Business (wherever located and whether or not reflected on the books and records of Seller and whether or not carried in the name of Seller), expressly excluding (i) the Retained Assets, including all of any assets referred to in Section 2.1(b)(xvi) to be used for Services to be provided to Buyer by Parent pursuant to the Projects Transition Services Agreement, and (ii) any assets used by Seller in the Business that are owned or held by Buyer and provided to Seller pursuant to an Operating Agreement, but expressly including the following property, rights and interests (collectively, the “Acquired Assets”):
(i) the intangible rights and properties of Seller, including all trade and other notes and accounts receivable that areIntellectual Property listed on Schedule 2.1(a)(i) which is held by Seller for use in connection with the Business (it being understood that, with respect to each of the aforementioned items, specifically related to the Business, in each case only to the extent relating to the period after September 30, 2024, provided, however, that any such trade and other notes and accounts receivable that areIntellectual Property is Seller Licensed Intellectual Property, with respect to each only such license or right shall be an Acquired Asset), all of the aforementioned itemsSeller Credit Data, specifically related to the Business all other data and received information held by Buyer after the termination of the Transition Services Agreement shall belong to Buyer;
(ii) all Inventory and supplies that are, with respect to each of the aforementioned items, owned, used or held Seller for use primarily in connection with the Business, whether or not maintained on Buyer’s network or system, including all inventory that is set forth on Section 2.1(a)(ii) data related to consumer claims or consumer disclosures, and all goodwill and going concern value of the Disclosure Schedules attached heretoBusiness, and all “800”, “888” and other toll-free and local telephone numbers of the Business;
(ii) without limiting Section 5.7(b), all Contracts of Seller relating to the Business, including those listed on Schedule 2.1(a)(ii), as such Contracts may be updated or amended after the date hereof in the Ordinary Course of Business, but specifically excluding the Operating Agreements (the “Assigned Contracts”), and all customer lists, account records and other information and documentation relating to customers or other counterparties under any Assigned Contract, together with all goodwill related to the customers or other counterparties under such Assigned Contracts;
(iii) all equipment, machineryfixtures, toolsfurniture, computers, terminals and other components of residential solar computer hardware and systems, including PV Systems, supplies and other tangible personal property of owned by Seller that are, and used or held for use in connection with respect to each of the aforementioned items, used primarily in the Business, including the items set forth those listed on Section Schedule 2.1(a)(iii) of the Disclosure Schedules (the “Tangible Personal Property”);
(iv) all email accounts set forth on Section 2.1(a)(iv) Accounts Receivable of Seller as of the Disclosure SchedulesClosing Date, including email address names that are used primarily Accounts Receivable owed by Buyer or any of its Affiliates to Seller, which Accounts Receivable will be reflected in the Business and all email messages associated with such email accountsFinal Closing Date Working Capital Schedule (“Closing Date Account Receivables”);
(v) all Permitsrights to any advance payment, prepaid rentals, deposits and other prepaid expenses, rights of offset, credit and claims for refund relating to the extent transferable, which are held by Seller and required specifically for Assigned Contracts or the conduct of the Business as currently conducted or for the ownership and use of the Acquired Assets and not required for Seller to conduct any of its operations that are being retainedBusiness;
(vi) all rights to any Proceeding of any nature available to or being pursued by Seller, to the extent related primarily to permitted by any applicable Legal Requirement, all Permits and other authorizations of Seller used or held for use in the Business, the other Acquired Assets or the Assumed Liabilities, whether arising by way of counterclaim or otherwise, in each case only to the extent relating to Assumed Liabilities or relating to the period after September 30, 2024;
(vii) all prepaid items and expenses (other than prepaid insurance premiumssubject to Section 2.2(b), creditsall warranties, advance paymentsindemnities, rights and claims, securitycounterclaims, refundsdemands, lawsuits, judgments, right and causes of action of any nature (whether contingent or absolute, matured or unmatured, known or unknown, c▇▇▇▇▇ or inchoate, and whether in tort, contract or otherwise) against any Person, including any Encumbrances, judgments, causes of action and rights of recovery, rights of set-off, rights of recoupment, deposits, charges, sums and fees that are, with respect the right to each of the aforementioned items, primarily related to the Business;
(viii) all of Seller’s rights under warranties (including installer warranties), indemnities receive and all similar rights against third parties to the extent, with respect to each of the aforementioned items, related primarily to any of the other Acquired Assets or the Assumed Liabilities;
(ix) all lists, records retain mail and other information pertaining to suppliers written communications received after the Closing Date and customers, all lists, records and other information pertaining to accounts, referral sources, all drawings, plats, specifications, reports, studies, plans, books, ledgers, files, documents, correspondence and business and accounting materials, all advertising, marketing and promotional materials, and all other printed or written materials, in each case owned, maintained or in the custody or control of Seller that, with respect to each of the aforementioned items, relate primarily directly relating to the Business, the Acquired Assets and/or the Assumed Obligations (it being agreed that any mail or other written communications relating to the Retained Assets and the Retained Obligations will be promptly remitted to Parent and Seller);
(viii) the Seller’s files, books and records (or, in Seller’s discretion, copies of any thereof) directly relating to the Acquired Assets or the Assumed LiabilitiesBusiness (to the extent permitted by any Legal Requirement), including, to the extent they exist, maintenance and repair records, plans and drawings;
(ix) to the extent in each case Seller’s possession or control and still in existence, all project plans, budgets, schedules, deliverables (whether complete or not evidenced in writingincomplete) and other documentation relating to past, electronic data present or otherwise (future Credit Services provided by the “Books and Records”)Business;
(x) all Contracts existing leases or used primarily in connection with the Business subleases of tangible Personal Property set forth on Schedule 2.1(a)(x)(1) hereto as to which Seller is the lessor or any sublessor and all leases of its Subsidiaries is a party that are (1) Material Contracts, (2) Project Contracts, (3) tangible Personal Property set forth on Section 2.1(a)(xSchedule 2.1(a)(x)(2) of hereto as to which Seller is the Disclosure Scheduleslessee or sublessee, (4) Customer Agreements, in each case together with any contractual options to purchase or (5) expressly referenced in other subsections of this Section 2.1(a) to sell the extent, with respect to each of the aforementioned items, used primarily in connection with the Business (collectively, the “Assigned Contracts” it being understood that Assigned Contracts shall in no event include Excluded Contracts)underlying property;
(xi) all SRECs generated by of the Projects leases or subleases of Leasehold Property set forth on and after October 1Schedule 2.1(a)(xi)(1) hereto as to which Seller is the lessor or sublessor, 2024 and all TRECs leases and SREC-IIs generated subleases of real property set forth on Schedule 2.1(a)(xi)(2) hereto as to which Seller is the lessee or sublessee, in each case together with any contractual options of Seller to purchase the underlying property, and after October 1all leasehold improvements thereon owned by Seller and all other Seller rights, 2024; andsubleases, licenses, interests and rights appurtenant thereto or related to such leases and subleases;
(xii) all lock boxes and safe deposit boxes of Seller’s right, title, benefit and interest Seller used in and the Business;
(xiii) the proceeds of any insurance policy that is payable with respect to a Specified FCRA Claim to the warranties and indemnities under the Installer Agreement associated with each additional Project sold by Seller extent Buyer is responsible therefor pursuant to Buyer under Section 5.10 10.4; and
(“Warranty Rights”), including Seller’s right to receive the benefits of and to make claims under the Warranty Rights, subject, in each instance, xiv) except to the limitationsextent disposed of since the date of such balance sheet in the Ordinary Course of Business, conditionsall other assets, exclusion of liabilities properties and disclaimers described rights reflected on the September 30, 2012 balance sheet contained in such Installer Agreementthe Interim Financial Statements.
Appears in 1 contract
Acquired Assets. Upon the terms and subject to the conditions of this Agreement (including the exclusions set forth in this AgreementSection 1.2), at on the ClosingClosing Date, Seller will the Sellers shall sell, conveytransfer, assign, transfer convey and deliver to Buyerthe Buyer Sub, and the Buyer Sub shall purchase from Sellerthe Sellers, free and clear of all Encumbrances (except for Permitted Encumbrances), all of Seller’s the Sellers’ right, title and interest to the assets and properties of the Sellers of every kind and description (other than those being conveyed contemporaneously pursuant to the UK Asset Purchase Agreement, the EU Stock Purchase Agreement or that are Excluded Assets), wherever located, real, personal or mixed, tangible or intangible, currently used in connection with the Diagnostics Business (herein collectively called the “Acquired Assets”), including all right, title and interest of the Sellers in, to and under:
(a) all of the assets machinery, equipment, tools, spare parts, supplies, vehicles, furniture, materials and other personal property owned or leased (as specified in Schedule 1.1(a) hereto) by the Sellers or located in or fixed to the Real Property, including, without limitation, those items described on Schedule 1.1(a) hereto with such additions thereto and deletions therefrom as may hereafter arise in the ordinary course of business prior to the Closing consistent with the Seller’s obligations under Article 8 hereof (the “Equipment”).
(b) all contracts, agreements, understandings, commitments, leases, licenses, instruments, purchase orders (whether or not such purchase orders have been acknowledged by the counterparty and whether or not such purchase orders have been executed by the issuing entity), guaranties, bids, proposals, licenses, sublicenses, assignments and indemnities listed on Schedule 1.1(b) hereto, all unfilled orders relating to such contracts set forth below, including all on Schedule 1.1(b) outstanding as of the Projects Closing Date for the purchase of raw materials, goods or services by the Sellers (a schedule of which shall be delivered by the Sellers to the Buyer on the Closing Date and, in draft form, at least five business days in advance thereof), and all unfilled orders outstanding as of the Closing Date for the sale of goods or services by the Sellers (collectively, the “Acquired Assets”):
(i) all trade and other notes and accounts receivable that are, with respect to each of the aforementioned items, specifically related to the Business, in each case only to the extent relating to the period after September 30, 2024, provided, however, that any such trade and other notes and accounts receivable that are, with respect to each of the aforementioned items, specifically related to the Business and received by Buyer after the termination of the Transition Services Agreement shall belong to Buyer;
(ii) all Inventory and supplies that are, with respect to each of the aforementioned items, owned, used or held for use primarily in connection with the Business, including all inventory that is set forth on Section 2.1(a)(ii) of the Disclosure Schedules attached hereto;
(iii) all equipment, machinery, tools, and other components of residential solar systems, including PV Systems, and other tangible personal property of Seller that are, with respect to each of the aforementioned items, used primarily in the Business, including the items set forth on Section 2.1(a)(iii) of the Disclosure Schedules (the “Tangible Personal PropertyContracts”);
(iv) all email accounts set forth on Section 2.1(a)(iv) of the Disclosure Schedules, including email address names that are used primarily in the Business and all email messages associated with such email accounts;
(v) all Permits, to the extent transferable, which are held by Seller and required specifically for the conduct of the Business as currently conducted or for the ownership and use of the Acquired Assets and not required for Seller to conduct any of its operations that are being retained;
(vi) all rights to any Proceeding of any nature available to or being pursued by Seller, to the extent related primarily to the Business, the other Acquired Assets or the Assumed Liabilities, whether arising by way of counterclaim or otherwise, in each case only to the extent relating to Assumed Liabilities or relating to the period after September 30, 2024;
(vii) all prepaid items and expenses (other than prepaid insurance premiums), credits, advance payments, claims, security, refunds, rights of recovery, rights of set-off, rights of recoupment, deposits, charges, sums and fees that are, with respect to each of the aforementioned items, primarily related to the Business;
(viii) all of Seller’s rights under warranties (including installer warranties), indemnities and all similar rights against third parties to the extent, with respect to each of the aforementioned items, related primarily to any of the other Acquired Assets or the Assumed Liabilities;
(ix) all lists, records and other information pertaining to suppliers and customers, all lists, records and other information pertaining to accounts, referral sources, all drawings, plats, specifications, reports, studies, plans, books, ledgers, files, documents, correspondence and business and accounting materials, all advertising, marketing and promotional materials, and all other printed or written materials, in each case owned, maintained or in the custody or control of Seller that, with respect to each of the aforementioned items, relate primarily to the Business, the Acquired Assets or the Assumed Liabilities, and in each case whether or not evidenced in writing, electronic data or otherwise (the “Books and Records”);
(x) all Contracts existing or used primarily in connection with the Business to which Seller or any of its Subsidiaries is a party that are (1) Material Contracts, (2) Project Contracts, (3) set forth on Section 2.1(a)(x) of the Disclosure Schedules, (4) Customer Agreements, or (5) expressly referenced in other subsections of this Section 2.1(a) to the extent, with respect to each of the aforementioned items, used primarily in connection with the Business (collectively, the “Assigned Contracts” it being understood that Assigned Contracts shall in no event include Excluded Contracts);
(xi) all SRECs generated by the Projects on and after October 1, 2024 and all TRECs and SREC-IIs generated on and after October 1, 2024; and
(xii) all of Seller’s right, title, benefit and interest in and to the warranties and indemnities under the Installer Agreement associated with each additional Project sold by Seller to Buyer under Section 5.10 (“Warranty Rights”), including Seller’s right to receive the benefits of and to make claims under the Warranty Rights, subject, in each instance, to the limitations, conditions, exclusion of liabilities and disclaimers described in such Installer Agreement.
Appears in 1 contract
Acquired Assets. Upon Subject to the terms and subject to the conditions set forth in this Agreement, at as of the ClosingCut-Off Date (subject to the occurrence of the Closing referred to in Section 4 hereof), Seller will the Sellers shall sell, convey, assignassign or procure the assignment, transfer and deliver to the Buyer or to its order, and the Buyer, for itself or for or on behalf and Buyer for BOScom and DHP shall purchase from Sellerpurchase, all of Seller’s rightacquire and take assignment and delivery of, title and interest in and to all of the assets set forth belowand rights of the Sellers relating to, including or used in connection with, the Business, together with those related obligations specifically detailed herein (all of the Projects (collectivelywhich assets, rights and certain obligations are hereinafter referred to collectively as the “Acquired Assets”):), including, without limitation, the following assets, rights and obligations:
(ia) Any and all trade fixtures, machinery, installations, equipment (including, without limitation, all production equipment), hardware, software, furniture, tools, spare parts, supplies, materials, product lines, fixed assets, and other notes and accounts receivable that arepersonal property relating to, with respect to each or used in connection with, the Sellers’ Business and/or the Sellers’ conduct of the aforementioned items, specifically related to the Business, as described on Schedule 1.1(a), and those certain related obligations thereto specified and detailed in said Schedule and all related rights thereto (the “Equipment”);
(b) All of Sellers’ rights under the purchase orders, service and support agreements and any other or additional contracts and agreements described on Schedule 1.1(b) hereto (which each case only Seller represents to the extent relating to the period after September 30, 2024, provided, however, that any such trade and other notes and accounts receivable that are, with respect to each constitute all of the aforementioned itemspurchase orders, specifically service and support agreements of the Sellers related to the Business and received by Buyer after their Business activity), and those certain related obligations under the termination contracts and agreements in Schedule 1.1(b), all of which are in force and effect as of the Transition Services Agreement shall belong to Buyer;
(ii) Cut-Off Date, and all Inventory rights and supplies that areobligations under all other agreements, with respect to each of the aforementioned itemsSellers entered into in the ordinary course of business following the Cut-Off Date but prior to the Closing, owned, used or held for use primarily in connection consistent with the BusinessSellers’ obligations under Section 8 hereof (the purchase orders, including all inventory that is set forth on Section 2.1(a)(ii) of the Disclosure Schedules attached hereto;
(iii) all equipment, machinery, toolsservice and support agreements, and other components of residential solar systems, including PV Systems, contracts and other tangible personal property of Seller that are, with respect agreements shall be referred to each of the aforementioned items, used primarily in the Business, including the items set forth on Section 2.1(a)(iii) of the Disclosure Schedules (this Agreement collectively as the “Tangible Personal PropertyAssumed Contracts”);
(iv) all email accounts set forth on Section 2.1(a)(iv) of the Disclosure Schedules, including email address names that are used primarily in the Business and all email messages associated with such email accounts;
(v) all Permits, to the extent transferable, which are held by Seller and required specifically for the conduct of the Business as currently conducted or for the ownership and use of the Acquired Assets and not required for Seller to conduct any of its operations that are being retained;
(vi) all rights to any Proceeding of any nature available to or being pursued by Seller, to the extent related primarily to the Business, the other Acquired Assets or the Assumed Liabilities, whether arising by way of counterclaim or otherwise, in each case only to the extent relating to Assumed Liabilities or relating to the period after September 30, 2024;
(vii) all prepaid items and expenses (other than prepaid insurance premiums), credits, advance payments, claims, security, refunds, rights of recovery, rights of set-off, rights of recoupment, deposits, charges, sums and fees that are, with respect to each of the aforementioned items, primarily related to the Business;
(viii) all of Seller’s rights under warranties (including installer warranties), indemnities and all similar rights against third parties to the extent, with respect to each of the aforementioned items, related primarily to any of the other Acquired Assets or the Assumed Liabilities;
(ix) all lists, records and other information pertaining to suppliers and customers, all lists, records and other information pertaining to accounts, referral sources, all drawings, plats, specifications, reports, studies, plans, books, ledgers, files, documents, correspondence and business and accounting materials, all advertising, marketing and promotional materials, and all other printed or written materials, in each case owned, maintained or in the custody or control of Seller that, with respect to each of the aforementioned items, relate primarily to the Business, the Acquired Assets or the Assumed Liabilities, and in each case whether or not evidenced in writing, electronic data or otherwise (the “Books and Records”);
(x) all Contracts existing or used primarily in connection with the Business to which Seller or any of its Subsidiaries is a party that are (1) Material Contracts, (2) Project Contracts, (3) set forth on Section 2.1(a)(x) of the Disclosure Schedules, (4) Customer Agreements, or (5) expressly referenced in other subsections of this Section 2.1(a) to the extent, with respect to each of the aforementioned items, used primarily in connection with the Business (collectively, the “Assigned Contracts” it being understood that Assigned Contracts shall in no event include Excluded Contracts);
(xi) all SRECs generated by the Projects on and after October 1, 2024 and all TRECs and SREC-IIs generated on and after October 1, 2024; and
(xii) all of Seller’s right, title, benefit and interest in and to the warranties and indemnities under the Installer Agreement associated with each additional Project sold by Seller to Buyer under Section 5.10 (“Warranty Rights”), including Seller’s right to receive the benefits of and to make claims under the Warranty Rights, subject, in each instance, to the limitations, conditions, exclusion of liabilities and disclaimers described in such Installer Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Bos Better Online Solutions LTD)
Acquired Assets. Upon the terms On and subject to the terms and conditions set forth in of this Agreement, at the Closing, Seller will sell, convey, assign, transfer and deliver to Buyer, and the Buyer shall purchase from the Seller, and the Seller shall sell, transfer, assign, convey and deliver to the Buyer, all of Seller’s right, title and interest of the Seller in and to all of the assets set forth belowtangible and intangible assets, including all business, goodwill and rights of the Projects Seller used in, arising out of, or related to, the Business, other than the Excluded Assets (collectivelyall such assets, business, goodwill and rights being purchased hereunder are collectively referred to as the “Acquired Assets”), as the same shall exist immediately prior to the Closing, free and clear of all Liens, including, without limitation, the following (to the extent used in, arising out of, or related to, the Business):
(ia) all trade machinery, equipment, tooling, dies and other notes and accounts receivable that are, with respect to each molds (whether located at the facilities of the aforementioned itemsSeller or at other locations), specifically furniture, fixtures, demonstration units, trade show booths and related to the Business, in each case only to the extent relating to the period after September 30, 2024, provided, however, that any such trade and other notes and accounts receivable that are, with respect to each of the aforementioned items, specifically related to the Business and received by Buyer after the termination of the Transition Services Agreement shall belong to Buyer;
(ii) all Inventory and supplies that are, with respect to each of the aforementioned items, owned, used or held for use primarily in connection with the Business, including all inventory that is set forth on Section 2.1(a)(ii) of the Disclosure Schedules attached hereto;
(iii) all equipment, machinery, tools, and other components of residential solar systems, including PV Systems, and other tangible personal property of Seller that arelisted on Schedule 1.1(a) on an “as is” basis;
(b) all (i) production equipment including purchase information, with respect to each of the aforementioned itemsoperator manuals and service records, including warranties, if applicable; (ii) tools, molds, materials (for example, non-inventory, indirect supplies); and (iii) testing equipment required for quality control used primarily exclusively in the Business, including ;
(c) All software and computer hardware required for manufacturing the items Misonix Fume Products currently manufactured by the Seller in the Business;
(d) all Intellectual Property set forth on Section 2.1(a)(iii) Schedule 1.1(d), the goodwill associated therewith, licenses and sublicenses granted or obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the Disclosure Schedules Laws of all jurisdictions, and all rights granted to the Buyer under the Trademark License Agreement (the “Tangible Personal Fume Intellectual Property”), subject to the limitations set forth in Section 2.4;
(ive) to the extent that the same are assignable, unfulfilled purchase orders entered into with suppliers listed on Schedule 1.1(e), licenses, commitments, plans, instruments, arrangements, understandings and proposals, documents (whether of real or personal property) (including, without limitation, any such agreements, contracts, licenses, commitments, and documents listed on Schedule 3.13), including all email accounts amendments and supplements thereto (collectively, the “Contracts”) subject to the limitations set forth on in Section 2.1(a)(iv) of the Disclosure Schedules, including email address names that are used primarily in the Business and all email messages associated with such email accounts2.4;
(vf) all Permits, to the extent transferable, which are held by Seller and required specifically for the conduct of the Business as currently conducted or for the ownership and use of the Acquired Assets and not required for Seller to conduct any of its operations that are being retained;
(vi) all rights to any Proceeding of any nature available to or being pursued by Seller, to the extent related primarily to the Business, the other Acquired Assets or the Assumed Liabilities, whether arising by way of counterclaim or otherwise, in each case only to the extent relating to Assumed Liabilities or relating to the period after September 30, 2024;
(vii) all prepaid items and expenses (other than prepaid insurance premiums), credits, advance payments, claims, securitychoses-in-action, warranties, refunds, rights of recovery, rights of set-off, off and rights of recoupmentrecoupment set forth on Schedule 1.1(f);
(g) to the extent that the same are assignable, depositsall Permits, chargesincluding those Permits which are listed on Schedule 3.8;
(h) except as otherwise provided in the Transition and Manufacturing Services Agreement, sums all rights to receive mail, email, faxes and fees that areother communications addressed to the Seller and relating to the Business (including communications from customers, suppliers, distributors, agents and others and payments with respect to each the Acquired Assets), all of the aforementioned items, primarily related which shall be forwarded to the BusinessBuyer for a period of (x) one (1) year from the Closing as to all but customers and (y) three (3) years from the Closing as to customers;
(viiii) except as otherwise provided in the Transition and Manufacturing Services Agreement, all of Seller’s rights under warranties (including installer warranties)records, indemnities files, documents and all similar rights against third parties to the extentcorrespondence, with respect to each of the aforementioned items, related primarily to any of the other Acquired Assets or the Assumed Liabilities;
(ix) all lists, records and other information pertaining to suppliers and customers, all lists, records and other information pertaining to accounts, referral sources, all drawings, plats, specifications, reportsbi▇▇ ▇f materials, manufacturing instructions, studies, plansreports, books, ledgers, files, documents, correspondence and business and accounting materials, all advertising, marketing advertising and promotional materials, and all other printed or written materials, in each case owned, maintained or materials relating to the Business currently in the custody or control Seller’s possession, including all electronic and printed copies of Seller that, with respect to each of the aforementioned items, relate primarily to the Business, the Acquired Assets or the Assumed Liabilities, and in each case whether or not evidenced in writing, electronic data or otherwise (the “Books and Records”)foregoing;
(xj) all Contracts existing or used primarily in connection with the Business to which Seller or any for a period of its Subsidiaries is a party that are (1) Material Contracts, (2) Project Contracts, three (3) set forth on Section 2.1(a)(x) years from the Closing, the rights to the name “Misonix” granted by the Trademark License Agreement but only in conjunction with and as part of the Disclosure Schedulesphrases “Forensic Products”, (4) Customer Agreements“Fume Enclosures”, or (5) expressly referenced in other subsections of this Section 2.1(a) “Aura” and “Ductless Fume Hoods” and with the same fume product that was made by the Seller immediately prior to the extent, with respect to each date hereof. For purposes of the aforementioned items, used primarily in connection with the Business (collectivelyclarification, the Buyer may not add the name “Assigned ContractsMisonix” it being understood to any fume product that Assigned Contracts shall in no event include Excluded Contracts);
(xi) all SRECs generated by did not have the Projects on and after October 1, 2024 and all TRECs and SREC-IIs generated on and after October 1, 2024; and
(xii) all word “MISONIX” as part of Seller’s right, title, benefit and interest in and its name immediately prior to the warranties and indemnities date hereof, provided, however, that the Buyer may market its products under the Installer Agreement associated with each additional Project sold by Seller “Mystaire/Misonix” trade name for a period of three (3) years after the Closing. The Buyer agrees to Buyer under Section 5.10 (use the words “Warranty Rights”), including Seller’s right to receive for gaseous and particulate containment” after the benefits of words “Mystaire/Misonix” in all written and to make claims under the Warranty Rights, subject, in each instance, to the limitations, conditions, exclusion of liabilities and disclaimers described in such Installer Agreement.printed marketing materials;
Appears in 1 contract
Acquired Assets. Upon Subject to the terms and subject to the conditions herein set forth in this Agreementforth, at the Closing, Seller will Sellers shall sell, assign, transfer, convey, assign, transfer and deliver to BuyerPurchaser free and clear of all Liens (other than the Permitted Liens), and Buyer Purchaser shall purchase and accept from SellerSellers, free and clear of all Liens (other than the Permitted Liens), all of Seller’s Sellers' right, title, and interest in, to, and under the following, as the same shall exist on the Closing Date (collectively, the "Acquired Assets"): except as provided in Section 2.1(b) below, all assets owned by Sellers, wherever located, whether real, personal, or mixed, tangible or intangible, which shall also include Sellers' (i) interests in joint ventures and other ownership interests or business arrangements (to the extent any required written consent(s) or approval(s) of the other joint venture members, partners, or other parties thereto are obtained), (ii) prepaid items in respect of the Acquired Assets, (iii) Inventory, (iv) rebate accounts receivable, including such rebate accounts receivable listed on Schedule 2.1(a)(iv) hereto (such Schedule to include the name of each payor and the corresponding amount owed with respect to such rebate), (v) Government Payment Program Proceeds, (vi) if any, the Included Mariner Receivables (as defined in Section 2.3(a)(iv) below), (vii) right, title and interest in and to all of the assets set forth belownames of Sellers and any variations thereof (including "American Pharmaceutical Services," "APS," and all corporate names, including fictitious names, product names and service names) (subject to Section 7.15 hereof), and (viii) Medicare Part B Business and Assets as it relates only to the provision of Medicare Part B Products and Services to Independent Facilities (the "Acquired Medicare Part B Business and Assets").
(a) are herein referred to as the "Selling Affiliates") to sell, assign, transfer, convey, and deliver to Purchaser at Closing free and clear of all Liens (other than the Permitted Liens), and Purchaser shall purchase and accept from such Selling Affiliate(s) free and clear of all Liens (other than the Permitted Liens), all of such Selling Affiliates' right, title, and interest in, to, and under the Projects assets identified in Schedule 2.1(a) hereto which are not owned by any Seller but which are used in the Acquired Business, as the same shall exist on the Closing Date (collectively, the “Acquired "Additional Assets”):
(i"). It is hereby understood and agreed that only the Additional Assets owned by the applicable Selling Affiliate identified in Schedule 2.1(a) all trade and other notes and accounts receivable that are, with respect hereto may be acquired pursuant to each of the aforementioned items, specifically related to the Business, in each case only to the extent relating to the period after September 30, 2024, provided, however, that any such trade and other notes and accounts receivable that are, with respect to each of the aforementioned items, specifically related to the Business and received by Buyer after the termination of the Transition Services Agreement shall belong to Buyer;
(ii) all Inventory and supplies that are, with respect to each of the aforementioned items, owned, used or held for use primarily in connection with the Business, including all inventory that is set forth on Section 2.1(a)(ii) of the Disclosure Schedules attached hereto;
(iii) all equipment, machinery, toolsthis Agreement, and no other components assets of residential solar systems, including PV Systems, and other tangible personal property of Seller that are, with respect to each of the aforementioned items, used primarily in the Business, including the items set forth on Section 2.1(a)(iii) of the Disclosure Schedules (the “Tangible Personal Property”);
(iv) all email accounts set forth on Section 2.1(a)(iv) of the Disclosure Schedules, including email address names that are used primarily in the Business and all email messages associated with such email accounts;
(v) all Permits, to the extent transferable, which are held by Seller and required specifically for the conduct of the Business as currently conducted or for the ownership and use of the Acquired Assets and not required for Seller to conduct any of its operations that are being retained;
(vi) all rights to any Proceeding of any nature available to or being pursued by Seller, to the extent related primarily to the Business, the other Acquired Assets or the Assumed LiabilitiesSelling Affiliate whatsoever, whether arising by way of counterclaim or otherwisereal, in each case only to the extent relating to Assumed Liabilities or relating to the period after September 30, 2024;
(vii) all prepaid items and expenses (other than prepaid insurance premiums), credits, advance payments, claims, security, refunds, rights of recovery, rights of set-off, rights of recoupment, deposits, charges, sums and fees that are, with respect to each of the aforementioned items, primarily related to the Business;
(viii) all of Seller’s rights under warranties (including installer warranties), indemnities and all similar rights against third parties to the extent, with respect to each of the aforementioned items, related primarily to any of the other Acquired Assets or the Assumed Liabilities;
(ix) all lists, records and other information pertaining to suppliers and customers, all lists, records and other information pertaining to accounts, referral sources, all drawings, plats, specifications, reports, studies, plans, books, ledgers, files, documents, correspondence and business and accounting materials, all advertising, marketing and promotional materials, and all other printed or written materials, in each case owned, maintained or in the custody or control of Seller that, with respect to each of the aforementioned items, relate primarily to the Business, the Acquired Assets or the Assumed Liabilities, and in each case whether or not evidenced in writing, electronic data or otherwise (the “Books and Records”);
(x) all Contracts existing or used primarily in connection with the Business to which Seller or any of its Subsidiaries is a party that are (1) Material Contracts, (2) Project Contracts, (3) set forth on Section 2.1(a)(x) of the Disclosure Schedules, (4) Customer Agreementspersonal, or (5) expressly referenced in other subsections of this Section 2.1(a) to the extentmixed, with respect to each of the aforementioned itemstangible or intangible, used primarily in connection with the Business (collectively, the “Assigned Contracts” it being understood that Assigned Contracts shall in no event include Excluded Contracts);
(xi) all SRECs generated be acquired by the Projects on and after October 1, 2024 and all TRECs and SREC-IIs generated on and after October 1, 2024; and
(xii) all of Seller’s right, title, benefit and interest in and to the warranties and indemnities under the Installer Agreement associated with each additional Project sold by Seller to Buyer under Section 5.10 (“Warranty Rights”), including Seller’s right to receive the benefits of and to make claims under the Warranty Rights, subject, in each instance, to the limitations, conditions, exclusion of liabilities and disclaimers described in such Installer AgreementPurchaser hereunder.
Appears in 1 contract
Sources: Asset Purchase Agreement (Genesis Health Ventures Inc /Pa)
Acquired Assets. Upon Subject to the terms and subject to the conditions herein set forth in this Agreementforth, at the Closing, Seller will Sellers shall sell, assign, transfer, convey, assign, transfer and deliver to BuyerPurchaser free and clear of all Liens (other than the Permitted Liens), and Buyer Purchaser shall purchase and accept from SellerSellers, free and clear of all Liens (other than the Permitted Liens), all of Seller’s Sellers' right, title, and interest in, to, and under the following, as the same shall exist on the Closing Date (collectively, the "Acquired Assets"): except as provided in Section 2.1(b) below, all assets owned by Sellers, wherever located, whether real, personal, or mixed, tangible or intangible, which shall also include Sellers' (i) interests in joint ventures and other ownership interests or business arrangements (to the extent any required written consent(s) or approval(s) of the other joint venture members, partners, or other parties thereto are obtained), (ii) prepaid items in respect of the Acquired Assets, (iii) Inventory, (iv) rebate accounts receivable, including such rebate accounts receivable listed on Schedule 2.1(a)(iv) hereto (such Schedule to include the name of each payor and the corresponding amount owed with respect to such rebate), (v) Government Payment Program Proceeds, (vi) if any, the Included Mariner Receivables (as defined in Section 2.3(a)(iv) below), (vii) right, title and interest in and to all of the assets set forth belownames of Sellers and any variations thereof (including "American Pharmaceutical Services," "APS," and all corporate names, including fictitious names, product names and service names) (subject to Section 7.14 hereof), and (viii) Medicare Part B Business and Assets as it relates only to the provision of Medicare Part B Products and Services to Independent Facilities (the "Acquired Medicare Part B Business and Assets").
(a) are herein referred to as the "Selling Affiliates") to sell, assign, transfer, convey, and deliver to Purchaser at Closing free and clear of all Liens (other than the Permitted Liens), and Purchaser shall purchase and accept from such Selling Affiliate(s) free and clear of all Liens (other than the Permitted Liens), all of such Selling Affiliates' right, title, and interest in, to, and under the Projects assets identified in Schedule 2.1(a) hereto which are not owned by any Seller but which are used in the Acquired Business, as the same shall exist on the Closing Date (collectively, the “Acquired "Additional Assets”):
(i"). It is hereby understood and agreed that only the Additional Assets owned by the applicable Selling Affiliate identified in Schedule 2.1(a) all trade and other notes and accounts receivable that are, with respect hereto may be acquired pursuant to each of the aforementioned items, specifically related to the Business, in each case only to the extent relating to the period after September 30, 2024, provided, however, that any such trade and other notes and accounts receivable that are, with respect to each of the aforementioned items, specifically related to the Business and received by Buyer after the termination of the Transition Services Agreement shall belong to Buyer;
(ii) all Inventory and supplies that are, with respect to each of the aforementioned items, owned, used or held for use primarily in connection with the Business, including all inventory that is set forth on Section 2.1(a)(ii) of the Disclosure Schedules attached hereto;
(iii) all equipment, machinery, toolsthis Agreement, and no other components assets of residential solar systems, including PV Systems, and other tangible personal property of Seller that are, with respect to each of the aforementioned items, used primarily in the Business, including the items set forth on Section 2.1(a)(iii) of the Disclosure Schedules (the “Tangible Personal Property”);
(iv) all email accounts set forth on Section 2.1(a)(iv) of the Disclosure Schedules, including email address names that are used primarily in the Business and all email messages associated with such email accounts;
(v) all Permits, to the extent transferable, which are held by Seller and required specifically for the conduct of the Business as currently conducted or for the ownership and use of the Acquired Assets and not required for Seller to conduct any of its operations that are being retained;
(vi) all rights to any Proceeding of any nature available to or being pursued by Seller, to the extent related primarily to the Business, the other Acquired Assets or the Assumed LiabilitiesSelling Affiliate whatsoever, whether arising by way of counterclaim or otherwisereal, in each case only to the extent relating to Assumed Liabilities or relating to the period after September 30, 2024;
(vii) all prepaid items and expenses (other than prepaid insurance premiums), credits, advance payments, claims, security, refunds, rights of recovery, rights of set-off, rights of recoupment, deposits, charges, sums and fees that are, with respect to each of the aforementioned items, primarily related to the Business;
(viii) all of Seller’s rights under warranties (including installer warranties), indemnities and all similar rights against third parties to the extent, with respect to each of the aforementioned items, related primarily to any of the other Acquired Assets or the Assumed Liabilities;
(ix) all lists, records and other information pertaining to suppliers and customers, all lists, records and other information pertaining to accounts, referral sources, all drawings, plats, specifications, reports, studies, plans, books, ledgers, files, documents, correspondence and business and accounting materials, all advertising, marketing and promotional materials, and all other printed or written materials, in each case owned, maintained or in the custody or control of Seller that, with respect to each of the aforementioned items, relate primarily to the Business, the Acquired Assets or the Assumed Liabilities, and in each case whether or not evidenced in writing, electronic data or otherwise (the “Books and Records”);
(x) all Contracts existing or used primarily in connection with the Business to which Seller or any of its Subsidiaries is a party that are (1) Material Contracts, (2) Project Contracts, (3) set forth on Section 2.1(a)(x) of the Disclosure Schedules, (4) Customer Agreementspersonal, or (5) expressly referenced in other subsections of this Section 2.1(a) to the extentmixed, with respect to each of the aforementioned itemstangible or intangible, used primarily in connection with the Business (collectively, the “Assigned Contracts” it being understood that Assigned Contracts shall in no event include Excluded Contracts);
(xi) all SRECs generated be acquired by the Projects on and after October 1, 2024 and all TRECs and SREC-IIs generated on and after October 1, 2024; and
(xii) all of Seller’s right, title, benefit and interest in and to the warranties and indemnities under the Installer Agreement associated with each additional Project sold by Seller to Buyer under Section 5.10 (“Warranty Rights”), including Seller’s right to receive the benefits of and to make claims under the Warranty Rights, subject, in each instance, to the limitations, conditions, exclusion of liabilities and disclaimers described in such Installer AgreementPurchaser hereunder.
Appears in 1 contract
Sources: Asset Purchase Agreement (Mariner Post Acute Network Inc)
Acquired Assets. Upon Subject to the terms and subject to the conditions set forth in this Agreement, at the ClosingClosing referred to in Section 4 hereof, the Seller will shall sell, convey, assign, transfer and deliver to the Buyer, and the Buyer shall purchase from Sellerpurchase, all of Seller’s rightacquire and take assignment and delivery of, title and interest in and to all of the assets set forth belowand rights of the Seller relating to, or used in connection with, the Business (all of which assets and rights are hereinafter referred to collectively as the "ACQUIRED ASSETS"), including, without limitation, the following assets and rights:
(a) Any and all fixtures, machinery, installations, equipment (including, without limitation, all production equipment), hardware, software, furniture, tools, spare parts, supplies, materials, product lines, fixed assets, and other personal property relating to, or used in connection with, the Seller's conduct of the Business, including those items described on SCHEDULE 1.1(A) (the "EQUIPMENT");
(b) All of the Seller's assignable rights and obligations under the purchase orders, contracts and agreements described on SCHEDULE 1.1(B) hereto (which Seller represents to constitute all of the Projects (collectivelypurchase orders, the “Acquired Assets”):
(i) all trade contracts and other notes and accounts receivable that are, with respect to each agreements of the aforementioned items, specifically related to the Business, in each case only to the extent relating to the period after September 30, 2024, provided, however, that any such trade and other notes and accounts receivable that are, with respect to each of the aforementioned items, specifically Seller related to the Business and received by Buyer after the termination its activity, which are currently in force and effect), and under all other purchase orders, contracts and agreements of the Transition Services Agreement shall belong Seller entered into in the ordinary course of business following the date hereof but prior to Buyer;
(ii) all Inventory and supplies that arethe Closing, with respect to each of the aforementioned items, owned, used or held for use primarily in connection consistent with the Business, including all inventory that is set forth on Seller's obligations under Section 2.1(a)(ii) of the Disclosure Schedules attached hereto;
(iii) all equipment, machinery, tools, and other components of residential solar systems, including PV Systems, and other tangible personal property of Seller that are, with respect to each of the aforementioned items, used primarily in the Business, including the items set forth on Section 2.1(a)(iii) of the Disclosure Schedules 7 hereof (the “Tangible Personal Property”purchase orders, contracts and agreements referred to in this paragraph (b) being referred to collectively as the "OTHER CONTRACTS");
(ivc) all email accounts set forth on Section 2.1(a)(iv) All of the Disclosure SchedulesSeller's rights under license agreements pursuant to which the Seller has been granted, including email address names that are used primarily in and holds, a license (the Business and "LICENSE AGREEMENTS"); all email messages associated with such email accounts;
(v) all Permits, to the extent transferable, which are held by Seller and required specifically for the conduct of the Business as currently conducted or for the ownership and use of the Acquired Assets and not required for Seller to conduct any of its operations that License Agreements are being retained;
(vi) all rights to any Proceeding of any nature available to or being pursued by Seller, to the extent related primarily to the Business, the other Acquired Assets or the Assumed Liabilities, whether arising by way of counterclaim or otherwise, in each case only to the extent relating to Assumed Liabilities or relating to the period after September 30, 2024;
(vii) all prepaid items and expenses (other than prepaid insurance premiums), credits, advance payments, claims, security, refunds, rights of recovery, rights of set-off, rights of recoupment, deposits, charges, sums and fees that are, with respect to each of the aforementioned items, primarily related to the Business;
(viii) all of Seller’s rights under warranties (including installer warranties), indemnities and all similar rights against third parties to the extent, with respect to each of the aforementioned items, related primarily to any of the other Acquired Assets or the Assumed Liabilities;
(ix) all lists, records and other information pertaining to suppliers and customers, all lists, records and other information pertaining to accounts, referral sources, all drawings, plats, specifications, reports, studies, plans, books, ledgers, files, documents, correspondence and business and accounting materials, all advertising, marketing and promotional materials, and all other printed or written materials, in each case owned, maintained or in the custody or control of Seller that, with respect to each of the aforementioned items, relate primarily to the Business, the Acquired Assets or the Assumed Liabilities, and in each case whether or not evidenced in writing, electronic data or otherwise (the “Books and Records”listed on SCHEDULE 1.1(C);
(xd) all Contracts existing or used primarily in connection with the Business to which Seller or any of its Subsidiaries is a party that are (1) Material Contracts, (2) Project Contracts, (3) set forth on Section 2.1(a)(x) All of the Disclosure SchedulesSeller's rights under the assignable permits, approvals and licenses, both governmental and private, described on SCHEDULE 1.1(D) hereto (4) Customer Agreements, or (5) expressly referenced in other subsections of this Section 2.1(a) to the extent, with respect to each of the aforementioned items, used primarily in connection with the Business (collectively, the “Assigned Contracts” it being understood that Assigned Contracts shall in no event include Excluded Contracts"PERMITS");
(xie) all SRECs generated by All of the Projects on Seller's trademarks, trade names, trade secrets, corporate names, copyrights, designs, patents, licenses (as licensee or licensor), other agreements and after October 1applications with respect to the foregoing, 2024 production records, know how, technical information, manufacturing know-how, processes, trade secrets, customer lists, inventions, , product processes and techniques, research and development information, copyrightable works, trade-names (whether registered or not), mask works, logos, the trade names "Quasar", financial, marketing and business data, pricing and cost information, business and marketing plans and customer and supplier lists and all TRECs and SREC-IIs generated other intangible assets of any kind, all to the extent that they relate to, or are used in connection with, the Business, including, without limitation, those described on and after October 1SCHEDULE 1.1(E) hereto (the "INTANGIBLES"); (Without derogation from the generality of the aforesaid, 2024; andit is agreed, based on the Seller's representation, that the Intangibles include all intellectual property rights which enable and/or secure and/or facilitate the performance of the Business).
(xiif) All of the Seller's, information systems and all other documents and records relating to, or used in connection with, the Acquired Assets;
(g) All of the Seller’s right, title, benefit and interest in and to the warranties and indemnities 's rights under the Installer Agreement associated with each additional Project sold by Seller to Buyer under Section 5.10 (“Warranty Rights”), including Seller’s right to receive the benefits of and to make claims under the Warranty Rights, subject, in each instance, to the limitations, conditions, exclusion of liabilities and disclaimers insurance policies described in such Installer Agreement.on SCHEDULE 1.1
Appears in 1 contract
Sources: Asset Purchase Agreement (Bos Better Online Solutions LTD)
Acquired Assets. Upon (a) On the terms and subject to the conditions set forth in this Agreement, at the ClosingClosing Date (as hereinafter defined), Seller will shall sell, convey, assign, transfer and deliver to Buyerdeliver, unto Purchaser, and Buyer shall purchase from its successors and assigns forever, free and clear of all Liens (as defined in Section 5.4 hereof) (other than rights of third parties under contracts assigned pursuant to this Agreement), all right, title, interest and claims in or to the business, properties and assets of Seller or used in Seller's business other than the Excluded Assets (hereinafter defined), together with the goodwill of Seller, all as the same shall exist on the date hereof, together with any additions thereto after the date of Seller’s rightthis Agreement, title and interest in and (hereinafter sometimes together referred to all of as the assets set forth below"Acquired Assets"), including all of without limitation the Projects (collectively, the “Acquired Assets”):following assets:
(i) all trade machines, equipment, tools, dies, molds, furniture, fixtures, trucks, automobiles, other vehicles, office supplies, and all other notes and accounts receivable tangible personal property, including without limitation that areproperty (A) described on Schedule l.l(a)(i) hereto, (B) used or dedicated to use in the operations of the business of Seller, (C) located at the premises operated by Seller (except, with respect to each of clauses (A) through (C) above, property leased by Seller, which shall be delivered at the aforementioned items, specifically related Closing subject to the Business, in each case only to the extent relating to the period after September 30, 2024, provided, however, that any such trade and other notes and accounts receivable that are, with respect to each of the aforementioned items, specifically related to the Business and received by Buyer after the termination of the Transition Services Agreement shall belong to Buyerleases);
(ii) the contracts, promissory notes, leases of personal property and agreements listed on Schedule l.l(a)(ii) hereto, and all Inventory other contracts, leases, agreements, promissory notes and supplies that are, with respect other evidences of indebtedness to each of Seller (the aforementioned items, owned, used or held for use primarily in connection with the Business, including all inventory that is set forth on Section 2.1(a)(ii) of the Disclosure Schedules attached hereto"Contracts");
(iii) all equipmentintangible assets and all rights, machineryinterests and claims of Seller in, toolsto or under all intangible assets (including without limitation Seller's name and any trademarks, trade names or service marks under which Seller has operated, any copyrighted or copyrightable material, patents, patent applications, trade secrets, drawings, designs, formulas, customers' records, customer lists, supplier lists, pricing information, employee records, choses in action, claims), together with any goodwill associated with any of the foregoing, and other components of residential solar systems, including PV Systems, and other tangible personal property of Seller that are, with respect to each of without limitation the aforementioned items, used primarily in the Business, including the items set forth intangible assets described on Section 2.1(a)(iiiSchedule 1.1
(a) of the Disclosure Schedules (the “Tangible Personal Property”)iii) hereto;
(iv) all email accounts set forth inventories, raw materials (including inventories and raw materials on Section 2.1(a)(iv) order but not received as of the Disclosure SchedulesClosing Date), including email address names that are used primarily in the Business and all email messages associated with such email accountswork-in-progress, finished goods ("Inventory");
(v) all Permitsclaims, to the extent transferabledemands, which are held by Seller judgments, rights, choses in action, accounts receivable, bills and required specifically for the conduct of the Business as currently conducted or for the ownership notes receivable, documents, instruments, credits and use of the Acquired Assets and not required for Seller to conduct any of its operations that are being retained;deferred items; and
(vi) all rights to any Proceeding books, records and files of any nature available to or being pursued by Seller, to the extent related primarily to the Business, the other Acquired Assets or the Assumed Liabilities, whether arising by way of counterclaim or otherwise, in each case only to the extent relating to Assumed Liabilities or Seller relating to the period after September 30, 2024;business and operations of Seller for all periods ending on or before the Closing Date.
(viib) all prepaid items From and expenses (other than prepaid insurance premiums)after the Closing Date, creditsPurchaser shall give to Seller free and unrestricted access to the books, advance paymentsfiles and records relating to the business and operations of Seller prior to the Closing transferred to Purchaser pursuant to Section l.l(a) hereof, claims, security, refunds, rights of recovery, rights of set-off, rights of recoupment, deposits, charges, sums and fees that are, as Seller shall from time to time reasonably request. Any access pursuant to this Section l.l(b) shall be conducted in such a manner as not to interfere unreasonably with respect to each the operations of the aforementioned items, primarily related to business of Purchaser after the Business;
(viii) all of Seller’s rights under warranties (including installer warranties), indemnities and all similar rights against third parties to the extent, with respect to each of the aforementioned items, related primarily to any of the other Acquired Assets or the Assumed Liabilities;
(ix) all lists, records and other information pertaining to suppliers and customers, all lists, records and other information pertaining to accounts, referral sources, all drawings, plats, specifications, reports, studies, plans, books, ledgers, files, documents, correspondence and business and accounting materials, all advertising, marketing and promotional materials, and all other printed or written materials, in each case owned, maintained or in the custody or control of Seller that, with respect to each of the aforementioned items, relate primarily to the Business, the Acquired Assets or the Assumed Liabilities, and in each case whether or not evidenced in writing, electronic data or otherwise (the “Books and Records”);
(x) all Contracts existing or used primarily in connection with the Business to which Seller or any of its Subsidiaries is a party that are (1) Material Contracts, (2) Project Contracts, (3) set forth on Section 2.1(a)(x) of the Disclosure Schedules, (4) Customer Agreements, or (5) expressly referenced in other subsections of this Section 2.1(a) to the extent, with respect to each of the aforementioned items, used primarily in connection with the Business (collectively, the “Assigned Contracts” it being understood that Assigned Contracts shall in no event include Excluded Contracts);
(xi) all SRECs generated by the Projects on and after October 1, 2024 and all TRECs and SREC-IIs generated on and after October 1, 2024; and
(xii) all of Seller’s right, title, benefit and interest in and to the warranties and indemnities under the Installer Agreement associated with each additional Project sold by Seller to Buyer under Section 5.10 (“Warranty Rights”), including Seller’s right to receive the benefits of and to make claims under the Warranty Rights, subject, in each instance, to the limitations, conditions, exclusion of liabilities and disclaimers described in such Installer AgreementClosing Date.
Appears in 1 contract
Acquired Assets. Upon At the Closing, and upon the terms and subject to fulfillment of the conditions herein set forth in this Agreementforth, at the Closing, Seller will Sellers shall sell, convey, assign, transfer transfer, convey and deliver to the Buyer, and the Buyer shall purchase and acquire from SellerSellers, with full title and guarantee and free and clear of all Encumbrances, except the Assumed Liabilities, all of Seller’s Sellers’ right, title and interest in and to all of the assets set forth below, including all of the Projects following (collectively, the “Acquired Assets”):
(i) all trade and other notes and accounts receivable that are, with respect to each of the aforementioned items, specifically related to the Business, in each case only to the extent relating to the period after September 30, 2024, ); provided, however, that the Acquired Assets do not include the Excluded Assets:
(a) those contracts listed on Schedule 1.1 attached hereto (the “Acquired Contracts”);
(b) the equipment listed on Schedule 1.1 attached hereto (the “Acquired Equipment”);
(c) to the extent transferable under applicable Law, all permits, authorizations, orders, licenses, certificates, variances and similar rights issued to Seller by any such trade Governmental Authority and other notes and accounts receivable that are, with respect to each of the aforementioned items, specifically primarily related to the Business and received by Buyer after all pending applications therefor (the termination of the Transition Services Agreement shall belong to Buyer“Permits”), including, without limitation, those Permits set forth on Schedule 1.1;
(iid) all Inventory the patents, patent applications, copyrights, copyright applications, know-how, information, computer software, trademarks, service marks, trade names, brands, private labels, registered domain names, or trade secrets and supplies that are, licenses and rights with respect to the foregoing, all other intellectual property and intangible property owned by Sellers or that Sellers possess the right to use, and all goodwill of Sellers, in each case relating to the operation of the aforementioned items, owned, used or held for use primarily in connection with the Business, including all inventory that is including, without limitation, those set forth on Section 2.1(a)(ii) of the Disclosure Schedules attached hereto;
(iii) all equipment, machinery, tools, and other components of residential solar systems, including PV Systems, and other tangible personal property of Seller that are, with respect to each of the aforementioned items, used primarily in the Business, including the items set forth on Section 2.1(a)(iii) of the Disclosure Schedules Schedule 1.1 (the “Tangible Personal Assigned Intellectual Property”);
(ive) all email accounts the software, hardware and network equipment and information technology relating to the operation of the Business, including, without limitation, those set forth on Section 2.1(a)(iv) of Schedule 1.1 (the Disclosure Schedules, including email address names that are used primarily in the Business and all email messages associated with such email accounts“IT Systems”);
(v) all Permits, to the extent transferable, which are held by Seller and required specifically for the conduct of the Business as currently conducted or for the ownership and use of the Acquired Assets and not required for Seller to conduct any of its operations that are being retained;
(vif) all rights of Sellers to any Proceeding of any nature available to or being pursued by Seller, warranties received from suppliers with respect to the extent related primarily to the BusinessAcquired Assets, the other Acquired Assets or the Assumed Liabilitiesand all rights, whether arising by way of counterclaim or otherwiseclaims, in each case only to the extent relating to Assumed Liabilities or relating to the period after September 30deposits, 2024;
(vii) all prepayments, prepaid items and expenses (other than prepaid insurance premiums)items, credits, advance paymentsallowances, claimsrebates, security, refundscauses of action, rights of recovery, rights of set-offrecoupment, rights of recoupmentset-off (collectively, deposits, charges, sums and fees that are, “Claims”) with respect to each of the aforementioned itemsAcquired Assets for any period beginning after the Closing Date
(g) all recipes, primarily related articles, images (including original files), videos (including original files), Nutrio databases, files and books and records relating to the Business;
(viii) all of Seller’s rights under warranties (including installer warranties), indemnities and all similar rights against third parties to the extent, with respect to each of the aforementioned items, related primarily to any of the other Acquired Assets or the Assumed Liabilities;
(ix) all lists, records and other information pertaining to suppliers and customers, all lists, records and other information pertaining to accounts, referral sources, all drawings, plats, specifications, reports, studies, plans, books, ledgers, files, documents, correspondence and business and accounting materials, all advertising, marketing and promotional materials, and all other printed or written materials, in each case owned, maintained or in the custody or control of Seller that, with respect to each of the aforementioned items, relate primarily to the Business, the Acquired Assets or the Assumed Liabilities, and in each case whether or not evidenced in writing, electronic data or otherwise (the “Books and Records”);
(x) all Contracts existing or used primarily in connection with the Business to which Seller or any of its Subsidiaries is a party that are (1) Material Contracts, (2) Project Contracts, (3) set forth on Section 2.1(a)(x) of the Disclosure Schedules, (4) Customer Agreements, or (5) expressly referenced in other subsections of this Section 2.1(a) to the extent, with respect to each of the aforementioned items, used primarily in connection with the Business (collectively, the “Assigned Contracts” it being understood that Assigned Contracts shall in no event include Excluded Contracts);
(xi) all SRECs generated by the Projects on and after October 1, 2024 and all TRECs and SREC-IIs generated on and after October 1, 2024; and
(xiih) all of Seller’s right, title, benefit and interest in and any other assets and/or receivables related to the warranties and indemnities under Business which Buyer may request from Sellers after the Installer Agreement associated Closing in accordance with each additional Project sold by Seller to Buyer under Section 5.10 (“Warranty Rights”5.1(g), including Seller’s right to receive the benefits of and to make claims under the Warranty Rights, subject, in each instance, to the limitations, conditions, exclusion of liabilities and disclaimers described in such Installer Agreement.
Appears in 1 contract
Acquired Assets. Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, Seller will sell, convey, assign, transfer and deliver to Buyer, and Buyer The Acquired Assets shall purchase from Seller, all consist of Seller’s right, title and interest in and to all of the assets set forth belowowned or used by Seller in the conduct of the Business (wherever located and whether or not reflected on the books and records of Seller and whether or not carried in the name of Seller), expressly excluding (i) the Retained Assets, including all of any assets referred to in Section 2.1(b)(xvi) to be used for Services to be provided to Buyer by Parent pursuant to the Projects Transition Services Agreement, and (ii) any assets used by Seller in the Business that are owned or held by Buyer and provided to Seller pursuant to an Operating Agreement, but expressly including the following property, rights and interests (collectively, the “Acquired Assets”):
(i) the intangible rights and properties of Seller, including all trade and other notes and accounts receivable that areIntellectual Property listed on Schedule 2.1(a)(i) which is held by Seller for use in connection with the Business (it being understood that, with respect to each of the aforementioned items, specifically related to the Business, in each case only to the extent relating to the period after September 30, 2024, provided, however, that any such trade and other notes and accounts receivable that areIntellectual Property is Seller Licensed Intellectual Property, with respect to each only such license or right shall be an Acquired Asset), all of the aforementioned itemsSeller Credit Data, specifically related to the Business all other data and received information held by Buyer after the termination of the Transition Services Agreement shall belong to Buyer;
(ii) all Inventory and supplies that are, with respect to each of the aforementioned items, owned, used or held Seller for use primarily in connection with the Business, whether or not maintained on Buyer’s network or system, including all inventory that is set forth on Section 2.1(a)(ii) data related to consumer claims or consumer disclosures, and all goodwill and going concern value of the Disclosure Schedules attached heretoBusiness, and all “800”, “888” and other toll-free and local telephone numbers of the Business;
(ii) without limiting Section 5.7(b), all Contracts of Seller relating to the Business, including those listed on Schedule 2.1(a)(ii), as such Contracts may be updated or amended after the date hereof in the Ordinary Course of Business, but specifically excluding the Operating Agreements (the “Assigned Contracts”), and all customer lists, account records and other information and documentation relating to customers or other counterparties under any Assigned Contract, together with all goodwill related to the customers or other counterparties under such Assigned Contracts;
(iii) all equipment, machineryfixtures, toolsfurniture, computers, terminals and other components of residential solar computer hardware and systems, including PV Systems, supplies and other tangible personal property of owned by Seller that are, and used or held for use in connection with respect to each of the aforementioned items, used primarily in the Business, including the items set forth those listed on Section Schedule 2.1(a)(iii) of the Disclosure Schedules (the “Tangible Personal Property”);
(iv) all email accounts set forth on Section 2.1(a)(iv) Accounts Receivable of Seller as of the Disclosure SchedulesClosing Date, including email address names that are used primarily Accounts Receivable owed by Buyer or any of its Affiliates to Seller, which Accounts Receivable will be reflected in the Business and all email messages associated with such email accountsFinal Closing Date Working Capital Schedule (“Closing Date Account Receivables”);
(v) all Permitsrights to any advance payment, prepaid rentals, deposits and other prepaid expenses, rights of offset, credit and claims for refund relating to the extent transferable, which are held by Seller and required specifically for Assigned Contracts or the conduct of the Business as currently conducted or for the ownership and use of the Acquired Assets and not required for Seller to conduct any of its operations that are being retainedBusiness;
(vi) all rights to any Proceeding of any nature available to or being pursued by Seller, to the extent related primarily to permitted by any applicable Legal Requirement, all Permits and other authorizations of Seller used or held for use in the Business, the other Acquired Assets or the Assumed Liabilities, whether arising by way of counterclaim or otherwise, in each case only to the extent relating to Assumed Liabilities or relating to the period after September 30, 2024;
(vii) all prepaid items and expenses (other than prepaid insurance premiumssubject to Section 2.2(b), creditsall warranties, advance paymentsindemnities, rights and claims, securitycounterclaims, refundsdemands, lawsuits, judgments, right and causes of action of any nature (whether contingent or absolute, matured or unmatured, known or unknown, ▇▇▇▇▇▇ or inchoate, and whether in tort, contract or otherwise) against any Person, including any Encumbrances, judgments, causes of action and rights of recovery, rights of set-off, rights of recoupment, deposits, charges, sums and fees that are, with respect the right to each of the aforementioned items, primarily related to the Business;
(viii) all of Seller’s rights under warranties (including installer warranties), indemnities receive and all similar rights against third parties to the extent, with respect to each of the aforementioned items, related primarily to any of the other Acquired Assets or the Assumed Liabilities;
(ix) all lists, records retain mail and other information pertaining to suppliers written communications received after the Closing Date and customers, all lists, records and other information pertaining to accounts, referral sources, all drawings, plats, specifications, reports, studies, plans, books, ledgers, files, documents, correspondence and business and accounting materials, all advertising, marketing and promotional materials, and all other printed or written materials, in each case owned, maintained or in the custody or control of Seller that, with respect to each of the aforementioned items, relate primarily directly relating to the Business, the Acquired Assets and/or the Assumed Obligations (it being agreed that any mail or other written communications relating to the Retained Assets and the Retained Obligations will be promptly remitted to Parent and Seller);
(viii) the Seller’s files, books and records (or, in Seller’s discretion, copies of any thereof) directly relating to the Acquired Assets or the Assumed LiabilitiesBusiness (to the extent permitted by any Legal Requirement), including, to the extent they exist, maintenance and repair records, plans and drawings;
(ix) to the extent in each case Seller’s possession or control and still in existence, all project plans, budgets, schedules, deliverables (whether complete or not evidenced in writingincomplete) and other documentation relating to past, electronic data present or otherwise (future Credit Services provided by the “Books and Records”)Business;
(x) all Contracts existing leases or used primarily in connection with the Business subleases of tangible Personal Property set forth on Schedule 2.1(a)(x)(1) hereto as to which Seller is the lessor or any sublessor and all leases of its Subsidiaries is a party that are (1) Material Contracts, (2) Project Contracts, (3) tangible Personal Property set forth on Section 2.1(a)(xSchedule 2.1(a)(x)(2) of hereto as to which Seller is the Disclosure Scheduleslessee or sublessee, (4) Customer Agreements, in each case together with any contractual options to purchase or (5) expressly referenced in other subsections of this Section 2.1(a) to sell the extent, with respect to each of the aforementioned items, used primarily in connection with the Business (collectively, the “Assigned Contracts” it being understood that Assigned Contracts shall in no event include Excluded Contracts)underlying property;
(xi) all SRECs generated by of the Projects leases or subleases of Leasehold Property set forth on and after October 1Schedule 2.1(a)(xi)(1) hereto as to which Seller is the lessor or sublessor, 2024 and all TRECs leases and SREC-IIs generated subleases of real property set forth on Schedule 2.1(a)(xi)(2) hereto as to which Seller is the lessee or sublessee, in each case together with any contractual options of Seller to purchase the underlying property, and after October 1all leasehold improvements thereon owned by Seller and all other Seller rights, 2024; andsubleases, licenses, interests and rights appurtenant thereto or related to such leases and subleases;
(xii) all lock boxes and safe deposit boxes of Seller’s right, title, benefit and interest Seller used in and the Business;
(xiii) the proceeds of any insurance policy that is payable with respect to a Specified FCRA Claim to the warranties and indemnities under the Installer Agreement associated with each additional Project sold by Seller extent Buyer is responsible therefor pursuant to Buyer under Section 5.10 10.4; and
(“Warranty Rights”), including Seller’s right to receive the benefits of and to make claims under the Warranty Rights, subject, in each instance, xiv) except to the limitationsextent disposed of since the date of such balance sheet in the Ordinary Course of Business, conditionsall other assets, exclusion of liabilities properties and disclaimers described rights reflected on the September 30, 2012 balance sheet contained in such Installer Agreementthe Interim Financial Statements.
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Acquired Assets. Upon Subject to the terms and subject to the conditions set forth in this Agreement, at the ClosingClosing referred to in Section 4 hereof, the Seller will shall sell, convey, assign, transfer and deliver to the Buyer, and the Buyer shall purchase from Sellerpurchase, acquire and take assignment and delivery of, all of Seller’s right, title and interest in and to the following assets (all of which assets are hereinafter referred to collectively as the assets set forth below, including all of the Projects (collectively, the “"Acquired Assets”"):
(ia) all trade and other notes and accounts receivable that are, with respect to each All of the aforementioned itemsSeller's rights and title to, specifically related to the Businessand interest in, in each case only to the extent relating to the period after September 30any and all machinery, 2024installations, providedequipment, howeverfurniture, that any such trade tools, spare parts, supplies, materials and all other notes and accounts receivable that are, with respect to each of the aforementioned items, specifically related to the Business and received by Buyer after the termination of the Transition Services Agreement shall belong to Buyer;
(ii) all Inventory and supplies that are, with respect to each of the aforementioned items, owned, personal property used or held for use primarily in connection with the Business, including all inventory that is set forth without limitation those items described on Section 2.1(a)(iiSchedule 1(a) hereto (the "Equipment");
(b) All of the Disclosure Schedules attached Seller's rights under purchase orders, website agreements, development agreements and under all other contracts, commitments and agreements of the Seller in connection with the Business that have been entered into by the Seller in the ordinary course of business prior to the Closing (the contracts and agreements referred to in this paragraph (b) being referred to collectively as the "Contracts"), including, without limitation, those Contracts listed on Schedule 1(b) hereto;
(iiic) all equipment, machinery, tools, and other components of residential solar systems, including PV Systems, and other tangible personal property of Seller that are, with respect to each All of the aforementioned itemsSeller's transferable rights under the licenses, used primarily in permits and approvals, both governmental and private, which are necessary or required for the Businessoperation, including the items set forth on Section 2.1(a)(iii) use or ownership of the Disclosure Schedules Business or any of the Acquired Assets (the “Tangible Personal Property”"Permits");
(ivd) all email accounts set forth on Section 2.1(a)(iv) All of the Disclosure SchedulesSeller's source codes, including email address names that are used primarily in URL's, trademarks, trade names, trade secrets, corporate names, service marks, domain names, copyrights, designs, patents, software code and architecture, other intellectual property, licenses (as licensee or licensor), other agreements and applications with respect to any of the foregoing, production records, technical information, all know-how, processes, supplier lists, telephone numbers, all other intangible assets, and all goodwill of the Seller relating to the Business (all intellectual property, licenses, contracts and all email messages associated with such email accountsother intangible assets referred to in this paragraph being referred to collectively as the "Intangibles"), including, without limitation, those described Intangibles on Schedule 1(d) hereto;
(ve) Copies of all Permits, to the extent transferable, which are held by Seller and required specifically for the conduct of the Business as currently conducted or Seller's accounting books, records and ledgers, employment and personnel records for all employees of the ownership Seller, owned information systems and use of all other documents and records relating to the Acquired Assets and not required for Seller to conduct any of its operations that are being retained;
(vi) all rights to any Proceeding of any nature available to or being pursued by Seller, to the extent related primarily to the Business, the other Acquired Assets or the Assumed Liabilities, whether arising by way of counterclaim or otherwise, in each case only to the extent relating to Assumed Liabilities or relating to the period after September 30, 2024;
(vii) all prepaid items and expenses (other than prepaid insurance premiums), credits, advance payments, claims, security, refunds, rights of recovery, rights of set-off, rights of recoupment, deposits, charges, sums and fees that are, with respect to each of the aforementioned items, primarily related to the Business;
(viiif) all All of the Seller’s 's transferable rights under warranties (including installer warranties), indemnities and all similar rights against third parties to the extent, with respect to each of the aforementioned items, related primarily to any of the other Acquired Assets or the Assumed Liabilities;
(ixinsurance policies described on Schedule 1(f) all lists, records and other information pertaining to suppliers and customers, all lists, records and other information pertaining to accounts, referral sources, all drawings, plats, specifications, reports, studies, plans, books, ledgers, files, documents, correspondence and business and accounting materials, all advertising, marketing and promotional materials, and all other printed or written materials, in each case owned, maintained or in the custody or control of Seller that, with respect to each of the aforementioned items, relate primarily to the Business, the Acquired Assets or the Assumed Liabilities, and in each case whether or not evidenced in writing, electronic data or otherwise hereto (the “Books and Records”"Insurance Policies");
(xg) all Contracts existing or used primarily in connection with the Business to which Seller or any of its Subsidiaries is a party that are (1) Material Contracts, (2) Project Contracts, (3) set forth on Section 2.1(a)(x) All of the Disclosure SchedulesSeller's title to, (4) Customer Agreements, or (5) expressly referenced interest in other subsections of this Section 2.1(a) to and rights under the extent, with respect to each leases of the aforementioned itemspersonal property described on Schedule 1(g) hereto (the "Personal Property Leases");
(h) All of the Seller's title to, used primarily interest in and rights under the leases of the real property described on Schedule 1(h) hereto (the "Real Property Leases");
(i) All of the Seller's title to, interest in and rights under license agreements and marketing development agreements in effect on the Closing Date, including, without limitation, all amendments, modifications and supplements thereto, that have been entered into by the Seller in connection with the Business (collectivelythe "License Agreements"), the “Assigned Contracts” it being understood that Assigned Contracts shall in no event include Excluded Contracts)including, without limitation, those License Agreements described on Schedule 1(i) hereto;
(xij) all SRECs generated by All of the Projects on Seller's pre-paid expenses;
(k) Any lists in the possession of the Seller that identify customers to whom sales were made in connection with the operation of the Business (the "Accounts") and after October 1vendors from whom items, 2024 including without limitation the Equipment and all TRECs and SREC-IIs generated on and after October 1the Inventories, 2024are purchased in connection with the operation of the Business; and
(xiil) all All of the Seller’s right, title, benefit and interest in and to 's other assets other than the warranties and indemnities under the Installer Agreement associated with each additional Project sold by Seller to Buyer under Section 5.10 (“Warranty Rights”), including Seller’s right to receive the benefits of and to make claims under the Warranty Rights, subject, in each instance, to the limitations, conditions, exclusion of liabilities and disclaimers described in such Installer AgreementExcluded Assets.
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