Assets to be Sold and Purchased. (a) Subject to Section 1.1(b) and the other terms and conditions hereof, Seller shall sell, assign, transfer, convey and deliver to Buyer free and clear of all Liens (other than Permitted Liens) (as defined in Section 2.9), and Buyer shall purchase from Seller, all of Seller's right and title to the properties and assets of Seller which are used in the Business (collectively, the "Assets"), including: (i) all of Seller's rights, title and interest in and to the real property in Milford, Ohio leased by Seller and used in the Business (the "Land"), and all of Seller's rights, title and interest in and to all buildings, improvements and fixtures constructed thereon (the "Improvements," and together with Land, the "Leased Real Property"), as set forth on Schedule 1.1(a)(i) hereof; (ii) all of Seller's rights, title and interest in and to the machinery, equipment, tools, supplies, spare parts, furniture and other tangible personal property owned by Seller and used in the Business (the "Equipment") on the date hereof as set forth on Schedule 1.1(a)(ii) hereof; (iii) all of Seller's rights, title and interest in, to and under all patents, patent applications (including patents issuing on such applications), registered or unregistered trade names, trademarks, copyrights, service marks and applications owned by Seller and used in the Business, as set forth on Schedule 1.1(a)(iii), whether filed or to be filed in connection therewith (including, without limitation, all of Seller's rights to use the name "Seafla, Inc." and any derivation thereof but excluding rights to use the name "Technology Flavors & Fragrances, Inc.," or any derivation thereof), and all licenses and sublicenses of Seller used in the Business (including all reissues, renewals, continuations or extensions of the foregoing); (iv) all of Seller's rights in, to and under trade secrets, processes, technology, formulae, specifications and technical know-how of Seller used in the Business, including, but not limited to, engineering and other drawings, data, designs and specifications, product literature and related materials (together with the intellectual property described in Section 1.1(a)(iii), the "Intellectual Property Rights") and all of Seller's books, operating manuals, records, business forms and computer data and programs relating thereto, all as set forth on Schedule 1.1(a)(iv); (v) all of Seller's rights in, to and under the goodwill of the Business; (vi) all of Seller's rights under all Contracts of Seller used in the Business and listed on Schedule 1.1(a)(vi), including, but not limited to, the Lease (collectively, the "Transferred Contracts"); (vii) all of Seller's Inventory, wherever located, used in the Business as such exists on the date hereof, as set forth in Schedule 1.1(a)(vii) hereof; (viii) all of Seller's rights under all governmental licenses, certificates, permits and approvals used in the Business as of the date hereof, to the extent such items are transferable (the "Permits"), as set forth on Schedule 1.1(a)(viii) hereof; (ix) all transferable warranties, representations and guarantees in favor of Seller pertaining primarily to the Business; (x) all books and records of Seller relating to the Business, including, without limitation, copies of lists of customers and suppliers; records with respect to costs; Inventory and Equipment; business development and marketing plans; advertising materials, catalogues, correspondence, mailing lists, photographs, sales materials and records; purchasing materials and records; personnel records with respect to employees of the Business; sales order files; plans, specifications, surveys, reports and other materials relating to the Leased Real Property; and all software programs, computer printouts, databases and related items of Seller related to the Business; (xi) other assets, properties, rights and business of every kind and nature owned or held by the Seller which relate to the Business on the date hereof, known or unknown, fixed or unfixed, xxxxxx or inchoate, accrued, absolute, contingent or otherwise, whether or not specifically identified above, as more fully set forth in Schedule 1.1(a)(xi) hereof to the extent known, including, but not limited to, factory supplies and packing materials; (xii) all accounts receivable of Seller on the date hereof which relate to the Business (the "Accounts Receivable"), a list of which is set forth on Schedule 1.1(a) (xii) hereof; (xiii) the tax exemption benefits granted to Seafla, Inc. pursuant to the Enterprise Zone Agreement among Seller, the Board of Trustees of Miami Township, Clermont County, Ohio and the Board of County Commissioners of Clermont County, Ohio ratified by Clermont County, Ohio on May 20, 1993 to the extent assigned to Seller on December 6, 1995 pursuant to that certain Assignment of Tax Exemption Benefits by and among Seafla, Inc. and Seller (the "Tax Agreement") (the "Tax Exemption Benefits"); (xiv) an amount of cash equal to $50,000; and (xv) all of the rights of Seller as beneficiary under that certain prepaid life insurance policy with Xxxxxxx Penn Life Insurance Company of New York on the life of Xxxxxxx X. Xxxxxxx, policy no. 0000311467, which policy is owned by Xx. Xxxxxxx and expires August 28, 1998. (b) Notwithstanding anything contained herein to the contrary, the Assets shall specifically exclude the following (the "Excluded Assets"): (i) all cash on hand, cash equivalents, investments (including, without limitation, stock, debt instruments, options and other instruments and securities) and bank deposits of Seller as of the date hereof, including those held by Seller on behalf of the Business, except all deposits in respect of unfilled orders existing on the date hereof and an amount, pursuant to Section 1.1(a)(xiv), equal to $50,000; (ii) all Tax refunds and recoveries and similar benefits of Seller concerning the Business which relate to any period arising or relating to the operation of the Business by Seller prior to the date hereof, and all of Seller's income Tax Returns and Tax records concerning the Business for periods prior to the date hereof (except that copies of material Tax Returns and Tax records relating to the Business for the two (2) years prior to the date hereof shall be provided to Buyer at Closing); (iii) all of Seller's rights under any Employee Benefit Plans relating to the Business; (iv) any Inventory or raw materials stored or held in defective containers, as set forth on Schedule 1.1(b)(iv); (v) except as provided in Section 1.1(a)(xv) hereof, all of Seller's rights under any Insurance Policies and any Contracts relating to the Business, other than the Transferred Contracts; (vi) the machinery, vehicles, furniture, equipment and personal property used in the Business specifically set forth on Schedule 1.1(b)(vi); and (vii) all assets, properties, rights and interests of Seller which are not used in the Business, as set forth on Schedule 1.1(b)(vii).
Appears in 1 contract
Samples: Asset Purchase Agreement (Technology Flavors & Fragrances Inc)
Assets to be Sold and Purchased. (a) Subject to Section 1.1(b) and the other terms and conditions hereof, Seller shall sell, assign, transfer, convey and deliver to Buyer free and clear of all Liens (other than Permitted Liens) (as defined in Section 2.9), and Buyer shall purchase from Seller, all of Seller's right the property, assets and title to the properties and assets of Seller which are rights used or held for use in the Business (collectively, the "AssetsASSETS"), ) including:
(i) all of Seller's rights, title and interest in and to the real property in Milford, Ohio leased by Seller and used in the Business (the "LandLAND"), and all of Seller's rights, title and interest in and to all buildings, improvements and fixtures constructed thereon (the "ImprovementsIMPROVEMENTS," and together with Land, the "Leased Real PropertyREAL PROPERTY"), as set forth on Schedule 1.1(a)(i) hereof;
(ii) all of Seller's rights, title and interest in and to the rides, machinery, equipment, tools, supplies, spare parts, rolling stock, furniture and other tangible personal property owned by Seller and used or held for use in the Business (the "EquipmentEQUIPMENT") ), on the date hereof as set forth on Schedule 1.1(a)(ii) hereofClosing Date;
(iii) all proceeds from the sale of season passes and any other pre-sold tickets ("PREPAID DEPOSITS")
(A) in the case of Waterworld, with respect to the 1997 season, and (B) in the case of Paradise Island, with respect to the period commencing on the Closing Date;
(iv) all of Seller's rights, title and interest in, to and under all patents, patent applications (including patents issuing on such applications), registered or unregistered trade names, trademarks, copyrights, service marks servicemarks, trademark and servicemark registrations and applications owned by Seller and used in the Business, as set forth on Schedule 1.1(a)(iii), whether filed or to be filed in connection therewith (including, without limitation, all of Seller's rights right to use the name names "Seafla, Inc.Waterworld USA" and any derivation thereof but excluding rights to use the name "Technology Flavors & Fragrances, Inc.,Paradise Island" or and any derivation thereof), and all licenses and sublicenses of Seller whether or not used in the Business (including all reissues, renewals, continuations or extensions of the foregoing)Business;
(ivv) all of Seller's rights in, to and under trade secrets, processes, technology, formulae, formulae and specifications and technical know-how of Seller how, whether currently being used in the Businessor under development, including, but not limited to, including engineering and other drawings, data, designs design and specifications, product literature and related materials materials, in each case which are owned or licensed by Seller as of the Closing Date (together with the intellectual property described in Section 1.1(a)(iii1.1(a)(iv), the "Intellectual Property RightsINTELLECTUAL PROPERTY RIGHTS") and all of Seller's books, operating manuals, records, business forms records and computer data and programs relating thereto, all as set forth on Schedule 1.1(a)(iv);
(vvi) all of Seller's rights in, to and under the goodwill of the Business;
(vivii) all of Seller's rights under all Contracts of Seller used in the Business and listed on Schedule 1.1(a)(viSCHEDULE 1.1(A)(VII), including, but not limited to, the Lease (collectively, the "TRANSFERRED CONTRACTS") and all prepaid expenses, claims and other prepayments, including security deposits and other retentions held by third parties, with respect to the Transferred Contracts")Contracts as of the Closing Date;
(viiviii) all of Seller's Inventory, wherever located, used in with respect to the Business as such exists on the date hereof, as set forth in Schedule 1.1(a)(vii) hereofClosing Date;
(viiiix) all of Seller's rights under all governmental licenses, certificates, permits and approvals used in relating to or necessary to the conduct of the Business as of the date hereofClosing Date, to the extent such items are transferable (the "PermitsPERMITS"), as set forth on Schedule 1.1(a)(viii) hereof;
(ix) all transferable warranties, representations and guarantees in favor of Seller pertaining primarily to the Business;
(x) all transferable warranties and guarantees pertaining to the Assets; and
(xi) all books and records of Seller relating to the Business, Business and the Assets (whether kept or maintained by Seller or any third party) including, without limitation, copies of lists of customers and suppliers; admission tickets, season passes, records with respect to costs; , Inventory and Equipment; business development and marketing plans; advertising materials, catalogues, correspondence, mailing lists, photographs, sales materials and records; purchasing materials and records; personnel records with respect to employees of the Business; media materials and plates; sales order files; ledgers and other books of account of Seller; plans, specifications, surveys, reports and other materials relating to the Leased Real Property; other records required to continue the Business as heretofore and now being conducted by Seller; and all software programs, computer printouts, databases and related items of Seller related to used in the Business;
(xi) other assets, properties, rights and business of every kind and nature owned or held by the Seller which relate to the Business on the date hereof, known or unknown, fixed or unfixed, xxxxxx or inchoate, accrued, absolute, contingent or otherwise, whether or not specifically identified above, as more fully set forth in Schedule 1.1(a)(xi) hereof to the extent known, including, but not limited to, factory supplies and packing materials;
(xii) all accounts receivable of Seller on the date hereof which relate to the Business (the "Accounts Receivable"), a list of which is set forth on Schedule 1.1(a) (xii) hereof;
(xiii) the tax exemption benefits granted to Seafla, Inc. pursuant to the Enterprise Zone Agreement among Seller, the Board of Trustees of Miami Township, Clermont County, Ohio and the Board of County Commissioners of Clermont County, Ohio ratified by Clermont County, Ohio on May 20, 1993 to the extent assigned to Seller on December 6, 1995 pursuant to that certain Assignment of Tax Exemption Benefits by and among Seafla, Inc. and Seller (the "Tax Agreement") (the "Tax Exemption Benefits");
(xiv) an amount of cash equal to $50,000; and
(xv) all of the rights of Seller as beneficiary under that certain prepaid life insurance policy with Xxxxxxx Penn Life Insurance Company of New York on the life of Xxxxxxx X. Xxxxxxx, policy no. 0000311467, which policy is owned by Xx. Xxxxxxx and expires August 28, 1998.
(b) Notwithstanding anything contained herein to the contrary, the The Assets shall specifically exclude the following assets and property (the "Excluded AssetsEXCLUDED ASSETS"):
(i) all of Seller's rights, title and interest in and to the Transaction Documents;
(ii) cash on hand, cash equivalents, investments (including, without limitation, stock, debt instruments, options and other instruments and securities) and bank deposits of Seller as of the date hereof, including those held by Seller on behalf of the Business, except all deposits in respect of unfilled orders existing on the date hereof and an amount, pursuant to Section 1.1(a)(xiv), equal to $50,000Closing Date;
(iiiii) all of the accounts receivable of Seller as of the Closing Date;
(iv) Tax refunds and recoveries and similar benefits of Seller concerning the Business which relate to any period arising or relating to the operation of the Business by Seller prior to the date hereofClosing Date, and all of Seller's income Tax Returns and Tax records concerning as of the Business for periods prior to the date hereof (except that copies of material Tax Returns and Tax records relating to the Business for the two (2) years prior to the date hereof shall be provided to Buyer at Closing)Closing Date;
(iiiv) all corporate records of Seller including, without limitation, the stock ledger of Seller and the minute books regarding meetings of the stockholders, directors and director committees of Seller;
(vi) Seller's rights under any Employee Benefit Plans relating to the BusinessPlans;
(ivvii) any Inventory or raw materials stored or held in defective containers, as set forth on Schedule 1.1(b)(iv);
(v) except as provided in Section 1.1(a)(xv) hereof, all of Seller's rights under any Insurance Policies and any Contracts relating to the Businessor other Contracts, other than the Transferred Contracts;
(viviii) all of the machinery, vehicles, furniture, equipment licenses issued by the California Alcohol and personal property used in the Business specifically set forth on Schedule 1.1(b)(vi)Beverage Commission; and
(viiix) all assetsassets relating exclusively to any of Seller's operations (including, propertieswithout limitation, rights and interests those of Seller which are not used in Concord Entertainment Company), other than the Business, as set forth on Schedule 1.1(b)(vii).
Appears in 1 contract
Assets to be Sold and Purchased. (a) Subject to Section 1.1(b) and the other terms and conditions hereof, Seller shall sell, assign, transfer, convey and deliver to Buyer free and clear of all Liens (other than Permitted Liens) (as defined in Section 2.9), and Buyer shall purchase from Seller, all of Seller's right the property, assets and title to the properties and assets of Seller which are rights used or held for use in the Business (collectively, the "AssetsASSETS"), ) including:
(i) all of Seller's rights, title and interest in and to the real property in Milford, Ohio leased by Seller and used in the Business (the "LandLAND"), and all of Seller's rights, title and interest in and to all buildings, improvements and fixtures constructed thereon (the "ImprovementsIMPROVEMENTS," and together with Land, the "Leased Real PropertyREAL PROPERTY"), as set forth on Schedule 1.1(a)(i) hereof;
(ii) all of Seller's rights, title and interest in and to the rides, machinery, equipment, tools, supplies, spare parts, rolling stock, furniture and other tangible personal property owned by Seller and used or held for use in the Business (the "EquipmentEQUIPMENT") on the date hereof as set forth on Schedule 1.1(a)(ii) hereofClosing Date;
(iii) all proceeds from the sale of season passes and any other pre-sold tickets ("PREPAID DEPOSITS") with respect to the 1997 season of the Park as of the Closing Date;
(iv) all of Seller's and the General Partners' rights, title and interest in, to and under all patents, patent applications (including patents issuing on such applications), registered or unregistered trade names, trademarks, copyrights, service marks servicemarks, trademark and servicemark registrations and applications owned by Seller and used in the Business, as set forth on Schedule 1.1(a)(iii), whether filed or to be filed in connection therewith (including, without limitation, all of Seller's rights to use the name "Seafla, Inc.Waterworld USA" and any derivation thereof but excluding rights to use the name "Technology Flavors & Fragrances, Inc.," or any derivation thereof), and all licenses and sublicenses of Seller whether or not used in the Business (including all reissues, renewals, continuations or extensions of the foregoing)Business;
(ivv) all of Seller's and the General Partners' rights in, to and under trade secrets, processes, technology, formulae, formulae and specifications and technical know-how of Seller how, whether currently being used in the Businessor under development, including, but not limited to, including engineering and other drawings, data, designs design and specifications, product literature and related materials materials, in each case which are owned or licensed by Seller as of the Closing Date (together with the intellectual property described in Section 1.1(a)(iii1.1(a)(iv), the "Intellectual Property RightsINTELLECTUAL PROPERTY RIGHTS") and all of Seller's and the General Partners' books, operating manuals, records, business forms records and computer data and programs relating thereto, all as set forth on Schedule 1.1(a)(iv);
(vvi) all of Seller's rights in, to and under the goodwill of the Business;
(vivii) all of Seller's rights under all Contracts of Seller used in the Business and listed on Schedule 1.1(a)(vi), SCHEDULE 1.1(A)(VII) including, but not limited to, the Lease (collectively, the "TRANSFERRED CONTRACTS") and all prepaid expenses, claims and other prepayments, including security deposits and other retentions held by third parties, with respect to the Transferred Contracts")Contracts as of the Closing Date, provided, however, that the Transferred Contracts shall not include any Contract providing for the payment to any Affiliate of Seller or the General Partners;
(viiviii) all of Seller's Inventory, wherever located, used in with respect to the Business as such exists on the date hereof, as set forth in Schedule 1.1(a)(vii) hereofClosing Date;
(viiiix) all of Seller's rights under all governmental licenses, certificates, permits and approvals used in relating to or necessary to the conduct of the Business as of the date hereofClosing Date, to the extent such items are transferable (the "PermitsPERMITS"), as set forth on Schedule 1.1(a)(viii) hereof;
(ix) all transferable warranties, representations and guarantees in favor of Seller pertaining primarily to the Business;
(x) all transferable warranties and guarantees pertaining to the Assets; and
(xi) all books and records of Seller relating to the BusinessBusiness and the Assets (whether kept or maintained by Seller, either of the General Partners or any third party) including, without limitation, copies of lists of customers and suppliers; admission tickets, season passes, records with respect to costs; , Inventory and Equipment; business development and marketing plans; advertising materials, catalogues, correspondence, mailing lists, photographs, sales materials and records; purchasing materials and records; personnel records with respect to employees of the Business; media materials and plates; sales order files; ledgers and other books of account; plans, specifications, surveys, reports and other materials relating to the Leased Real Property; other records required to continue the Business as heretofore and now being conducted by or on behalf of Seller; and all software programs, computer printouts, databases and related items of Seller related to used in the Business;
(xi) other assets, properties, rights and business of every kind and nature owned or held by the Seller which relate to the Business on the date hereof, known or unknown, fixed or unfixed, xxxxxx or inchoate, accrued, absolute, contingent or otherwise, whether or not specifically identified above, as more fully set forth in Schedule 1.1(a)(xi) hereof to the extent known, including, but not limited to, factory supplies and packing materials;
(xii) all accounts receivable of Seller on the date hereof which relate to the Business (the "Accounts Receivable"), a list of which is set forth on Schedule 1.1(a) (xii) hereof;
(xiii) the tax exemption benefits granted to Seafla, Inc. pursuant to the Enterprise Zone Agreement among Seller, the Board of Trustees of Miami Township, Clermont County, Ohio and the Board of County Commissioners of Clermont County, Ohio ratified by Clermont County, Ohio on May 20, 1993 to the extent assigned to Seller on December 6, 1995 pursuant to that certain Assignment of Tax Exemption Benefits by and among Seafla, Inc. and Seller (the "Tax Agreement") (the "Tax Exemption Benefits");
(xiv) an amount of cash equal to $50,000; and
(xv) all of the rights of Seller as beneficiary under that certain prepaid life insurance policy with Xxxxxxx Penn Life Insurance Company of New York on the life of Xxxxxxx X. Xxxxxxx, policy no. 0000311467, which policy is owned by Xx. Xxxxxxx and expires August 28, 1998.
(b) Notwithstanding anything contained herein to the contrary, the The Assets shall specifically exclude the following assets and property (the "Excluded AssetsEXCLUDED ASSETS"):
(i) all of Seller's rights, title and interest in and to the Transaction Documents;
(ii) cash on hand, cash equivalents, investments (including, without limitation, stock, debt instruments, options and other instruments and securities) and bank deposits of Seller as of the date hereof, including those held by Seller on behalf of the Business, except all deposits in respect of unfilled orders existing on the date hereof and an amount, pursuant to Section 1.1(a)(xiv), equal to $50,000Closing Date;
(iiiii) all of the accounts receivable of Seller as of the Closing Date;
(iv) Tax refunds and recoveries and similar benefits of Seller concerning the Business which relate to any period arising or relating to the operation of the Business by Seller prior to the date hereof, Closing Date and all of Seller's income Tax Returns and Tax records concerning as of the Business for periods prior to the date hereof (except that copies of material Tax Returns and Tax records relating to the Business for the two (2) years prior to the date hereof shall be provided to Buyer at Closing)Closing Date;
(iiiv) all partnership records of Seller including, without limitation, the minute books regarding meetings of the partners;
(vi) Seller's and the General Partners' rights under any Employee Benefit Plans relating to the BusinessPlans;
(ivvii) any Inventory or raw materials stored or held in defective containers, as set forth on Schedule 1.1(b)(iv);
(v) except as provided in Section 1.1(a)(xv) hereof, all of Seller's rights under any Insurance Policies and any Contracts relating to the Businessor other Contracts, other than the Transferred Contracts;
(viviii) all of the machinery, vehicles, furniture, equipment licenses issued by the California Alcohol and personal property used in the Business specifically set forth on Schedule 1.1(b)(vi)Beverage Commission; and
(viiix) all assetsassets relating exclusively to any of Seller's operations, properties, rights and interests of Seller which are not used in other than the Business, as set forth on Schedule 1.1(b)(vii).
Appears in 1 contract
Assets to be Sold and Purchased. (a) Subject to Section 1.1(b) and the other terms and conditions hereof, The Seller shall sell, assign, transfer, convey and deliver to Buyer the Buyer, free and clear of all Liens (other than Permitted Liens) Liens (as defined in Section 2.93.9(a) hereof), and the Buyer shall purchase from the Seller, all of Seller's right the property, assets and title to rights owned by the properties Seller and assets of Seller which are used used, held for use or useful in connection with the Business Funnoodle Product Line, but specifically excluding the Excluded Assets (as defined in Section 2.1(b)) (collectively, the "Assets"), includingincluding the following and as set forth on SCHEDULE 2.1(A) hereof:
(i) all of Seller's rights, title and interest in and to the real property in Milford, Ohio leased by Seller and used in the Business (the "Land"), and all of Seller's rights, title and interest in and to all buildings, improvements and fixtures constructed thereon (the "Improvements," and together with Land, the "Leased Real Property"), as set forth on Schedule 1.1(a)(i) hereof;
(ii) all of Seller's rights, title and interest in and to the machinery, equipment, tools, supplies, spare parts, furniture parts and other tangible personal property owned by Seller and used in the Business listed on SCHEDULE 2.1(A) (the "EquipmentEQUIPMENT") ), on the date hereof as Closing Date;
(ii) all inventory, and rights to all inventory, including parts, designs, artwork, patterns, fittings, molds, jigs, fixtures, raw materials, supplies, packaging, samples, work-in-process and inventories of finished goods relating to the Funnoodle Product Line, whether in possession of the Seller or any supplier, manufacturer or contractor of the Seller (the "INVENTORY"), excluding those items set forth on Schedule 1.1(a)(iiSCHEDULE 2.1(A)(II) hereof;
(iii) all of the Seller's rightsright, title and interest in, to and under all patents, patent applications (including patents issuing on such applications), registered or unregistered trade names, trademarks, copyrights, service marks copyright applications, servicemarks, trademark and applications owned by Seller servicemark registrations and used in applications, domain names, logos and other intangible property relating to the Business, as set forth on Schedule 1.1(a)(iii), whether filed or to be filed in connection therewith Funnoodle Product Line (including, without limitation, all of the Seller's rights right to use the name "Seafla, Inc.Funnoodle" and any derivation thereof but excluding rights to use the name "Technology Flavors & Fragrances, Inc.," or any derivation derivations thereof), and all licenses and sublicenses of Seller whether or not used in the Business (including all reissues, renewals, continuations or extensions of the foregoing)Funnoodle Product Line;
(iv) all of the Seller's rights in, to and under trade secretssecrets (including but not limited to, processesall results of research and development), technologyinventions (whether or not patented), formulae, formulae and specifications and technical know-how of Seller relating to the Funnoodle Product Line, whether currently being used in the Businessor under development, including, but not limited to, including engineering and other drawings, data, designs design and specifications, product literature and related materials materials, in each case which are owned or licensed by the Seller as of the Closing Date (together with the intellectual property described in Section 1.1(a)(iii2.1(a)(iii), the "Intellectual Property RightsINTELLECTUAL PROPERTY RIGHTS") and all of the Seller's books, operating manuals, records, business forms records and computer data and programs (in a form which is readable by the Buyer) relating thereto, all as set forth on Schedule 1.1(a)(iv);
(v) all of the Seller's rights in, to and under the goodwill of the BusinessFunnoodle Product Line;
(vi) all of the Seller's rights right, title and interest in, to and under all Contracts of Seller used in Contracts, open sales orders, order backlog and all prepaid expenses, claims and other prepayments relating to the Business Funnoodle Product Line, including security deposits, prepaid supplies, prepaid mold and listed on Schedule 1.1(a)(vi)prototype costs, includingdeferred charges and other retentions held by third parties, but not limited to, the Lease (collectively, the "Transferred Contracts")whether capitalized or expensed and wherever located;
(vii) all of Seller's Inventorycustomer lists, wherever locatedcredit policies and credit information with respect to all customers of, used in and all cost and pricing data (including all historical information, if any) for, or with respect to the Business as such exists on the date hereof, as set forth in Schedule 1.1(a)(vii) hereofFunnoodle Product Line;
(viii) all supplier lists, product specifications, bills of materials, production routings and all other production information relating to the Funnoodle Product Line for the past five (5) years;
(ix) all existing business plans, advertising and promotional plans, product development plans, forecasts, market research reports, competitor information, and reference catalogs relating to the Funnoodle Product Line;
(x) all of the Seller's rights under all governmental licenses, certificates, permits permits, franchises, similar authorizations and approvals used in of the Business Seller relating directly and solely to the Funnoodle Product Line (the "PERMITS"), relating to or necessary to the lawful conduct of the Funnoodle Product Line as of the date hereofClosing Date (including all rights of the Seller to obtain renewals and extensions thereof, together with all causes of action in favor of the Seller heretofore accrued or hereafter accruing with respect thereto), in each case to the extent such items Permits are transferable (the "Permits"), as set forth on Schedule 1.1(a)(viii) hereoftransferable;
(ixxi) all transferable warranties, representations warranties and guarantees in favor of Seller pertaining primarily to the Business;Assets; and
(xxii) true and correct copies of all books and records of Seller relating to the Business, Funnoodle Product Line and the Assets (whether kept or maintained by the Seller or any third party) including, without limitation, copies of lists of customers and suppliers; records with respect to costs; , Inventory and Equipment; business development and marketing plans; advertising materials, catalogues, correspondence, mailing lists, art work, films, negatives, photographs, sales materials and records; purchasing materials and records; personnel records with respect to employees of the Businessmedia materials and plates; sales order files; plans, specifications, surveys, reports ledgers and other materials relating books of account of the Seller; other records required to continue the Leased Real PropertyFunnoodle Product Line as heretofore and now being conducted by the Seller; and all software programs, computer printouts, databases and related items of Seller related to the Business;
(xi) other assets, properties, rights and business of every kind and nature owned or held in a form which is readable by the Seller which relate to Buyer and used in the Business on the date hereof, known or unknown, fixed or unfixed, xxxxxx or inchoate, accrued, absolute, contingent or otherwise, whether or not specifically identified above, as more fully set forth in Schedule 1.1(a)(xi) hereof to the extent known, including, but not limited to, factory supplies and packing materials;
(xii) all accounts receivable of Seller on the date hereof which relate to the Business (the "Accounts Receivable"), a list of which is set forth on Schedule 1.1(a) (xii) hereof;
(xiii) the tax exemption benefits granted to Seafla, Inc. pursuant to the Enterprise Zone Agreement among Seller, the Board of Trustees of Miami Township, Clermont County, Ohio and the Board of County Commissioners of Clermont County, Ohio ratified by Clermont County, Ohio on May 20, 1993 to the extent assigned to Seller on December 6, 1995 pursuant to that certain Assignment of Tax Exemption Benefits by and among Seafla, Inc. and Seller (the "Tax Agreement") (the "Tax Exemption Benefits");
(xiv) an amount of cash equal to $50,000; and
(xv) all of the rights of Seller as beneficiary under that certain prepaid life insurance policy with Xxxxxxx Penn Life Insurance Company of New York on the life of Xxxxxxx X. Xxxxxxx, policy no. 0000311467, which policy is owned by Xx. Xxxxxxx and expires August 28, 1998Funnoodle Product Line.
(b) Notwithstanding anything contained herein to the contraryThe Assets shall exclude all assets, property and rights not listed in SCHEDULE 2.1(A), including, without limitation, the Assets shall specifically exclude the following assets and properties (the "Excluded AssetsEXCLUDED ASSETS"):
(i) all cash on hand, cash equivalents, investments (including, without limitation, stock, debt instruments, options and other instruments and securities) and bank deposits of Seller as of the date hereofSeller's right, including those held by Seller on behalf of title and interest in and to the Business, except all deposits in respect of unfilled orders existing on the date hereof and an amount, pursuant to Section 1.1(a)(xiv), equal to $50,000Transaction Documents;
(ii) all Tax refunds cash and recoveries and similar benefits of Seller concerning the Business which relate to any period arising or relating cash equivalents ("CASH") belonging to the operation of the Business by Seller prior to the date hereof, and all of Seller's income Tax Returns and Tax records concerning the Business for periods prior to the date hereof (except that copies of material Tax Returns and Tax records relating to the Business for the two (2) years prior to the date hereof shall be provided to Buyer at Closing)in hand or on deposit;
(iii) all accounts receivable of the Seller's rights under any Employee Benefit Plans relating , whether or not related to the BusinessFunnoodle Product Line;
(iv) any Inventory all assets and properties of the Seller used, held for use or raw materials stored or held useful in defective containers, as set forth on Schedule 1.1(b)(iv)connection with its business other than in the Funnoodle Product Line;
(v) except as provided in Section 1.1(a)(xvall items included on SCHEDULE 2.1(A)(II) hereof, all of Seller's rights under any Insurance Policies and any Contracts relating to the Business, other than the Transferred Contracts;
(vi) all claims, rights and choses in action of the machinerySeller, vehiclesincluding those related to Funnoodle Product Line;
(vii) all of the Seller's right, furniture, equipment title and personal property used interest in and to all products and product concepts not included in the Business specifically set forth on Schedule 1.1(b)(viFunnoodle Product Line, including those products which are not Protected Products (as defined in Section 5.7(a)(ii) hereof); and
(viiviii) all assets, properties, rights and interests of Seller which are not used in under its insurance policies and the Businessproceeds payable thereunder relating to the Funnoodle Product Line.
(c) The Buyer and the Seller acknowledge and agree that the Buyer is purchasing only the Funnoodle Product Line from the Seller, and that the Seller presently intends to continue to conduct its business activities, other than the Funnoodle Product Line, as set forth on Schedule 1.1(b)(vii)previously conducted.
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Samples: Asset Purchase Agreement (Toymax International Inc)
Assets to be Sold and Purchased. (a) Subject to Section 1.1(b) and the other terms and conditions hereof, Seller shall sell, assign, transfer, convey and deliver to Buyer free and clear of all Liens (other than Permitted Liens) (as defined in Section 2.9), and Buyer shall purchase from Seller, all of the Seller's right property, assets and title to the properties and assets of Seller which are rights used or held for use in the Business (collectively, the "Assets"), subject to all Assumed Liabilities, including:
(i) all of Seller's rightsright, title and interest in and to the real property in Milford, Ohio leased (the "Land") owned by Seller and used in the Business (the "Land"), and all of Seller's rights, title and interest in and to all buildings, improvements and fixtures constructed thereon (the "Improvements," and together with Land, the "Leased Real Property"), as set forth on Schedule 1.1(a)(i) hereof;
(ii) all of Seller's rights, title and interest rights in and to the rides, machinery, equipment, tools, supplies, spare parts, rolling stock, furniture and other tangible personal property owned by Seller and used or held for use in the Business and owned or leased by Seller or the General Partner (excluding Memorabilia as defined below owned by General Partner) (the "Equipment") on the date hereof as set forth on Schedule 1.1(a)(ii) hereofClosing Date;
(iii) all proceeds from the sale of Seller's rights, title and interest in, to and under all patents, patent applications (including patents issuing on such applications), registered or unregistered trade names, trademarks, copyrights, service marks and applications owned by Seller and used in the Business, as set forth on Schedule 1.1(a)(iii), whether filed or to be filed in connection therewith (including, without limitation, all of Seller's rights to use the name "Seafla, Inc." season passes and any derivation thereof but excluding rights other pre-sold tickets with respect to use the name "Technology Flavors & Fragrances, Inc.," or any derivation thereof), and all licenses and sublicenses of Seller used in the Business (including all reissues, renewals, continuations or extensions 1997 season of the foregoing)Park ("Prepaid Deposits") as of the Closing Date;
(iv) all of Seller's rights in, to and under all patents, patent applications, trade names, trademarks, copyrights, servicemarks, trademark and servicemark registrations and applications (including, without limitation, all of Seller's right to use the name "Elitch Gardens" and any derivation thereof), whether or not used in the Business, subject to a perpetual, irrevocable and nontransferable license to use the words "Elitch" and "Elitch's" (A) granted to the Elitch's Youth Foundation, and (B) as part of the name "Historic Elitch's" or "Old Elitch's" granted to Seller or an assignee of Seller in connection with the historic theater now located at the old Elitch's Park site at 38th and Tennyson Streets;
(v) all of Seller's rights in, to and under trade secrets, processes, technology, formulae, formulae and specifications and technical know-how of Seller how, whether currently being used in the Businessor under development, including, but not limited to, including engineering and other drawings, data, designs design and specifications, product literature and related materials materials, in each case which are owned or licensed by Seller as of the Closing Date (together with the intellectual property described in Section 1.1(a)(iii1.1(a)(iv), the "Intellectual Property Rights") and all of Seller's books, operating manuals, records, business forms records and computer data and programs relating thereto, all as set forth on Schedule 1.1(a)(iv);
(vvi) all of Seller's rights in, to and under the goodwill of the Business;
(vivii) all of Seller's rights rights, subject to the Assumed Liabilities, under all Contracts of Seller used in the Business and listed on Schedule 1.1(a)(vi1.1(a)(vii), including, but not limited to, including the Lease Ascent Agreement and the Centennial Park Agreement (collectively, the "Transferred Contracts") and all prepaid expenses, claims and other prepayments, including security deposits and other retentions held by third parties, with respect to the Transferred Contracts as of the Closing Date, provided, that Buyer's obligations under the Centennial Park Agreement with respect to the development thereof shall not exceed $100,000 (the "Maximum Amount");
(viiviii) all of Seller's Inventory, wherever located, used in with respect to the Business as such exists on the date hereof, as set forth in Schedule 1.1(a)(vii) hereofClosing Date;
(viiiix) all of Seller's rights under all governmental licenses, certificates, permits and approvals used in (the "Permits") relating to or necessary to the conduct of the Business as of the date hereofClosing Date, to the extent such items Permits are transferable (the "Permits"), as set forth on Schedule 1.1(a)(viii) hereof;
(ix) all transferable warranties, representations and guarantees in favor of Seller pertaining primarily to the Business;transferable; and
(x) all books and records of Seller relating to the BusinessBusiness and the Assets and owned by Seller (but not those items of memorabilia and historic interest with respect to the old Elitch's Park ("Memorabilia") owned on the date hereof by the General Partner), whether kept or maintained by Seller, the General Partner or any third party, including, without limitation, copies of lists of customers and suppliers; admission tickets; season passes; records with respect to costs; Inventory and Equipment; business development and marketing plans; advertising materials, catalogues, correspondence, mailing lists, photographs, sales materials and records; purchasing materials and records; personnel records with respect to employees of the Business; media materials and plates; videotapes and films; sales order files; records, supporting documents and exemption certificates with respect to sales Taxes; ledgers and other books of account; plans, specifications, surveys, reports and other materials relating to the Leased Real Property; other records required to continue the Business as heretofore and now being conducted by or on behalf of Seller; and all software programs, computer printouts, databases and related items of Seller related with respect to the foregoing or otherwise used in the Business;
(xi) other assets. The General Partner intends to provide Buyer, propertiesafter the Closing, rights and business of every kind and nature owned or held by the Seller which relate with access to the Memorabilia in connection with Buyer's operation of the Business on the date hereof, known or unknown, fixed or unfixed, xxxxxx or inchoate, accrued, absolute, contingent or otherwise, whether or not specifically identified above, at such times and for purposes as more fully set forth in Schedule 1.1(a)(xi) hereof shall be acceptable to the extent known, including, but not limited to, factory supplies and packing materials;
(xii) all accounts receivable of Seller on the date hereof which relate to the Business (the "Accounts Receivable"), a list of which is set forth on Schedule 1.1(a) (xii) hereof;
(xiii) the tax exemption benefits granted to Seafla, Inc. pursuant to the Enterprise Zone Agreement among Seller, the Board of Trustees of Miami Township, Clermont County, Ohio and the Board of County Commissioners of Clermont County, Ohio ratified by Clermont County, Ohio on May 20, 1993 to the extent assigned to Seller on December 6, 1995 pursuant to that certain Assignment of Tax Exemption Benefits by and among Seafla, Inc. and Seller (the "Tax Agreement") (the "Tax Exemption Benefits");
(xiv) an amount of cash equal to $50,000; and
(xv) all of the rights of Seller as beneficiary under that certain prepaid life insurance policy with Xxxxxxx Penn Life Insurance Company of New York on the life of Xxxxxxx X. Xxxxxxx, policy no. 0000311467, which policy is owned by Xx. Xxxxxxx and expires August 28, 1998General Partner.
(b) Notwithstanding anything contained herein to the contrary, the The Assets shall specifically exclude the following assets and property (the "Excluded Assets"):
(i) all of Seller's rights, title and interest in and to the Transaction Documents;
(ii) cash on hand, cash equivalents, investments (including, without limitation, stock, debt instruments, options and other instruments and securities) and bank deposits (other than the Accounts) of Seller as of the date hereof, including those held by Seller on behalf of the Business, except all deposits in respect of unfilled orders existing on the date hereof and an amount, pursuant to Section 1.1(a)(xiv), equal to $50,000Closing Date;
(iiiii) all of the accounts receivable of Seller as of the Closing Date;
(iv) Tax refunds and recoveries and similar benefits of Seller concerning the Business which relate to any period arising or relating to the operation of the Business by Seller prior to the date hereofSeller, and all of Seller's income Tax Returns and Tax records concerning as of the Business for periods prior to the date hereof (except that copies of material Tax Returns and Tax records relating to the Business for the two (2) years prior to the date hereof shall be provided to Buyer at Closing)Closing Date;
(iiiv) all minute books and partnership records of Seller;
(vi) Seller's rights under any Employee Benefit Plans relating to the BusinessPlans;
(ivvii) any Inventory or raw materials stored or held in defective containers, as set forth on Schedule 1.1(b)(iv);
(v) except as provided in Section 1.1(a)(xv) hereof, all of Seller's rights under any Insurance Policies and any Contracts relating to the Businessor other Contracts, other than the Transferred Contracts;
(viviii) the machinery, vehicles, furniture, equipment and personal property used in the Business specifically set forth all claims by Seller against those parties with respect to those matters disclosed on Schedule 1.1(b)(vi1.1(b)(viii); and
(viiix) all assetsassets relating to any of the operations of the General Partner, properties, rights and interests of Seller which are not used in other than the Business, as set forth on Schedule 1.1(b)(vii).
Appears in 1 contract
