Assets to be Sold. On the Closing Date, subject to the terms and conditions set forth herein, Seller shall, provided that all of the conditions set forth in Section 7 hereto have been satisfied, sell, assign, transfer, convey and deliver to Buyer, and Buyer shall purchase and take from Seller, in each case effective as of July 1, 2011 (the “Effective Date”), all of Seller’s right, title and interest in and to the following assets in clauses (a) through (f) below (collectively, the “Sold Assets”), free and clear of all liabilities, debts, mortgages, liens, and encumbrances except as set forth in this Agreement: a. The Containers; such Containers being hereinafter referred to, collectively, as the “Sale Containers”; b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”), in each case, to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease); c. All of Seller’s right, title and interest in and to (i) any purchase agreement pursuant to which Seller acquired any of the Sale Containers, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container; d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Date, including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued with respect to the Sale Containers on or after the Effective Date; and e. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers that are maintained on behalf of Seller by CCC in the ordinary course of business (the “Books and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containers.
Appears in 4 contracts
Samples: Asset Sale Agreement (Cronos Global Income Fund Xvi Lp), Asset Sale Agreement (Cronos Global Income Fund Xv Lp), Asset Sale Agreement (Cronos Global Income Fund Xvi Lp)
Assets to be Sold. On the Closing Date, subject to Upon the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in Section 7 hereto have been satisfiedthis Agreement, at the Closing, Seller shall sell, convey, assign, transfer, convey transfer and deliver to Buyer, and Buyer shall purchase and take acquire from Seller, in each case effective as free and clear of July 1, 2011 (the “Effective Date”)any encumbrances other than any permitted herein, all of Seller’s 's right, title and interest in and to all of Seller's property and assets, real, personal or mixed, tangible and intangible, of every kind and description, wherever located, including the following assets in clauses (the "Assets"):
(a) through all tangible personal property, as listed in Exhibit "A" (the "Tangible Personal Property");
(b) all cash on deposit, cash equivalents and short-term investments on hand prior to consummation of this transaction, including those amounts received from a business forwhich Seller has agreed to provide PEO services("Clients") in connection with the performance by Clients of obligations under their PEO Contracts with Seller and for which Seller has a corresponding obligation that constitutes an Assumed Liability and all funds on deposit or in restricted accounts for the purpose of securing insurance coverage.
(c) all accounts receivable, as listed in Exhibit "B" (the "Accounts Receivable");
(d) all contracts with customers and suppliers, as listed in Exhibit "C", which includes all outstanding offers or solicitations made by or to Seller to enter into any contract (the "Contracts");
(e) all Governmental Authorizations and all pending applications therefor or renewals thereof, as listed in Exhibit "D" (the "Governmental Authorizations");
(f) below all insurance programs being offered by Seller to its PEO (collectively, the “Sold Assets”), free and clear of all liabilities, debts, mortgages, liens, and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectivelyProfessional Employer Organization) customers, as listed in Exhibit "E" (the “Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”), in each case, to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease"Insurance Programs");
c. All of Seller’s right, title and (g) all interest in and to securities owned of all subsidiary operations and corporations as listed in Exhibit "F":
(h) all claims for refund of taxes and other governmental charges of whatever nature; and
(i) any purchase agreement pursuant all data and records related to the operations of Seller, including client and customer lists and records, referral sources, market research reports, financial and accounting records, advertising materials, promotional materials, correspondence and other similar documents and records, which Seller acquired any shall be preserved by Buyer as provided in Paragraph 10.8, below;
(j) all of the Sale Containersintangible rights and property of Seller, including intellectual property assets, telephone, telecopy and e-mail addresses and listings;
(iik) warranties by the manufacturers or original sellers all claims of the Sale Containers, in each case, Seller against third parties relating to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Date, including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued with respect to the Sale Containers on or after the Effective DateAssets; and
e. All books(1) all rights of Seller relating to deposits and prepaid expenses, files, papers, correspondence, databases, documents, records claims for refunds and other documentation thereof regarding any rights to offset in respect thereof. The transfer of the Sale Containers Assets pursuant to this Agreement shall not include the assumption of any liability related to the Assets unless Buyer expressly assumes that are maintained on behalf of Seller by CCC in the ordinary course of business (the “Books and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containersliability herein.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Resourcing Solutions Group Inc), Asset Purchase Agreement (Resourcing Solutions Group Inc), Asset Purchase Agreement (Resourcing Solutions Group Inc)
Assets to be Sold. On the Closing Date, subject to Upon the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in Section 7 hereto have been satisfiedthis Agreement, at the Closing, but effective as of the Effective Time, Seller shall sell, convey, assign, transfer, convey transfer and deliver to Buyer, and Buyer shall purchase and take acquire from Seller, in each case effective as free and clear of July 1, 2011 (the “Effective Date”)any Liens other than Permitted Liens, all of Seller’s right, title and interest in and to the following property and assets of Seller used in clauses the Business (but excluding the Excluded Assets):
(a) through all Tangible Personal Property set forth on Schedule 2.1(a);
(b) all Inventories set forth on Schedule 2.1(b);
(c) those Seller Contracts (including related customer purchase orders and Seller purchase orders to suppliers) set forth on Schedule 2.1(c);
(d) all customer Proposals for products in the Product Line set forth on Schedule 2.1(d);
(e) all data and records related Primarily to the Business, including client and customer lists and records, referral sources, research and development reports and records, production reports and records, service and warranty records, equipment logs, operating guides and manuals, product designs, drawings, and schematics, financial and accounting records, creative materials, advertising materials, promotional materials, studies, reports, correspondence and other similar documents and records and other records set forth on Schedule 2.1(e);
(f) below those intangible rights and property of Seller licensed to Buyer pursuant to the License Agreement and all of the other intangible rights and property of Seller Primarily relating to the Business, including Seller’s Intellectual Property assets, Intellectual Property Rights, going concern value and goodwill and Trademarks Primarily related to the Product Line (collectively, other than the C-COR name and other Excluded Assets) and those items set forth on Schedule 2.1(f) (the “Sold Intellectual Property Assets”);
(g) all insurance benefits, free including rights and clear proceeds, arising from or relating to the Assets (as defined below) or the Assumed Liabilities prior to the Effective Time, unless expended in accordance with this Agreement;
(h) all claims of Seller against third parties relating to the Assets, whether xxxxxx or inchoate, known or unknown, contingent or non-contingent, including all such claims set forth on Schedule 2.1(h);
(i) a pro rata portion of all liabilitiesrights of Seller relating to deposits (i.e., debtsthe amount of any such deposits which has not been earned by Seller prior to Closing), mortgages, liensall prepaid expenses, and encumbrances except as set forth all claims for refunds and rights to offset in this Agreement:respect of the Business that are not excluded under Section 2.2(f);
a. The Containers(j) other than the accounts receivable for the Excluded Orders and customer orders where the goods are shipped but not invoiced, any accounts receivable arising from the Business which Seller has not actually earned prior to the Closing Date, including accounts receivable for services not yet performed; such Containers being hereinafter and
(k) miscellaneous manufacturing tools and supplies, and all other assets and personal properties of Seller used Primarily in the Business and necessary for the manufacture, maintenance, support and sustaining engineering of the Product Line. All of the property and assets to be transferred to Buyer hereunder are herein referred to, collectively, to collectively as the “Sale Containers”;
b. All rightAssets.” Notwithstanding the foregoing, title and interest the transfer of the Seller in Assets pursuant to this Agreement shall not include the assumption of any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”), in each case, Liability related to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed Assets unless Buyer expressly assumes that containers owned by various persons may be subject to the terms of a Lease);
c. All of Seller’s right, title and interest in and to (i) any purchase agreement Liability pursuant to which Seller acquired any of the Sale Containers, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Date, including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued with respect to the Sale Containers on or after the Effective Date; and
e. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers that are maintained on behalf of Seller by CCC in the ordinary course of business (the “Books and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale ContainersSection 2.4.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (C-Cor Inc)
Assets to be Sold. On the Closing Date, subject Subject to the terms and conditions set forth hereinof this Agreement, Seller shallhereby agrees to sell, provided that convey, assign, transfer and deliver to Purchaser at the Closing (as hereinafter defined) and Purchaser hereby agrees to acquire, for the consideration hereinafter provided, all of the conditions set forth assets, properties, rights, titles and privileges of Seller of every kind, character and description, whether tangible, intangible, real, personal or mixed, of whatever description and wherever located, involved in, related to, owned, used or held for use or useful in Section 7 hereto have been satisfiedconnection with the ownership, sell, assign, transfer, convey use or operation of the System and deliver to Buyer, and Buyer shall purchase and take from Seller, in each case effective as all other assets of July 1, 2011 (the “Effective Date”), all of Seller’s right, title and interest in and Seller relating to the following assets System whether or not required to be listed on Seller's balance sheet in clauses (a) through (f) below (collectively, the “Sold Assets”), free and clear of all liabilities, debts, mortgages, liens, and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as the “Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”), in each case, to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease);
c. All of Seller’s right, title and interest in and to (i) any purchase agreement pursuant to which Seller acquired any of the Sale Containers, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Dateaccordance with generally accepted accounting principles, including, without limitation, payments of rentall additions, termination values, casualty values accessions and insurance payments accrued with respect substitutions made prior to the Sale Containers Closing as permitted pursuant to the terms of this Agreement (collectively, the "Assets"), but excluding the Excluded Assets (defined below) and assets disposed of by Seller between the date hereof and the Closing Date on or after the Effective Date; and
e. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers that are maintained on behalf of Seller by CCC an arms' length basis in the ordinary course of business business. The Assets include, without limitation, the following:
(a) all of the real property interests of Seller relating to the System (collectively, the "Real Property");
(b) all items of tangible personal property owned, used, held for use or useful by Seller in the operation of the System, including, without limitation, all equipment relating to the System (collectively, the "Equipment"); and
(c) all the rights of Seller under any and all franchises, licenses (including those required by the FCC), permits, authorizations, easements, registrations, leases, variances, consents and certificates and similar rights which authorize or are required in connection with the operation of the System, including any applications for any of the foregoing (collectively, the "Governmental Permits") that are obtained from or are pending with any federal, state, county, municipal, local or foreign government and any governmental agency, bureau, commission, authority, body, court (or other judicial body), administrative or executive agency, legislative or quasi-legislative body, commission, council or other agency, including any such agency, authority or body responsible for the issuance or administration of any Governmental Permit or whose consent is required for the sale and transfer of the Assets (each, a "Governmental Authority") and all subscription contracts with subscribers of Seller relating to the System, pole attachment agreements, access agreements and all other contracts, leases, agreements or undertakings (other than those that are included in the Excluded Assets or which constitute Governmental Permits), written or oral, relating to the ownership, operation or maintenance of the System and/or the Assets (the “Books and Records”"Contracts"); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containers.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Charter Communications Southeast Lp), Asset Purchase Agreement (Charter Communications Southeast Lp)
Assets to be Sold. On the Closing Date, subject to Upon the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in Section 7 hereto have been satisfiedthis Agreement, at the Closing, but effective as of the Effective Time, Seller shall sell, convey, assign, transfer, convey transfer and deliver to Buyer, and Buyer shall purchase and take acquire from Seller, in each case effective as of July 1, 2011 (the “Effective Date”), all of Seller’s right, title and interest in and to the following assets in clauses (a) through (f) below (collectively, the “Sold Assets”), free and clear of any Encumbrances other than Permitted Encumbrances, all liabilities, debts, mortgages, liens, and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as the “Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”), in each case, to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease);
c. All of Seller’s 's right, title and interest in and to (i) any purchase agreement pursuant to which Seller acquired all personal property and assets located at any of the Sale ContainersFacilities and used in connection with or otherwise relating to the business of the Division, and (ii) warranties by all other personal property and assets, tangible and intangible, of every kind and description, wherever located, used solely in connection with the manufacturers or original sellers business of the Sale ContainersDivision, including in each case the following (but excluding the Excluded Assets):
(a) all Tangible Personal Property;
(b) all Inventories;
(c) all Accounts Receivable;
(d) all Seller Contracts, and all outstanding offers or solicitations made by or to Seller to enter into any Contract relating solely to the business of the Division;
(e) all Governmental Authorizations relating to the business of the Division and all pending applications therefor or renewals thereof, in each case, case to the extent transferable to Buyer;
(but only f) all data and Records related to the extentbusiness of the Division, including client and customer lists and Records, referral sources, research and development reports and Records, production reports and Records, service and warranty Records, equipment logs, operating guides and manuals, financial and accounting Records, creative materials, advertising materials, promotional materials, studies, reports, correspondence and other similar documents and Records and, subject to Legal Requirements, copies of all personnel Records and other Records described in Section 2.2(f);
(g) that such purchase agreement all of the intangible rights and property of Seller used in connection with or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease otherwise relating to the extent (but only to the extent) that such security deposit relates to a Sale ContainerDivision, including Intellectual Property Assets, going concern value, goodwill and telephone and telecopy addresses and listings;
d. All proceeds (h) all rights of Seller relating to deposits and prepaid expenses of the Sale Containers Division, claims for refunds and rights to the extent accrued on or after the Effective Date, including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued with offset in respect to the Sale Containers on or after the Effective Datethereof that are not excluded under Section 2.2(g); and
e. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers that are maintained on behalf of Seller by CCC in the ordinary course of business (the “Books and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containers.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Eagle Picher Holdings Inc), Asset Purchase Agreement (Noble International LTD)
Assets to be Sold. On the Closing Date, subject to the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in Section 7 hereto have been satisfiedthis Agreement, at Closing, Seller shall sell, assign, transfer, convey transfer and deliver assign to BuyerPurchaser, and Buyer Purchaser shall purchase and take receive from Seller, in each case effective as of July 1, 2011 (the “Effective Date”), all of Seller’s right, title and interest in and to the following properties, assets and rights (except the Excluded Assets as hereinafter defined) related to or used or held for use in clauses connection with the Location as the same may exist as of the Closing (ahereinafter defined) through (f) below (collectively, the “Sold Assets”):
(a) Any real property owned or leased by Seller at the Location more particularly described on Schedule 1.1(a), free together with all buildings, improvements, easements and clear of all liabilities, debts, mortgages, liens, appurtenances thereon and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as the “Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date thereto (each, a “Lease” and collectively, the “LeasesReal Property”), in each case, to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease);
c. (b) All inventories of Seller’s rightmerchandise, title supplies and interest in and to (i) any purchase agreement pursuant to which Seller acquired any of the Sale Containers, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held motor fuels owned by Seller under a Lease to present at the extent Location at Closing (but only to collectively, the extent) that such security deposit relates to a Sale Container“Inventory”);
d. (c) Any furniture, fixtures, equipment and other tangible personal property owned by Seller and now situated at the Real Property, which may include the items listed in Schedule 1.1(b) (collectively, the “Tangible Personal Property”);
(d) All proceeds of motor fuel fixtures and equipment now attached to or used in connection with the Sale Containers to the extent accrued on or after the Effective Date, Real Property including, without limitation, payments of rentany petroleum pumps and dispensers, termination valuesunderground fuel storage tanks, casualty values canopies, fuel lines, fittings and insurance payments accrued with respect to the Sale Containers on or after the Effective Date; and
e. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers that are maintained on behalf of Seller by CCC connections used in the ordinary course of business at the Real Property to receive, store and dispense motor fuels (collectively, the “Books and RecordsFuel Equipment”); ;
(e) Except as otherwise provided, howeverto the extent that the same may be transferred pursuant to their respective terms and applicable laws, thatrules and regulations, any operating permits, underground storage tank notifications or registrations, if any, and other permits, licenses, filings and other governmental authorizations, agreements, contracts, and approvals;
(f) Any plans and specifications, surveys, blueprints and drawings in Seller’s possession now or as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands Closing related solely to any buildings and improvements at the Location; and
(“CAY”)g) Any and all rights, manages the Sale Containers for Buyer, then duties and in such event the Books and Records shall be maintained by and obligations of Seller as contained in the possession of CAY, except real estate lease contracts as otherwise directed by Buyer as owner of the Sale Containersset forth on Schedule 1.1(g) hereof.
Appears in 2 contracts
Assets to be Sold. On Seller shall deliver to Buyer at the Closing Date, subject to the terms and conditions set forth herein, Seller shall, provided that an Absolute Bill of Sale for all Assets. A complete list of all of the conditions set forth in Section 7 hereto have been satisfiedassets which are subject to this sale, sellare attached to this Agreement as Exhibit “A”. Seller warrants that it has, assignor will at the closing of this transaction, transfer, convey good and deliver to Buyer, and Buyer shall purchase and take from Seller, in each case effective as of July 1, 2011 (the “Effective Date”), all of Seller’s right, title and interest in and to the following assets in clauses (a) through (f) below (collectively, the “Sold Assets”)marketable title, free and clear of all liabilitiesliens and encumbrances, debtsexcept any liens or encumbrances disclosed herein, mortgages, liens, and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as the “Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”), in each case, to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease);
c. All of Seller’s right, title and interest in and to (i) any purchase agreement pursuant to which Seller acquired any of the Sale Containers, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Date, including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued with respect to the Sale Containers items to be listed on Exhibit “A”. Buyer shall receive a copy of the Exhibit “A” at the time of execution of this contract and, as of execution of this contract, acknowledge that all of the assets contained on Exhibit “A” are the assets of personal property and assets to be transferred by Seller pursuant to this agreement, which shall include a disclaimer of all warranties, expressed, implied or statutory. Buyer shall have ten (10) business days after receipt of Exhibit “A”, within which to cancel this Contract after which all parties shall be discharged from all further liability under the Effective Date; and
e. All booksterms of this contract. Assets shall also include all (i) trademarks, filesservice marks, papersbrand names, correspondencecertification marks, databasescollective marks, documentsd/b/a’s, records domain names, logos, symbols, trade dress, assumed names, fictitious names, trade names, and other documentation thereof regarding any indicia of origin, all applications and registrations for the Sale Containers that are maintained on behalf foregoing, and all goodwill associated therewith and symbolized thereby, including all renewals of Seller by CCC in the ordinary course of business same (the collectively, “Books Trademarks”): (ii) inventions and Recordsdiscoveries, whether patentable or not, and all patents, registrations, invention disclosures and applications therefor, including divisions, continuations, continuations-in-part and renewal applications, and including renewals, extensions and reissues (collectively, “Patents”); provided(iii) trade secrets, howeverand know-how, thatincluding processes, as long as CCC’s affiliateschematics, Cronos Containers business methods, formulae, drawings, prototypes, models, designs, customer lists and supplier lists (Cayman) Ltd.collectively, a company organized and existing under the laws of the Cayman Islands (“CAYTrade Secrets”); (iv) published and unpublished works of authorship, manages the Sale Containers for Buyerwhether copyrightable or not (including without limitation databases and other compilations of information), then including mask rights and in such event the Books computer “software, copyrights therein and Records shall be maintained thereto, registrations and applications therefor, and all renewals, extensions, restorations and reversions thereof (collectively, “Copyrights”); (v) any other intellectual property or proprietary rights; and (vi) all formulas, recipes, binders, processes, techniques, discoveries and applications relating to fire inhibiting and fire extinguishing products, including, by way of example, all formulas, recipes, binders, processes, techniques, discoveries and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containersapplications related to Sellers product lines.
Appears in 2 contracts
Samples: Exclusive License/Manufacturing Agreement (Megola Inc), Exclusive License/Manufacturing Agreement (Megola Inc)
Assets to be Sold. On the Closing Date, subject to the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in Section 7 hereto have been satisfiedthis Agreement, at Closing, Sellers shall sell, assign, transfer, convey transfer and deliver assign to BuyerPurchaser, and Buyer Purchaser shall purchase and take receive from Seller, in each case effective as of July 1, 2011 (the “Effective Date”), Seller all of each Seller’s right, title and interest in and to the following properties, assets and rights related to or used or held for use in clauses (a) through (f) below connection with the Locations as the same may exist as of Closing, except to the extent they are Excluded Assets (collectively, the “Sold Assets”):
(a) The following real property and interest therein:
(i) Any real property owned by a Seller comprising the Locations more particularly described on Schedule 1.1(a)(i), free together with all buildings and clear improvements erected thereon and any easements, rights-of-way or use, privileges, licenses, variances, non-conforming use rights, development rights and approvals, zoning rights and approvals, hereditaments, appurtenances, interests and other rights belonging to or inuring to the benefit of such parcel of land and any and all liabilities, debts, mortgages, liens, and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as the “Sale Containers”;
b. All right, title and interest of the Seller in and to any lease land lying in the bed of any highway, street, road or avenue, opened or proposed, abutting or adjoining such parcels of land, subject only to which any Sale Container is subject on the Effective Date Permitted Encumbrances (each, a “Lease” and collectively, the “Purchased Owned Real Properties”);
(ii) Any real property leases, including all rights and interests of any Seller under any ground lease, with a Seller as lessee and a third party, unaffiliated with any Seller, as lessor (the “Purchased Leases”) more particularly described on Schedule 1.1(a)(ii), covering the Locations more particularly described on Schedule 1.1(a)(ii), (collectively, the “Purchased Leased Real Properties” and, together with the Purchased Owned Real Properties, the “Real Properties”);
(b) All buildings and other improvements, together with all machinery, fixtures, equipment, car wash equipment, heating, plumbing, electrical, lighting, ventilating and air-conditioning equipment (excluding Fuel Equipment) owned by a Seller and now situated at the Locations (collectively, the “Tangible Personal Property”);
(c) The leases and other agreements with tenants of the Real Properties, as listed on Schedule 1.1(c) (collectively, “Tenant Leases”), in each case, to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease);
c. (d) All of Seller’s rightfuel fixtures and equipment now attached to or used in connection with the Purchased Owned Real Properties and Purchased Leased Real Properties, title including without limitation all petroleum pumps and interest in dispensers, underground and to (i) any purchase agreement pursuant to which Seller acquired any of the Sale Containersaboveground fuel storage tanks, (ii) warranties by the manufacturers or original sellers of the Sale Containerscanopies, in each casefuel lines, to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, fittings and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Date, including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued with respect to the Sale Containers on or after the Effective Date; and
e. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers that are maintained on behalf of Seller by CCC connections used in the ordinary course of business to receive, store and/or dispense fuels as described on Schedule 1.1(d) (collectively, the “Fuel Equipment”);
(e) All plans, specifications, construction documents, blueprints, real estate files, environmental studies and reports, inspection reports, surveys, underground storage tank registrations and reports, financial records (which shall consist of copies of such records for the past year and subsequent periods pertaining to the business conducted by Sellers at each Location), and government compliance files in any Seller’s possession or control now or as of the Closing related solely to any buildings and improvements at the Fee/Leased Locations or the Sellers’ operations at the Real Properties (collectively, the “Books and Records”);
(f) Rights to proceeds from any state petroleum storage tank fund for claims relating to a Location, except those that relate to Remedial Measures (as defined in Section 8.7 below) previously paid for or accrued by a Seller for claims relating to a Location (the “Fund Proceeds”); providedand (ii) condemnation proceeds relating to a Location or access to or parking for a Location received by a Seller before or after the Effective Date of this Agreement that relate to relocation or repairs that have not been done by the Seller;
(g) The trade names “Zoomerz,” “Zoomerz Freezie,” “The Original Energy Drink,” “PureJava,” and “Pure Java the Original Energy Drink” and all derivatives thereof, howeverand any and all related trademarks and trade dress;
(h) The rights of first refusal and/or purchase options as listed on the attached Schedule 1.1(h) (collectively, thatthe “ROFR’s and Options”);
(i) The Motor Fuel Supply Agreement (Branded) dated April 15, as long as CCC’s affiliate2011, Cronos Containers by and between Xxxxxx Petroleum, Inc. and Mountain View Express, LLC (Caymanthe “Mountain View Supply Agreement”); and
(j) Ltd.All other assets of Sellers, a company organized and existing under the laws rights, claims, causes of action, judgments and warranties (express or implied) in favor of the Cayman Islands (“CAY”)Sellers, manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner relating to any or all of the Sale ContainersAssets or otherwise relating to the operation of the Locations.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Lehigh Gas Partners LP)
Assets to be Sold. On the Closing Date, subject to Upon the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in Section 7 hereto have been satisfiedthis Agreement, at the Closing, Seller shall sell, convey, assign, transfer, convey transfer and deliver to Buyer, and Buyer shall purchase and take acquire from Seller, in each case effective as free and clear of July 1, 2011 (the “Effective Date”)any encumbrances other than any permitted herein, all of Seller’s 's right, title and interest in and to all of Seller's property and assets, real, personal or mixed, tangible and intangible, of every kind and description, wherever located, including the following assets in clauses (the "Assets"):
(a) through all tangible personal property, as listed in Exhibit "A" (the "Tangible Personal Property");
(b) all cash on deposit, cash equivalents and short-term investments on hand prior to consummation of this transaction, including those amounts received from a business forwhich Seller has agreed to provide PEO services("Clients") in connection with the performance by Clients of obligations under their PEO Contracts with Seller and for which Seller has a corresponding obligation that constitutes an Assumed Liability and all funds on deposit or in restricted accounts for the purpose of securing insurance coverage.
(c) all accounts receivable, as listed in Exhibit "B" (the "Accounts Receivable");
(d) all contracts with customers and suppliers, as listed in Exhibit "C", which includes all outstanding offers or solicitations made by or to Seller to enter into any contract (the "Contracts");
(e) all Governmental Authorizations and all pending applications therefor or renewals thereof, as listed in Exhibit "D" (the "Governmental Authorizations"); Asset Purchase Agreement 10/06/03 TRSG and Asmara
(f) below all insurance programs being offered by Seller to its PEO (collectively, the “Sold Assets”), free and clear of all liabilities, debts, mortgages, liens, and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectivelyProfessional Employer Organization) customers, as listed in Exhibit "E" (the “Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”), in each case, to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease"Insurance Programs");
c. All of Seller’s right, title and (g) all interest in and to securities owned of all subsidiary operations and corporations as listed in Exhibit "F":
(h) all claims for refund of taxes and other governmental charges of whatever nature; and
(i) any purchase agreement pursuant all data and records related to the operations of Seller, including client and customer lists and records, referral sources, market research reports, financial and accounting records, advertising materials, promotional materials, correspondence and other similar documents and records, which Seller acquired any shall be preserved by Buyer as provided in Paragraph 10.8, below;
(j) all of the Sale Containersintangible rights and property of Seller, including intellectual property assets, telephone, telecopy and e-mail addresses and listings;
(iik) warranties by the manufacturers or original sellers all claims of the Sale Containers, in each case, Seller against third parties relating to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Date, including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued with respect to the Sale Containers on or after the Effective DateAssets; and
e. All books(1) all rights of Seller relating to deposits and prepaid expenses, files, papers, correspondence, databases, documents, records claims for refunds and other documentation thereof regarding any rights to offset in respect thereof. The transfer of the Sale Containers Assets pursuant to this Agreement shall not include the assumption of any liability related to the Assets unless Buyer expressly assumes that are maintained on behalf of Seller by CCC in the ordinary course of business (the “Books and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containersliability herein.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Resourcing Solutions Group Inc), Asset Purchase Agreement (Resourcing Solutions Group Inc)
Assets to be Sold. (a) On the Closing Date, and subject to the terms and conditions set forth hereinof this Agreement, Seller shall, provided that all of the conditions set forth in Section 7 hereto have been satisfied, shall sell, assign, assign and transfer, convey and deliver will cause the Selling Subsidiaries to Buyersell, assign and transfer, to Buyer shall purchase and take from Seller, in each case effective as of July 1, 2011 (the “Effective Date”), all of Seller’s and the Selling Subsidiaries’ right, title and interest in and to the following assets in clauses (a) through (f) below (collectively, the “Sold Purchased Assets”), free and clear of all liabilitiesLiens other than Permitted Liens, debts, mortgages, liens, and encumbrances except as set forth in this Agreement:provided herein.
a. The Containers; such Containers being hereinafter referred to, collectively(b) Such transfers will be effected by Seller or one or more Selling Subsidiaries, as the “Sale Containers”;
b. All rightcase may be, title and interest of the Seller in any lease transferring to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”)Buyer, in each case, to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged as shall be mutually agreed upon by Seller and agreed that containers owned by various persons may be subject to the terms of a Lease);
c. All of Seller’s rightBuyer, title and interest in and pursuant to (i) any purchase agreement pursuant one or more bills of sale as shall be necessary to which Seller acquired any transfer to Buyer good and valid title to all the Acquired Assets other than Transferred Real Property, free and clear of all Liens other than Permitted Liens (the Sale Containers“Bills of Sale”), (ii) warranties by one or more assignment and assumption agreements as shall be necessary to assign and transfer to Buyer all the manufacturers Assumed Agreements (or original sellers of the Sale Containers, in each case, portions thereof relating to the extent Patient Monitoring Business or the Purchased Assets) to be assigned and transferred to Buyer at the Closing (but only to the extent) that such purchase agreement or warranty relates to a Sale Container“Contract Assignments”), and (iii) any security deposit(sthe Conveyancing Documents, (iv) held by Seller under a Lease one or more general assignments as shall be necessary to assign to Buyer all of the rights to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Date, including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued with respect to the Sale Containers on or after the Effective Date; and
e. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers that are maintained on behalf of Seller by CCC in the ordinary course of business Transferred Trademarks (the “Books and RecordsTrademark Assignments”); provided, however, thatthat it shall be Buyer’s responsibility to prepare any applicable country trademark assignments and to record them, at its own expense, following execution by Seller (or the applicable Selling Subsidiaries), (v) one or more general assignments as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws shall be necessary to assign to Buyer all of the Cayman Islands rights to the Copyrights comprised in the Transferred Copyrights and Know-How (the “CAYCopyright and Know-How Assignments”); provided, manages the Sale Containers for Buyerhowever, then and in such event the Books and Records that it shall be maintained Buyer’s responsibility to prepare any applicable country copyright assignments and to record them, at its own expense, following execution by Seller (or the applicable Selling Subsidiaries), and in the possession of CAY, except (vi) one or more general assignments as otherwise directed by shall be necessary to assign to Buyer as owner all of the Sale Containersrights to the Transferred Patents (the “Patent Assignments” and, together with the Bills of Sale, the Contract Assignments, the Conveyancing Documents, the Trademark Assignments and the Copyright and Know-How Assignments, the “Asset Transfer and Assumption Agreements”); provided, however, that it shall be Buyer’s responsibility to prepare any applicable country-specific intellectual property assignments and to record them, at its own expense, following execution by Seller (or the applicable Selling Subsidiaries).
(c) If any separate agreements are necessary for the sale, assignment and transfer of any Purchased Assets outside of the United States, such agreements shall be on terms wholly consistent with and as close as reasonably possible to the terms of this Agreement. Without limiting the foregoing, the parties shall arrange for such separate agreements providing for the sale, assignment and purchase of the Purchased Assets located in Belgium, France, Germany, the United Kingdom and the Netherlands to be prepared and entered into by the respective local Selling Subsidiaries and Buyer or its Affiliates prior to the Closing Date. Each party shall be responsible for its own legal costs in connection with this Section 2.2.
(d) All risk of loss with respect to the Purchased Assets (whether or not covered by insurance) shall be on Seller up to and including the Closing Date, whereupon such risk of loss shall pass to Buyer.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Mindray Medical International LTD), Asset Purchase Agreement (Datascope Corp)
Assets to be Sold. On the Closing Date, subject to Upon the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in Section 7 hereto have been satisfiedthis Agreement, at the Closing (as defined in SECTION 1.6 below), Seller shall sell, convey, assign, transfer, convey transfer and deliver to Buyer, and Buyer shall purchase and take acquire from Seller, in each case effective as free and clear of July 1any charge, 2011 claim, equitable interest, lien, option, pledge, security interest, mortgage, encroachment, or restriction of any kind (the “Effective Date”an "ENCUMBRANCE"), other than any Encumbrance identified on ANNEX B (a "PERMITTED ENCUMBRANCE"), all of Seller’s right's property and assets, title real, personal or mixed, tangible and interest in intangible, of every kind and description, wherever located, necessary to conduct Seller's crisis and emergency management consulting business (the following assets in clauses "BUSINESS"), as currently conducted as of the Closing, excluding the Excluded Assets, but including the following:
(a) through all leasehold interest in all real property leased by Seller (fthe "REAL PROPERTY") below described in SCHEDULE 1.1(A);
(collectivelyb) all equipment, furniture, office equipment, computer hardware, supplies, materials, vehicles, the “Sold Assets”RV, and other items of tangible personal property (other than inventory) of every kind owned or leased by Seller (the "TANGIBLE PERSONAL PROPERTY") described in SCHEDULE 1.1(B);
(c) all trade accounts receivable and all other accounts or notes receivable of Seller described in SCHEDULE 1.1(C), free as updated from time to time (the "ACCOUNTS RECEIVABLE");
(d) excluding the NDAs (as defined on SCHEDULE 1.4(A)(IV)), the Assumed Employment Agreements, the Equipment Leases, the Leases and clear the Independent Contractor Agreements, any oral or written contract or agreement described on SCHEDULE 1.1(D) (i) under which Seller has or may acquire any rights or benefits, (ii) under which Seller has or may become subject to any obligation or liability, (iii) by which Seller or any of the Assets is or may become bound (any such contract or agreement, a "SELLER CONTRACT");
(e) all liabilitiesGovernmental Authorizations (as defined in SECTION 2.11(B)) and all pending applications therefor or renewals thereof, debts, mortgages, liens, and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as the “Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”SCHEDULE 1.1(E), in each case, case to the extent transferable to Buyer;
(but only f) all data and records related to the extentoperations of Seller, and copies of all records referenced in SECTION 1.2(E) below;
(g) all of each Sale Container subject the intangible rights and property of Seller, including the Intellectual Property Assets (as defined in SECTION 2.15) described on SCHEDULE 1.1(G) and the Proprietary Assets (as defined in SECTION 2.15), going concern value, goodwill, telephone, telecopy and e-mail addresses, and listings including the name "James Lee Witt Associates, LLC" and abbreviations thereof, excxxx xx xxx xxxxx in SECTION 1.2 below;
(h) all insurance benefits, including rights and proceeds, arising from or relating to the terms of such Lease (it being acknowledged Assets after the date hereof and agreed that containers owned by various persons may be subject prior to the terms Closing Date, unless expended prior to the Closing Date in accordance with this Agreement;
(i) all claims of a LeaseSeller against third parties relating to the Asset set forth on SCHEDULE 1.1(I);
c. All (j) all rights of Seller’s rightSeller relating to employee advances, title deposits and interest prepaid expenses, claims for refunds and rights to offset in and to respect thereof which are not excluded under SECTION 1.2(F), set forth on SCHEDULE 1.1(J) (i) any purchase agreement pursuant to which Seller acquired any of the Sale Containers, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Date, including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued with respect to the Sale Containers on or after the Effective Date"DEPOSITS AND PREPAYMENTS"); and
e. All books(k) all rights under all subcontractor and independent consultant agreements set forth on SCHEDULE 1.1(K) (the "INDEPENDENT CONTRACTOR AGREEMENTS"). Notwithstanding the foregoing, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any the transfer of the Sale Containers that are maintained on behalf Assets pursuant to this Agreement will not include the assumption of Seller by CCC any liability or obligation in the ordinary course of business (the “Books and Records”respect thereof unless Buyer expressly assumes such liability or obligation pursuant to SECTION 1.4(A); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containers.
Appears in 1 contract
Samples: Asset Purchase Agreement (GlobalOptions Group, Inc.)
Assets to be Sold. On Subject to Section 2.2, the Closing Dateother provisions of this Agreement and the Approval Order, subject to at the terms and conditions set forth hereinClosing, Seller shallSellers shall sell, provided that all of the conditions set forth in Section 7 hereto have been satisfied, sellconvey, assign, transfer, convey transfer and deliver to Buyer, and Buyer shall purchase purchase, acquire, and take from Selleraccept, in each case effective as of July 1, 2011 (the “Effective Date”), all of Seller’s right, title and interest in and to the following assets used or held for use by Sellers in clauses (a) through (f) below the conduct of the Business (collectively, the “Sold Assets”)"ASSETS"):
(a) Sellers' rights in, free to and clear of under (i) the real estate leases or subleases and all liabilities, debts, mortgages, liens, and encumbrances except as amendments thereto used in the Business set forth in this SCHEDULE 2.1(a) under which any Seller is a lessor or lessee or sublessor or sublessee of real property relating to the operation of the Stores, and (ii) the Lease Agreement:
a. The Containers; such Containers being hereinafter referred to, collectivelydated December 11, 1996 (the "CANTON REAL PROPERTY LEASE"), by and between JBAK Canton, as landlord, and JBI, as tenant, demising the “Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date Owned Real Property (each, a “Lease” and collectively, the “Leases”"REAL PROPERTY LEASES");
(b) Sellers' rights in, to and under the equipment leases used in the Business including those set forth in SCHEDULE 2.1 (b) (collectively, the "EQUIPMENT LEASES");
(c) The furniture, fixtures, equipment, supplies and other tangible personal property owned by Sellers used in the Stores (collectively, the "EQUIPMENT"), and all warranties, if any, express or implied, existing for the benefit of any Seller in each caseconnection with the Equipment, to the extent such warranties are transferable at no expense to Sellers;
(d) All licenses, permits, franchises and other authorizations of any Governmental Entity relating to the Assets and to the operation of the Business including those listed on SCHEDULE 2.1(d) (collectively, the "PERMITS"), to the extent transferable or assignable and, in the case of non-material Permits, to the extent transferable or assignable at no expense to Sellers;
(e) All Contracts and rights thereunder of any Seller, including Inventory and non-Inventory purchase orders for the benefit of any Seller, listed on SCHEDULE 2.1(e), and that certain Transition Services Agreement, dated as of March 11, 2002, by and between WGS and Xxxxx Point, LLC attached hereto as EXHIBIT B (collectively, the "ASSUMED CONTRACTS"), to the extent transferable or assignable and, in the case of non-material Assumed Contracts, to the extent transferable or assignable at no expense to Sellers (other than Cure Amounts as provided herein);
(f) The merchandise inventory relating exclusively to the Business held for sale by Sellers (i) located in Sellers' Stores, (ii) located in Sellers' distribution center, (iii) in-transit on the Closing Date to Sellers' distribution center and (iv) in-transit on the Closing Date to Sellers' Stores from Sellers' distribution center or from Sellers' other Stores (collectively, the "Inventory"), and all warranties, if any, express or implied, existing for the benefit of Sellers in connection with the Inventory, to the extent such warranties are transferable;
(g) All cash in the cash registers at all Stores after the close of business on the day prior to the Closing Date (and in no event less than $400 per Store), subject to Section 6.1(b), and all loans owed to any Seller from any Continued Employee all of which are listed on SCHEDULE 2.1(g) (such loans, the "CONTINUED EMPLOYEE LOANS");
(h) All books, records, files or papers of Sellers, whether in hard copy or computer format, relating to the Assets or to the on-going operation of the Business consistent with past practices (or an accurate copy thereof), including, sales and promotional literature, manuals and data, sales and purchase correspondence, customer lists, vendor lists, mailing lists, catalogues, research material, URLs, know-how, specifications, designs, drawings, processes and quality control data, if any, or any other intangible property and applications for the same, in the case of non-material Assets to the extent transferable at no expense to Sellers;
(i) All of Sellers' right, title or interest to all Intellectual Property owned by Sellers and necessary to operation of the Business as presently conducted, including the Intellectual Property listed on SCHEDULE 2.1(i);
(j) All membership interests in Securex;
(k) All furniture, fixtures or equipment used for the Business by Sellers in their warehousing, distribution, headquarters or catalogue and e-commerce call and fulfillment facilities used in the Business;
(l) All assets and any rights under any Benefit Plan, including Sellers' pension plans and supplemental retirement plans, or any agreement relating to employee benefits, employment or compensation of Sellers or their respective employees, but only to the extentextent such Benefit Plans (including related agreements) are assumed by Buyer hereunder,
(m) All insurance policies, insurance claims and proceeds set forth in SCHEDULE 2.1(m); PROVIDED, HOWEVER, that Buyer shall cause each Seller to be named and maintained as an additional insured under such insurance policies until the close of each Sale Container the Cases, subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease)Section 6.15;
c. All of Seller’s right, title and interest in and to (i) Any security, vendor, utility or other deposits, including any purchase agreement pursuant to which Seller acquired any security deposits given in favor of the Sale Containerslessors of real property, (ii) warranties any rights to receive from such lessors unpaid construction allowances, (iii) any prepaid expenses in excess of actual expenses from whatever source, and (iv) any other cash due and owing any Seller in respect of such leases owed to Seller by such lessor prior to the Closing Date; PROVIDED, HOWEVER, that the foregoing shall not apply to any deposits or claims with respect to any real property, Real Property Leases or Contracts that are not acquired by Buyer hereunder;
(o) All rights with respect to the bank accounts (other than the cash in such bank accounts) of each Seller used by the manufacturers or original sellers of the Sale Containers, in each caseStores, to the extent transferable at no expense to Sellers;
(but only to the extentp) that such purchase agreement or warranty relates to a Sale ContainerAll marketing materials and works-in-progress, and all related prepaid expenses, for use in the Business after the Closing;
(iiiq) All contractual, prepaid or other rights of any security deposit(s) held by Seller under to maintenance and/or upgrades of the software for which any Seller has a Lease license as set forth on Schedule 2.1(i), to the extent transferable or assignable at no expense to Sellers;
(but only r) Specified assets of Work 'n Gear set forth on SCHEDULE 2.1(r);
(s) All assets, including prepaid expenses, contracts, leases and agreements, directly and indirectly materially related to the extent) that such security deposit relates to a Sale Containeroperations of the Business on an on-going basis as historically operated, and not otherwise explicitly enumerated in Section 2.2;
d. (t) All proceeds of the Sale Containers amounts due to the extent accrued on or after the Effective Date, including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued any Seller with respect to the Sale Containers Inventory on or after the Effective Datelay-away;
(u) The Owned Real Property; and
e. (v) All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of goodwill related to the Sale Containers that are maintained on behalf of Seller by CCC in the ordinary course of business (the “Books and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containersforegoing.
Appears in 1 contract
Assets to be Sold. On the Closing Date, subject to Upon the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in this Agreement, at the Closing (as defined in Section 7 hereto have been satisfied1.6 below), Seller shall sell, convey, assign, transfer, convey transfer and deliver to Buyer, and Buyer shall purchase and take acquire from Seller, in each case effective free and clear of any charge, claim, equitable interest, lien, option, pledge, security interest, mortgage, encroachment, or restriction of any kind (an "ENCUMBRANCE"), other than any Encumbrance identified on ANNEX A as of July 1, 2011 acceptable to Buyer (the “Effective Date”a "PERMITTED ENCUMBRANCE"), all of Seller’s right's property and assets, title real, personal or mixed, tangible and interest intangible, of every kind and description, wherever located, belonging to Seller and used in the conduct of the Seller's private investigations and to security consulting business (the "BUSINESS"), including the following assets in clauses (but excluding the Excluded Assets):
(a) through all leasehold interest in all real property leased or used by Seller (f) below (collectively, the “Sold Assets”"REAL PROPERTY"), free and clear of including the Real Property described in SCHEDULE 2.6;
(b) all liabilitiesequipment, debtsfurniture, mortgagesoffice equipment, lienscomputer hardware, supplies, materials, vehicles, and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as other items of tangible personal property (other than inventory) of every kind owned or leased by Seller (the “Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”"TANGIBLE PERSONAL PROPERTY"), including those items described in each case, to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a LeaseSCHEDULE 2.7(B);
c. All (c) all trade accounts receivable and all other accounts or notes receivable of Seller’s right, title and interest in and to Seller (the "ACCOUNTS RECEIVABLE");
(d) any oral or written contracts or agreement (i) any purchase agreement pursuant to under which Seller acquired has or may acquire any of the Sale Containersrights or benefits, (ii) warranties under which Seller has or may become subject to any obligation or liability, or (iii) by the manufacturers which Seller or original sellers any of the Sale ContainersAssets is or may become bound (any such contract or agreement, a "SELLER CONTRACT"), including those Seller Contracts listed on SCHEDULE 2.14;
(e) all Governmental Authorizations (as defined in SECTION 2.11(B)) and all pending applications therefor or renewals thereof, in each case, case to the extent transferable to Buyer;
(but only f) all data and records related to the extent) that such purchase agreement or warranty relates to a Sale Containeroperations of Seller, and copies of all records referenced in SECTION 1.2(E) below;
(iiig) all of the intangible rights and property of Seller, including the Intellectual Property Assets (as defined in SECTION 2.16) and the Proprietary Assets (as defined in SECTION 2.16), going concern value, goodwill, telephone, telecopy, and e-mail addresses, websites, domain names, and listings including the name "Hyperion Risk," abbreviations thereof, and Hyperion Risk, Inc., or any security deposit(sprevious name or names utilized by the Seller;
(h) held by Seller under a Lease all insurance benefits, including rights and proceeds, arising from or relating to the extent (but only Assets prior to the extent) that such security deposit relates to a Sale ContainerClosing Date;
d. All proceeds (i) all claims of the Sale Containers Seller against third parties relating to the extent accrued on or after the Effective DateAssets;
(j) all cash and cash equivalents and all securities and short term investments;
(k) all rights of Seller relating to deposits and prepaid expenses, including, without limitation, payments of rent, termination values, casualty values claims for refunds and insurance payments accrued with rights to offset in respect to the Sale Containers on or after the Effective Datethereof which are not excluded under SECTION 1.2(F); and
e. (l) all other properties and assets of every kind, character and description, tangible or intangible, of every kind and description, owned by Seller, whether or not similar to the items specifically set forth above. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers that property and assets to be transferred to Buyer hereunder are maintained on behalf of Seller by CCC in referred to collectively as the ordinary course of business ("Assets". Notwithstanding the “Books and Records”); providedforegoing, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws transfer of the Cayman Islands (“CAY”Assets pursuant to this Agreement will not include the assumption of any liability or obligation in respect thereof unless the Buyer expressly assumes such liability or obligation pursuant to SECTION 1.4(A), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containers.
Appears in 1 contract
Samples: Asset Purchase Agreement (GlobalOptions Group, Inc.)
Assets to be Sold. On the Closing Date, subject to Upon the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in this Agreement, at the Closing (as defined in Section 7 hereto have been satisfied1.6 below), Seller shall sell, convey, assign, transfer, convey transfer and deliver to Buyer, and Buyer shall purchase and take acquire from Seller, in each case effective free and clear of any charge, claim, equitable interest, lien, option, pledge, security interest, mortgage, encroachment, or restriction of any kind (an “Encumbrance”), other than any Encumbrance identified on Annex A as of July 1, 2011 reasonably acceptable to Buyer (the a “Effective DatePermitted Encumbrance”), all of Seller’s right, title and interest in and to the following assets in clauses related to the business of investigation and surveillance business (a) through (f) below the “Business”), (collectively, the “Sold Purchased Assets”), free ) (but excluding the Excluded Assets):
(a) all personal property and clear other tangible assets (other than inventory) of all liabilities, debts, mortgages, liens, and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as every kind owned or leased by the Seller’s (the “Sale ContainersTangible Personal Property”;
b. All right, title and interest of the Seller ) as identified in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”), in each case, to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a LeaseSchedule 2.7(a);
c. All of Seller’s right, title and interest in and to (b) any oral or written contracts or agreement (i) any purchase agreement pursuant to under which Seller acquired has or may acquire any of the Sale Containersrights or benefits, (ii) warranties under which Seller has or may become subject to any obligation or liability, or (iii) by the manufacturers which Seller or original sellers any of the Sale ContainersAssets is or may become bound (any such contract or agreement, a “Seller Contract”), that are listed on Schedule 2.14 and which are assignable (the “Assumed Contracts”);
(c) all Governmental Authorizations (as defined in Section 2.11(b)) and all pending applications therefore or renewals thereof, in each case, case to the extent transferable to Buyer;
(but only d) all data and records related to the extent) that such purchase agreement or warranty relates to a Sale Containeroperations of Seller, and copies of all records referenced in Section 1.2(e) below;
(iiie) all of the intangible rights and property of Seller, including the Intellectual Property Assets (as defined in Section 2.15) and the Proprietary Assets (as defined in Section 2.15), going concern value, goodwill, domain names, and any security deposit(sprevious name or names utilized by the Seller, including Omega Investigative Services but not Seller’s d/b/a name (First Advantage Investigative Services);
(f) held by intentionally deleted;
(g) all claims of the Seller under a Lease against third parties relating to the extent (but only to the extent) that such security deposit relates to a Sale ContainerAssets;
d. All proceeds (h) all rights of the Sale Containers Seller relating to the extent accrued on or after the Effective Datedeposits (excluding prepaid expenses) claims for refunds and rights to offset in respect thereof which are not excluded under Section 1.2(f);
(i) all accounts receivables, including, without limitation, payments of rent, termination values, casualty values work-in-progress and insurance payments accrued with respect to the Sale Containers on or after the Effective Dateemployee advances; and
e. All books(j) intentionally deleted. Notwithstanding the foregoing, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any the transfer of the Sale Containers that are maintained on behalf Assets pursuant to this Agreement will not include the assumption of Seller by CCC any liability or obligation in respect thereof unless the ordinary course of business (the “Books and Records”Buyer expressly assumes such liability or obligation pursuant to Section 1.4(a); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containers.
Appears in 1 contract
Samples: Asset Purchase Agreement (GlobalOptions Group, Inc.)
Assets to be Sold. On the Closing Date, subject to Upon the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in this Agreement, at the Closing (as defined in Section 7 hereto have been satisfied1.6 below), Seller shall sell, convey, assign, transfer, convey transfer and deliver to Buyer, and Buyer shall purchase and take acquire from Seller, in each case effective free and clear of any charge, claim, equitable interest, lien, option, pledge, security interest, mortgage, encroachment, or restriction of any kind (an "ENCUMBRANCE"), other than any Encumbrance identified on ANNEX A as of July 1, 2011 acceptable to Buyer (the “Effective Date”a "PERMITTED ENCUMBRANCE"), all of Seller’s right's property and assets, title real, personal or mixed, tangible and interest intangible, of every kind and description, wherever located, belonging to Seller and used in and to the conduct of the Seller's security consulting business (the "BUSINESS"), including the following assets in clauses (but excluding the Excluded Assets):
(a) through all leasehold interest in all real property leased by Seller (f) below (collectively, the “Sold Assets”"REAL PROPERTY"), free and clear of including the Real Property described in SCHEDULE 2.6;
(b) all liabilitiesequipment, debtsfurniture, mortgagesoffice equipment, lienscomputer hardware, supplies, materials, vehicles, and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as other items of tangible personal property (other than inventory) of every kind owned or leased by Seller (the “Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”"TANGIBLE PERSONAL PROPERTY"), including those items described in each case, to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a LeaseSCHEDULE 2.7(B);
c. All of Seller’s right, title and interest in and to (c) any oral or written contracts or agreement (i) any purchase agreement pursuant to under which Seller acquired has or may acquire any of the Sale Containersrights or benefits, (ii) warranties under which Seller has or may become subject to any obligation or liability, or (iii) by the manufacturers which Seller or original sellers any of the Sale ContainersAssets is or may become bound (any such contract or agreement, a "SELLER CONTRACT"), that are listed on SCHEDULE 2.14;
(d) all Governmental Authorizations (as defined in SECTION 2.11(b)) and all pending applications therefor or renewals thereof, in each case, case to the extent transferable to Buyer;
(but only e) all data and records related to the extent) that such purchase agreement or warranty relates to a Sale Containeroperations of Seller, and copies of all records referenced in SECTION 1.2(E) below;
(iiif) all of the intangible rights and property of Seller, including the Intellectual Property Assets (as defined in SECTION 2.16) and the Proprietary Assets (as defined in SECTION 2.16), going concern value, goodwill, telephone, telecopy, and e-mail addresses, websites, domain names, and listings including the name "On Line Consulting Services," abbreviations thereof, and On Line Consulting Services, Inc., or any security deposit(sprevious name or names utilized by the Seller, but not Seller's corporate name;
(g) held by Seller under a Lease all insurance benefits, including rights and proceeds, arising from or relating to the extent (but only Assets prior to the extent) that such security deposit relates to a Sale ContainerClosing Date;
d. All proceeds (h) all claims of the Sale Containers Seller against third parties relating to the extent accrued on or after the Effective DateAssets;
(i) all rights of Seller relating to deposits and prepaid expenses, including, without limitation, payments of rent, termination values, casualty values claims for refunds and insurance payments accrued with rights to offset in respect to the Sale Containers on or after the Effective Datethereof which are not excluded under SECTION 1.2(F); and
e. (j) all other properties and assets of every kind, including an amount of cash and/or accounts receivable equal to the trade accounts identified in Section 1.4(a)(ii), below less any price adjustment as defined in Section 1.3(c), below, character and description, tangible or intangible, of every kind and description, owned by Seller, whether or not similar to the items specifically set forth above. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers that property and assets to be transferred to Buyer hereunder are maintained on behalf of Seller by CCC in referred to collectively as the ordinary course of business ("ASSETS". Notwithstanding the “Books and Records”); providedforegoing, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws transfer of the Cayman Islands (“CAY”Assets pursuant to this Agreement will not include the assumption of any liability or obligation in respect thereof unless the Buyer expressly assumes such liability or obligation pursuant to SECTION 1.4(A), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containers.
Appears in 1 contract
Samples: Asset Purchase Agreement (GlobalOptions Group, Inc.)
Assets to be Sold. On (a) Upon the Closing Date, terms and subject to the terms and conditions set forth hereinof this Agreement, at the closing provided for in Section 2.03 (the "Brokerage Closing"), Seller shallshall sell, provided that all of the conditions set forth in Section 7 hereto have been satisfied, sellconvey, assign, transfer, convey transfer and deliver to Buyer (or to a Subsidiary of Buyer, as directed by Buyer), and Buyer (or such Subsidiary) shall purchase purchase, acquire and take assume from Seller, good and valid title in each case effective as of July 1, 2011 (the “Effective Date”), and to all of Seller’s 's right, title and interest in and to all of the following property and assets (other than the Excluded Assets) used primarily in clauses (a) through (f) below or necessary to conduct the Brokerage Business (collectively, the “Sold "Brokerage Assets”"), free and clear of any Liens other than Permitted Liens, including:
(i) all liabilitiesCompany's rights under the Eligible Customer Accounts as of the Brokerage Closing Date, debtsother than the Excluded Accounts (the "Transferred Accounts");
(ii) all Company's rights under the Customer Agreements related to the Transferred Accounts, mortgagesincluding, Company's rights as to all guarantees, warranties and indemnities related thereto;
(iii) all Company's rights under the margin loans extended to customers with respect to the Transferred Accounts (the "Margin Loans"), including any liens, pledges and encumbrances except similar rights in favor of Company or any Affiliate with respect thereto;
(iv) with respect to the Transferred Accounts:
(A) all material information relating to each Transferred Account (all such information, the "Transferred Account Information"); and
(B) to the extent legally permissible under applicable privacy laws, all rights granted by customers to use Transferred Account Information, including all customer instructions and consents with respect to solicitation;
(v) all Broker Loans;
(vi) all Company's rights with respect to the accrued and unpaid fees (the "Accrued Fees") with respect to the Transferred Accounts;
(vii) all equipment, furniture, fixtures, improvements and all other tangible personal property used primarily in or necessary to conduct the Brokerage Business as presently conducted by Company (but excluding equipment, furniture, fixtures, improvements and tangible personal property used primarily in the Capital Markets Business and/or the Excluded Functions and not necessary to conduct the Brokerage Business) as set forth on Schedule II ("Acquired Property");
(viii) Company's rights under all Assumed Contracts, subject to any agreements relating to the sharing of leased facilities pursuant to the Transition Services Agreement and the Sublease;
(ix) all franchises, licenses, permits, certificates, approvals and other authorizations from any Governmental Entity (collectively, "Permits"), received by or issued to Company to own, or lease and operate the Brokerage Business and to conduct the Brokerage Business as it has been conducted by Company;
(x) Trademarks and Intellectual Property, together with all additions, modifications, updates and enhancements, subject to the terms and conditions of the Transition Services Agreement;
(xi) the Books and Records subject to Section 3.07;
(xii) as set forth in Section 3.4(f) of this Agreement:, the assets of the Transferred Plans that represent liabilities attributable to the Transferred Employees;
a. The Containers(xiii) such prepaid fees and expenses as Buyer and Seller shall mutually agree as necessary and appropriate for the operation by Buyer of the Brokerage Business as currently conducted by Company; such Containers being hereinafter referred to, collectivelyand
(xiv) all marketable securities held by Company as principal in respect of the Brokerage Business ("Marketable Securities"), as the “Sale Containers”;listed on Schedule II to be provided by Seller.
b. All right(b) Such sale, title conveyance, assignment, transfer and interest delivery shall be effected by delivery by Seller to Buyer or its designees of the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”), in each case, to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease);
c. All of Seller’s right, title and interest in and to (i) any purchase agreement pursuant a duly executed bill of sale in a form to which Seller acquired any be mutually agreed (the "Bill of the Sale ContainersSale"); anx (xi) a duly executed assignment of Trademarks and Xxxellectual Property, (ii) warranties by the manufacturers or original sellers of the Sale Containersincluding patents, trademarks, trade names, copyrights and licenses and applications therefor, in each caserecordable form and otherwise in a form to be mutually agreed (the "Intellectual Property Assignment" and, together with the Bill of Sale the "Instruments of Assignment") as shall be necessary tx xxst in Buyer good and valid title to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale ContainerBrokerage Assets, free and (iii) clear of any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Dateand all liabilities, including, without limitation, payments of rent, termination values, casualty values obligations and insurance payments accrued with respect to the Sale Containers on or after the Effective Date; and
e. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers that are maintained on behalf of Seller by CCC in the ordinary course of business (the “Books and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAYLiens, except as otherwise directed by Buyer as owner of the Sale ContainersAssumed Liabilities and Permitted Liens.
Appears in 1 contract
Samples: Asset Purchase Agreement (Fahnestock Viner Holdings Inc)
Assets to be Sold. On the Closing Date, subject to (a) Upon the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in Section 7 hereto have been satisfiedthis Agreement, Sellers hereby sell, convey, assign, transfertransfer and deliver the Assets and assign the Assumed Liabilities to Buyers, convey and Buyers hereby purchase and acquire from Sellers, the Assets and assume the Assumed Liabilities, for the Purchase Price.
(b) Sellers hereby sell, convey, assign, transfer and deliver to Buyer, Buyers and Buyer shall Buyers hereby purchase and take acquire from SellerSellers, in each case effective as free and clear of July 1, 2011 (the “Effective Date”)any Encumbrances other than Permitted Encumbrances, all of Seller’s Sellers’ right, title and interest in and to substantially all of Sellers’ property and assets, whether real, personal or mixed, tangible and intangible, of every kind and description, wherever located other than the following assets in clauses (a) through (f) below Excluded Assets (collectively, the “Sold Assets”), which include the following:
(i) all Real Property Leases set forth in Section 3.8 of the Disclosure Schedule;
(ii) all Tangible Personal Property;
(iii) all Inventories;
(iv) all Accounts Receivable;
(v) all Assumed Contracts, including those listed in Section 3.20(a) of the Disclosure Schedule;
(vi) all Governmental Authorizations and all pending applications therefor or renewals thereof, in each case to the extent transferable to a Buyer under applicable Legal Requirement, including those listed in Section 3.17(b) of the Disclosure Schedule, except for Governmental Authorizations solely relating to ownership of the Excluded Assets or relating to any Seller’s existence or good standing; EXECUTION VERSION
(vii) all data and Records related to the operations of Sellers, including, those relating to client and customer lists, referral sources, research and development reports, production reports, service and warranty, equipment logs, operating guides and manuals, financial and accounting, creative materials, advertising materials, promotional materials, studies, reports, correspondence and other similar documents and, subject to Legal Requirements, copies of all personnel Records and other Records described in Section 2.2(g);
(viii) all of the intangible rights and property of Sellers, including all Intellectual Property Assets, going concern value, goodwill, telephone, telecopy and e-mail addresses and listings and those items listed in Section 3.25(b) of the Disclosure Schedule and Section 3.25(c) of the Disclosure Schedule;
(ix) to the extent assignable, all insurance proceeds, arising from or relating to the Assets or the Assumed Liabilities prior to the Closing;
(x) all claims of Seller against third parties relating to the Assets, whether xxxxxx or inchoate, known or unknown, contingent or noncontingent, including all such claims listed in Schedule 2.1(b)(x);
(xi) all rights of Seller relating to deposits and prepaid expenses, claims for refunds and rights to offset in respect thereof that are not excluded by Section 2.2(d) or Section 2.2(h); and
(xii) all rights of Sellers relating to the Savings Plan.
(c) Shareholders hereby convey, assign, transfer and deliver to Buyers and Buyers hereby accept and acquire from Shareholders for no consideration the vehicles set forth on Schedule 2.1(c) free and clear of any Encumbrances, “as is”, “where is” and “with all liabilitiesfaults”.
(d) The Assets are hereby be transferred from Sellers to Buyers as follows: the Assets of K Defense are hereby purchased by and transferred to API Defense, debtsexcept for the Assets associated with the activities of K Defense that require special classification and/or security clearance from the Defense Security Service, mortgages, lienswhich Assets are hereby purchased by and transferred to API USA, and encumbrances except as set forth in this Agreement:
a. the Assets of KII and K Industries are hereby purchased by and transferred to Systems. The Containers; such Containers being hereinafter referred to, collectively, as the “Sale Containers”;
b. All right, title and interest details of the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” purchase and collectively, the “Leases”), in each case, transfer of Assets to the extent Buyer are reflected in the Bills of Sale.
(but only to e) The transfer of the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease);
c. All of Seller’s right, title and interest in and to (i) any purchase agreement Assets pursuant to which Seller acquired this Agreement does not include the assumption of any of the Sale ContainersLiability, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, unless Buyers expressly assume that Liability pursuant to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Date, including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued with respect to the Sale Containers on or after the Effective Date; and
e. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers that are maintained on behalf of Seller by CCC in the ordinary course of business (the “Books and Records”Section 2.6(a); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containers.
Appears in 1 contract
Samples: Asset Purchase Agreement
Assets to be Sold. On the Closing Date, subject to Upon the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in this Agreement, as approved by the Bankruptcy Court, and the Sale Order, effective as of the Effective Time, or the effective date of subsequently executed and delivered Designation Assignment and Assumption Agreements pursuant to Section 7 hereto have been satisfied2.12(b), as applicable, to the fullest extent permitted by Sections 105, 363 and 365 of the Bankruptcy Code, Sellers shall sell, convey, assign, transfer, convey transfer and deliver to Buyer, both directly and Buyer as Agent's assignee of rights (or Buyer's designated subsidiaries or affiliates), and Buyer, both directly and as Agent's assignee of rights, shall purchase and take acquire from SellerSellers, in each case effective as free and clear of July 1, 2011 (the “Effective Date”)any Encumbrances other than Permitted Encumbrances, all of Seller’s Sellers' right, title and interest in and to all of Sellers' property and assets, real, personal or mixed, tangible and intangible, of every kind and description, relating to or used by Sellers in connection with Sellers' interior and underhood business, including such business and any other business conducted at the Facilities set forth on Schedule 2.1(a) hereto (the "Acquired Business"), including, but not limited to the following assets in clauses (but excluding the Excluded Assets and as adjusted after the date of this Agreement for items that are Buyer-Excluded Assets and Liabilities and that are not designated pursuant to Section 2.12, as the case may be):
(a) through all Real Property, including the Real Property described in Schedules 3.5 and 3.6, underlying the Facilities listed on Schedule 2.1(a);
(b) all Tangible Personal Property, including those items described in Schedule 2.1(b);
(c) all Inventories;
(d) all Contracts and all outstanding offers or solicitations made by or to Sellers to enter into any such Contract listed in Schedule 2.1(d) hereto;
(e) all Contracts designated by Buyer as Assumed Contracts following Closing in accordance with Section 2.12(b) hereto;
(f) below (collectively, all Governmental Authorizations relating to the “Sold Assets”), free Acquired Business and clear of all liabilities, debts, mortgages, liens, and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as the “Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”)pending applications therefore or renewals thereof, in each case, case to the extent (but only transferable to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a LeaseBuyer, including those listed in Schedule 3.13(b);
c. All (g) all data and Records related to the ownership or operation of Seller’s rightthe Sellers' business, title including client and interest customer lists and records, referral sources, research and development reports and records, production reports and records, service and warranty records, equipment logs, operating guides and manuals, financial and accounting records, creative materials, advertising materials, promotional materials, studies, reports, correspondence and other similar documents and records, and, subject to Legal Requirements, copies of all personnel Records and other Records described in Section 2.2(g);
(h) all of the intangible rights and property of Sellers related to the Acquired Business, including Intellectual Property Assets, going concern value, goodwill, telephone, telecopy, and e-mail addresses and those items listed in Schedule 3.20(c);
(i) to the extent assignable, all insurance benefits net of any purchase agreement pursuant deductible, including rights and proceeds, arising from or relating to which Seller acquired the Assets or the Assumed Liabilities prior to the Effective Time, unless expended by Sellers in accordance with this Agreement;
(j) all claims of Sellers against Third Parties related to the Assets, whether xxxxxx or inchoate, known or unknown, contingent or noncontingent, except for the Excluded Assets;
(k) all rights of Sellers related to deposits and prepaid expenses, claims for refunds and rights to offset in respect thereof primarily related to the Assets;
(l) Sellers' 51% equity interest, including all rights and privileges related or incident thereto, in TrimQuest, LLC, a Michigan limited liability company, including all rights and preferences in connection therewith (the "TrimQuest Membership Interest"); and
(m) subject to Section 2.12, any of the Sale Containersforegoing assets that require the consent of a third party to be transferred, (ii) warranties by assumed or assigned notwithstanding the manufacturers or original sellers provisions of Section 365 of the Sale ContainersBankruptcy Code, in each caseas to which such consent has not been obtained as of the Effective Time, to the extent (but only to the extent) that upon receipt of such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued consent on or after the Effective DateTime or entry of an appropriate Assumption Order as provided in Section 2.12 herein. All of the property and assets to be transferred to Buyer hereunder are herein referred to collectively as the "Assets." Notwithstanding the foregoing, including, without limitation, payments the transfer of rent, termination values, casualty values and insurance payments accrued with respect the Assets pursuant to this Agreement shall not include the assumption of any Liability related to the Sale Containers on or after the Effective Date; and
e. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers Assets unless Buyer expressly assumes that are maintained on behalf of Seller by CCC in the ordinary course of business (the “Books and Records”Liability pursuant to Section 2.4(a); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containers.
Appears in 1 contract
Samples: Asset Purchase Agreement
Assets to be Sold. (a) On the Closing Date, Date and subject to the terms and conditions set forth hereinof this Agreement, Seller shall, provided that all of the conditions set forth in Section 7 hereto have been satisfied, shall sell, assign, transfer, convey transfer and deliver to Buyerdeliver, and will cause its Affiliates to sell, assign, transfer and deliver, to Buyer shall purchase and take from Seller, in each case effective as of July 1, 2011 (the “Effective Date”), all of Seller’s right, title and interest in and to the following assets Purchased Assets. Buyer may designate one or more of its Affiliates to purchase the Purchased Assets. For purposes of clarity, it is acknowledged and agreed that Seller shall assign the Assumed Agreements to Buyer or one or more of its Affiliates pursuant to this Section 2.3(a) but Seller shall not be required to physically deliver the Assumed Agreements to Buyer on the Closing Date.
(b) The transfers contemplated in clauses (aSection 2.3(a) through (f) below (collectivelywill be effected on the Closing Date by Seller and its Affiliates transferring to Buyer or an Affiliate of Buyer pursuant to such good and sufficient instruments of conveyance, transfer and assignment, including, without limitation, a general assignment of the “Sold worldwide rights to the Transferred Intellectual Assets”), as shall be necessary to transfer to Buyer good and valid title to the Purchased Assets, free and clear of all liabilitiesliens except Permitted Encumbrances and Permitted Liens.
(c) On the Closing Date and subject to the terms and conditions of this Agreement, debtsBuyer or an Affiliate of Buyer shall assume the Assumed Liabilities and shall agree to pay and discharge the Assumed Liabilities as and when the Assumed Liabilities become due in accordance with the terms and conditions of this Agreement.
(d) Subject to the terms and conditions of this Agreement, mortgages, liensSeller will cause Ethicon S.p.A. to, and encumbrances except as Buyer will, or will cause one or more of its Affiliates to, enter into the Latina Business Transfer Deed, providing for (i) the sale, transfer, assignment or other direct or indirect conveyance of the Purchased Assets to be transferred by Ethicon S.p.A. to Buyer or one or more of its Affiliates, and (ii) the assumption of the Assumed Liabilities of Ethicon S.p.A. by Buyer or one or more of its Affiliates. The representations, warranties, covenants and agreements of the parties and the remedies for any breach thereof set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred toAgreement are in lieu of separate representations, collectivelywarranties, as covenants and agreements and remedies for any breach thereof in the “Sale Containers”;
b. All rightForeign Purchase Agreements. Notwithstanding anything to the contrary contained in the Foreign Purchase Agreements or any other related agreement, title and interest instrument or document evidencing the transfer of the Seller in any lease to which any Sale Container is subject on Purchased Assets outside of the Effective Date (each, a “Lease” and collectively, the “Leases”), in each caseUnited States, to the extent (but only to the extent) of each Sale Container subject to that there is a conflict between the terms of any Foreign Purchase Agreement or any such Lease (it being acknowledged other agreement, instrument or document, on the one hand, and agreed that containers owned by various persons may be subject to the terms of a Lease);this Agreement, on the other hand, the terms of this Agreement shall control and prevail among the parties hereto.
c. (e) All risk of Seller’s right, title and interest in and to (i) any purchase agreement pursuant to which Seller acquired any of the Sale Containers, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Date, including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued loss with respect to the Sale Containers Purchased Assets (whether or not covered by insurance) shall be on or after Seller up to the Effective Date; and
e. All bookstime of Closing, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any whereupon such risk of the Sale Containers that are maintained on behalf of Seller by CCC in the ordinary course of business (the “Books and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for loss shall pass to Buyer, then and subject solely to Buyer's indemnification rights set forth in such event the Books and Records shall be maintained by and in the possession Article X of CAY, except as otherwise directed by Buyer as owner of the Sale Containersthis Agreement.
Appears in 1 contract
Assets to be Sold. On Except as otherwise provided in Section 1.2 below, at the Closing Date, subject to (as hereinafter defined) the terms and conditions set forth herein, Seller shall, provided that all of the conditions set forth in Section 7 hereto have been satisfied, shall sell, assign, transferconvey, convey transfer and deliver to the Buyer, and the Buyer shall purchase and take from the Seller, in each case effective as of July 1, 2011 (the “Effective Date”), all of Seller’s right, title and interest in and to the following assets in clauses (a) through (f) below (collectively, the “Sold Assets”), free and clear of all liabilities, debts, mortgages, liens, and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as the “Sale Containers”;
b. All right, title and interest of the Seller in any lease and to which any Sale Container is subject the assets, properties, rights and business of the Seller of every type and description, real, personal and mixed, tangible and intangible, wherever located and whether or not reflected on the Effective Date books and records of the Seller relating to or used in connection the Business (each, a “Lease” and collectively, the “Leases”"Purchased Assets"), in each caseincluding, without limitation:
(i) all accounts receivable, whether collected or uncollected on the date hereof, attributable to sales made by Seller and its agents relating to the extent (but only period commencing on the date which is 60 business days prior to the extentClosing Date (as hereinafter defined), including without limitation, those which are listed on Schedule 1.1
(i) of each Sale Container subject to attached hereto (the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease"Accounts Receivable");
c. All of Seller’s right, title and interest in and to (i) any purchase agreement pursuant to which Seller acquired any of the Sale Containers, (ii) warranties all cash and marketable securities held or owned by Seller on the manufacturers date hereof in any bank or original sellers of the Sale Containerssecurities account, in each case, to the extent (but only to the extentas set forth on Schedule 1.1(ii) that such purchase agreement or warranty relates to a Sale Container, and attached hereto;
(iii) any security deposit(s) held by Seller under a Lease to the extent (but only to goodwill of the extent) that such security deposit relates to a Sale ContainerSeller;
d. All proceeds (iv) all of the Sale Containers to Seller's inventories on the extent accrued on or after the Effective Closing Date, including, without limitation, payments all inventories of rentraw materials, termination values, casualty values work-in-progress and insurance payments accrued with respect to active shipments and ordered goods whether located on the Sale Containers on or after the Effective Date; and
e. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any premises of the Sale Containers that are maintained on behalf of Seller by CCC Seller, in transit to or from such premises, in warehouses, in the ordinary course premises of business (the “Books and Records”); providedmanufacturers, howeveror otherwise, thatincluding, as long as CCC’s affiliatewithout limitation, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containers.those indicated on Schedule 1.1
Appears in 1 contract
Samples: Asset Purchase Agreement (Liberty Holdings Group Inc)
Assets to be Sold. On the Closing Date, subject to the terms and conditions set forth herein, Seller shall, provided that A complete list of all of the conditions set forth in Section 7 hereto have been satisfiedassets which are subject to this sale, sellare attached to this Agreement as Exhibit “A”. Seller warrants that it has, assignor will at the closing of this transaction, transfer, convey good and deliver to Buyer, and Buyer shall purchase and take from Seller, in each case effective as of July 1, 2011 (the “Effective Date”), all of Seller’s right, title and interest in and to the following assets in clauses (a) through (f) below (collectively, the “Sold Assets”)marketable title, free and clear of all liabilitiesliens and encumbrances, debtsexcept any liens or encumbrances disclosed herein, mortgages, liens, and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as the “Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”), in each case, to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease);
c. All of Seller’s right, title and interest in and to (i) any purchase agreement pursuant to which Seller acquired any of the Sale Containers, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Date, including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued with respect to the Sale Containers items to be listed on Exhibit “A”. Buyer shall receive a copy of the Exhibit “A” at the time of execution of this contract and, as of execution of this contract, acknowledge that all of the assets contained on Exhibit “A” are the assets of personal property and assets to be licensed by Seller pursuant to this agreement, which shall include a disclaimer of all warranties, expressed, implied or statutory. Buyer shall have ten (10) business days after receipt of Exhibit “A”, within which to cancel this Contract after which all parties shall be discharged from all further liability under the Effective Date; and
e. All booksterms of this contract. Assets shall also include license of all associated (i) trademarks, filesservice marks, papersbrand names, correspondencecertification marks, databasescollective marks, documentsd/b/a’s, records domain names, logos, symbols, trade dress, assumed names, fictitious names, trade names, and other documentation thereof regarding any indicia of origin, all applications and registrations for the Sale Containers that are maintained on behalf foregoing, and all goodwill associated therewith and symbolized thereby, including all renewals of Seller by CCC in the ordinary course of business same (the collectively, “Books Trademarks’”): (ii) inventions and Recordsdiscoveries, whether patentable or not, and all patents, registrations, invention disclosures and applications therefor, including divisions, continuations, continuations-in-part and renewal applications, and including renewals, extensions and reissues (collectively, “Patents”); provided(iii) trade secrets, howeverand know-how, thatincluding processes, as long as CCC’s affiliateschematics, Cronos Containers business methods, formulae, drawings, prototypes, models, designs, customer lists and supplier lists (Caymancollectively, “Trade Secrets’”): (iv) Ltd.published and unpublished works of authorship, a company organized whether copyright able or not (including without limitation databases and existing under the laws other compilations of the Cayman Islands information), including mask rights and computer software, copyrights therein and thereto, registrations and applications therefor, and all renewals, extensions, restorations and reversions thereof (collectively, “CAYCopyrights”); (v) any other intellectual property or proprietary rights; and (vi) all formulas, manages recipes, binders, processes, techniques, discoveries and applications relating to the Sale Containers for Buyerassets, then including, by way of example, all formulas, recipes, binders, processes, techniques, discoveries and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containersapplications related to Sellers product lines.
Appears in 1 contract
Samples: Exclusive License/Manufacturing Agreement (Megola Inc)
Assets to be Sold. On the Closing Date, subject to Upon the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in Section 7 hereto have been satisfiedthis Agreement, at the Closing, but effective as of the Effective Time, Seller shall sell, convey, assign, transfer, convey transfer and deliver to Buyer, and Buyer shall purchase and take acquire from Seller, in each case effective as free and clear of July 1, 2011 (the “Effective Date”)any Encumbrances other than Permitted Encumbrances, all of Seller’s right, title and interest in and to the following assets in clauses (a) through (f) below (collectively, the “Sold Assets”):
(a) the Lease;
(b) all items of property listed in Schedule 2.1(b), free along with purchase records, manuals, specifications, turn-over and clear commissioning packages, maintenance and calibration records, equipment history files, validation studies, certification reports and spare parts, relevant to the ownership and use of the fixed Assets listed therein, to the extent such items exist on May 5, 2005, with the turnover of these records, documents and files to take place prior to June 1, 2005;
(c) all liabilitiesother items of property, debtsincluding Tangible Personal Property and any Inventory located at 9000 Xxxxxxx Xxxxxx Xxxxx, mortgagesXxxxxxxxx, liensXxxxxxxx, but excluding those items of property relating to Seller’s cell banking operations specifically listed in Schedule 2.1(c);
(d) all Service Contracts listed in Schedule 2.1(d);
(e) all of the intangible rights and encumbrances property of Seller in the Assets, subject to the right of Seller to retain copies of each of the SOPs as needed by Seller in the conduct of its business, pursuant to the terms of Section 2.3(c) hereof; and
(f) all claims of Seller against third parties relating to those Assets which are Tangible Personal Property, whether cxxxxx or inchoate, known or unknown, contingent or noncontingent, including all such claims listed in Schedule 2.1(f). The parties acknowledge that the Schedules of the various Assets may be modified prior to Closing by their mutual agreement. With respect to the assignment of Seller’s interest in the Lease under Section 2.1(a) hereof, except as otherwise expressly set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred toAgreement or any agreement entered into pursuant to the Contemplated Transactions, collectively, Buyer accepts the Premises under the Lease in its “As Is” and “Where Is” condition as the “Sale Containers”;
b. All right, title and interest of the Seller date hereof; and except as otherwise expressly set forth in this Agreement or any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”), in each case, agreement entered into pursuant to the extent Contemplated Transactions, Seller makes no warranty of any kind, express or implied, with respect to such Premises (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease);
c. All of Seller’s right, title and interest in and to (i) any purchase agreement pursuant to which Seller acquired any of the Sale Containers, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Date, including, without limitation, payments Seller make no warranty as to habitability, fitness or suitability of rentsuch Premises for a particular purpose; nor as to the compliance or non-compliance of such Premises with the provisions of the Americans with Disabilities Act of 1990, termination values, casualty values and insurance payments accrued with as amended; nor as to the absence of any toxic or otherwise hazardous substances). With respect to the Sale Containers on or after the Effective Date; and
e. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers that are maintained on behalf of Seller by CCC in the ordinary course of business (the “Books and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing Assets transferred under the laws remainder of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAYthis Section 2.1, except as otherwise directed by expressly set forth in this Agreement or any agreement entered into pursuant to the Contemplated Transactions, Buyer accepts such Assets in their “As Is” and “Where Is” condition as owner of the Sale Containersdate hereof; and except as otherwise expressly set forth in this Agreement or any agreement entered into pursuant to the Contemplated Transactions, Seller makes no warranty of any kind, express or implied, including without limitation warranties of merchantability or fitness for a particular purpose, with respect to such Assets. Notwithstanding the foregoing, the transfer of the Assets pursuant to this Agreement shall not include the assumption of any Liability related to the Assets unless Buyer expressly assumes that Liability pursuant to Section 2.4(a).
Appears in 1 contract
Assets to be Sold. On (a) Upon the terms and subject to the conditions of this Agreement, the Seller shall, on the Closing Date, subject to the terms and conditions set forth herein, Seller shall, provided that all of the conditions set forth in Section 7 hereto have been satisfied, sell, assign, transfer, convey and deliver to Buyerthe Purchaser, and Buyer shall the Purchaser shall, on the Closing Date, purchase and take from the Seller, in each case effective as free and clear of July 1, 2011 (the “Effective Date”)any Encumbrances except Permitted Encumbrances, all of the Seller’s 's right, title and interest in and to the following any and all assets in clauses (a) through (f) below (collectively, the “Sold Assets”), free and clear of all liabilities, debts, mortgages, liens, and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as the “Sale Containers”;
b. All right, title and interest or rights of the Seller that are solely or primarily used in, held for use in or necessary for the conduct of the Business as currently conducted, including the following assets, but excluding the Excluded Assets (the "Transferred Assets"):
(i) all rights of the Seller under those Customer Contracts listed on Section 2.01(a)(i) of the Disclosure Schedule and under any lease to which any Sale Container is subject on the Effective Date (eachother agreements, a “Lease” and collectivelycontracts, the “Leases”)leases, in each casepurchase orders, commitments or licenses that relate solely or primarily to the extent Business (but only subject to Section 5.06(c)) other than contracts, agreements, leases, commitments or licenses that (x) are material and were not entered into in the ordinary course of the Business, (y) relate solely to the extentExcluded Assets or (z) represent solely a performance obligation of each Sale Container subject to the terms of such Lease Seller (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease"Transferred Contracts");
c. All of Seller’s right, title and interest in and to (i) any purchase agreement pursuant to which Seller acquired any of the Sale Containers, (ii) warranties by all Inventories at the manufacturers or original sellers of the Sale Containers, in each case, to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and Closing Date;
(iii) any security deposit(sthe test equipment and test equipment fixtures listed on Section 2.01(a)(iii) of the Disclosure Schedule, including (A) all documentation and source codes held by the Seller under a Lease at Closing which relate solely or primarily to such assets and (B) the extent (but only to materials listed on Section 2.01(a)(iii)(B) of the extent) that such security deposit relates to a Sale ContainerDisclosure Schedule;
d. All proceeds of (iv) all the Sale Containers to the extent accrued on or after the Effective DateBusiness Intellectual Property, including, without limitation, the statistical process control software and source code and macros related thereto, excluding the Business Intellectual Property expressly included in the Excluded Assets (the "Transferred Business Intellectual Property");
(v) all deposits, deferred charges, advance payments of rent, termination values, casualty values and insurance payments accrued with respect prepaid expenses relating solely to the Sale Containers on or after the Effective Date; andTransferred Assets;
e. All books(vi) all books of account, filesgeneral and financial information, papersinvoices, correspondenceshipping records, databasessupplier lists, correspondence and other documents, records and other documentation thereof regarding files which relate solely to the Business;
(vii) all claims, warranties, causes of action, choses in action, rights of recovery and rights of set-off of any kind, to the extent pertaining to or arising out of the Sale Containers that are maintained on behalf of Seller by CCC in Business or the ordinary course of business (Transferred Assets, and enuring to the “Books and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws benefit of the Cayman Islands Seller;
(“CAY”)viii) all sales and promotional literature and other sales-related materials owned, manages previously used, currently used, associated with or employed by the Sale Containers Seller at the Closing Date for Buyer, then and use solely in such event connection with the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner conduct of the Sale ContainersBusiness;
(ix) all franchises, permits, licenses, agreements, waivers and authorizations issued or granted by any Governmental Authority held or used by the Seller solely in connection with, or required for, the performance of Transferred Contracts, to the extent transferable;
(x) those screens, test equipment, fixturing and computer software and programs (including documentation, data files and source code) listed in Section 2.01(a)(x) of the Disclosure Schedule;
(xi) all right, title and interest held by the Seller in any trademark, service xxxx, brand name, certification xxxx, trade name, corporate name or other indication of origin that (x) consists of, incorporates or is based on the terms "MPD Technologies" or "Microwave Power Devices" or Microwave Power Devices' logo, and any other similar term or symbol, or (y) relates solely to the conduct of the Business;
(xii) all packaging material that is related solely to the conduct of the Business; and
(xiii) all of the Seller's goodwill that is related solely to the Business.
Appears in 1 contract
Samples: Asset Purchase Agreement (Comtech Telecommunications Corp /De/)
Assets to be Sold. On (a) Upon the Closing Date, terms and subject to the terms conditions of this Agreement, at the Closing, the Seller shall sell, convey, assign, transfer and conditions set forth herein, Seller shall, provided that deliver to the Purchaser all of the conditions set forth in Section 7 hereto have been satisfiedproperties, sellContracts, assignApprovals, transferrights and assets (of every kind, convey nature, character and deliver to Buyerdescription, real, personal or mixed, tangible or intangible, accrued, contingent or otherwise, and Buyer shall purchase and take from wherever situated) of the Seller, in each case effective as of July 1other than the Excluded Assets. Such assets and property shall include, 2011 (the “Effective Date”)without limitation, all of Seller’s right, title and interest in and to the following assets in clauses (a) through (f) below (collectively, the “Sold Assets”), free and clear of all liabilities, debts, mortgages, liens, and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as the “Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date all land, offices, buildings (eachtogether with improvements, a “Lease” appurtenances, licenses and collectivelypermits), motor vehicles, equipment, furniture and fixtures, supplies, stationery, cash and cash equivalents, Owned Mortgage Loans, other loans, the “Leases”Servicing Rights, the Subservicing Rights, accrued interest, interests in real estate investment conduits, securities, hedging instruments (other than xxxxxx relating to the Servicing Rights), in each caseaccounts receivable (including written-off accounts), bank accounts (including escrow accounts), credits, deferred charges, security deposits, advance payments, prepaid expenses, deposits, Approvals of any Governmental Agency or other third party, claims (including insurance claims), suits and judgments against third parties (including warranty claims relating to goods, equipment or real property sold to the extent (but only Seller and claims arising from the infringement of any Intellectual Property Right), all of the outstanding capital stock of the Subsidiaries, the Seller's investment in MERSCORP, Inc., the right to receive mail, payments on loans and accounts receivable and other communications, Software and licenses and other rights to use Software, lists of customers and suppliers, other files and business records, advertising materials, customer application forms, Seller IPR, Third Party IPR, the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease);
c. All of Seller’s 's right, title and interest in Contracts and the goodwill associated with the foregoing, but shall not include the Excluded Assets. All the assets to be transferred pursuant to this Agreement are referred to collectively herein as the "Purchased Assets". The Purchased Assets shall include, without limitation, all assets in the categories described on Schedule 2.01(a) owned by the Seller immediately prior to the Closing. For purposes of this Agreement, except where the context requires otherwise, the properties, contracts, rights and assets of the Subsidiaries shall be considered Purchased Assets.
(b) Notwithstanding anything to the contrary in this Agreement, the Purchased Assets shall not include any of the following (the "Excluded Assets"):
(i) any purchase agreement pursuant deferred Tax assets and current Tax receivables relating to the Seller and the Subsidiaries; (ii) any claims, refunds, credits or overpayments with respect to any Taxes paid or incurred by the Seller and its Affiliates, or any related interest received from the relevant taxing authority for periods ending prior to the Closing Date, and the appropriately prorated portion thereof for periods commencing prior to the Closing Date and ending on or after the Closing Date; (iii) the rights of the Seller under this Agreement and the Related Documents; (iv) the minute books, stock transfer books, seal and general corporate accounting records of the Seller; (v) Contracts relating to any Employee Plans (other than those relating to post-Closing benefits provided to or for the benefit of persons who are employees of CPM on the Closing Date) and Contracts to make any payment to an employee, officer or director of the Seller or an Affiliate; (vi) Contracts between the Seller on the one hand and the Parent or its Affiliates (other than the Subsidiaries) on the other hand, and any claims or rights of the Seller thereunder, except as provided in the Transition Services Agreement; (vii) insurance policies (other than financial guarantee or similar policies insuring other Purchased Assets); (viii) any capital stock of, or other investments in, Financial Security Assurance Holdings Ltd. ("FSA"), US West Inc., Northwest Pacific Mortgage Company ("Northwest Pacific") or any other corporation of which the Seller acquired owns less than all of the outstanding capital stock (except for the Seller's investment in MERSCORP, Inc.), and the Seller's interest in Insurance Partners L.P.; (ix) any mortgage loans or servicing or subservicing rights not identified on the Mortgage Loan Schedule; (x) hedging instruments related to the Servicing Rights; (xi) prepaid expenses related to any of the foregoing; (xii) recorded goodwill; and (xiii) without duplication, all assets listed on Schedule 2.01(b).
(c) The sale, conveyance, assignment, transfer and delivery of the Purchased Assets shall be effected by delivery by the Seller to the Purchaser at the Closing or otherwise in accordance with the Transfer Instructions of (i) the Xxxx of Sale Containersand the Trademark Assignment, (ii) warranties good and sufficient warranty deeds in recordable or registrable form, with respect to all real property owned by the manufacturers or original sellers of Seller and included in the Sale ContainersPurchased Assets, in each case, to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds certificates representing all of the Sale Containers to outstanding stock of each of the extent accrued on Subsidiaries, duly endorsed in blank or after the Effective Dateaccompanied by stock powers duly endorsed in blank, including, without limitation, payments (iv) endorsements in blank (or otherwise as required by Applicable Requirements) of rent, termination values, casualty values Mortgage Notes and insurance payments accrued Assignments of Mortgage with respect to the Sale Containers on or after Seller's and the Effective Date; and
e. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any Subsidiaries' Mortgage Loans sufficient to transfer all of the Sale Containers that are maintained on behalf of Seller by CCC Seller's and the Subsidiaries' right, title and interest in the ordinary course Mortgage Loans and (v) such other instruments of business (conveyance and transfer as the “Books and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under Purchaser shall reasonably request in accordance with the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale ContainersTransfer Instructions or otherwise.
Appears in 1 contract
Samples: Asset Purchase Agreement (Fund American Enterprises Holdings Inc)
Assets to be Sold. On the Closing Date, subject to Upon the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in Section 7 hereto have been satisfiedthis Agreement, at the Closing, but effective as of the Effective Time, Seller shall sell, convey, assign, transfer, convey transfer and deliver to Buyer, and Buyer shall purchase and take acquire from Seller, in each case effective free and clear of any Encumbrances (except as of July 1, 2011 (to Appurtenances to the “Effective Date”)extent provided for elsewhere herein) other than Permitted Encumbrances, all of Seller’s 's right, title and interest in and to all of Seller's property and assets, real, personal or mixed, tangible and intangible, of every kind and description, wherever located, including the following assets in clauses (but excluding the Excluded Assets):
(a) through all Real Property and all Appurtenances;
(b) all Tangible Personal Property;
(c) all Inventories;
(d) all Accounts Receivable and Unbilled Customer Revenue;
(e) all Seller Contracts (other than those constituting Excluded Assets) and all outstanding offers or solicitations made by or to Seller to enter into any Seller Contract;
(f) below (collectively, the “Sold Assets”), free all Governmental Authorizations and clear of all liabilities, debts, mortgages, liens, and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as the “Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”)pending applications therefor or renewals thereof, in each case, case to the extent transferable to Buyer;
(but only g) all data and Records related to the extentoperations of Seller, including client and customer lists and Records, all personnel records (provided that Seller shall have reasonable access thereto) of each Sale Container referral sources, research and development reports and Records, production reports and Records, service and warranty Records, equipment logs, operating guides and manuals, financial and accounting Records, creative materials, advertising materials, promotional materials, studies, reports, correspondence and other similar documents and Records, subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease)Legal Requirements;
c. All (h) all of the intangible rights and property of Seller’s right, title including Intellectual Property assets, the trade name, "Florida Water Services", going concern value, goodwill, telephone, telecopy and interest in e-mail addresses and to listings;
(i) any purchase agreement pursuant to which all claims of Seller acquired any of the Sale Containers, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, against third parties relating to the extent (but only to the extent) that such purchase agreement Assets, whether xxxxxx or warranty relates to a Sale Containerinchoate, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on known or after the Effective Dateunknown, including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued with respect to the Sale Containers on contingent or after the Effective Datenon-contingent; and
e. (j) all rights of Seller relating to deposits and prepaid expenses, claims for refunds and rights to offset in respect thereof and that are not excluded under Section 2.2, and not including Seller letters of credit for which the Seller is an applicant. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers that property and assets to be transferred to Buyer hereunder are maintained on behalf of Seller by CCC in herein referred to collectively as the ordinary course of business (the “Books and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall "Assets" or "Assets to be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale ContainersSold".
Appears in 1 contract
Assets to be Sold. On the Closing Date, subject to Upon the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in Section 7 hereto have been satisfiedthis Agreement, effective as of the Effective Time, each Seller hereby agrees to sell, convey, assign, transfer, convey transfer and deliver to Buyer or to Buyer’s Affiliate pursuant to the terms of a Local Country Purchase Agreement, and Buyer shall hereby agrees, either on its behalf or on behalf of its Affiliate pursuant to a Local Country Purchase Agreement, to purchase and take acquire from each Seller, in each case effective as of July 1, 2011 (the “Effective Date”), all of Seller’s right, title and interest in and to the following assets in clauses (a) through (f) below (collectively, the “Sold Assets”), free and clear of any Encumbrances other than Permitted Encumbrances, all liabilitiesrights, debtstitle and interests in and to all property and assets (real, mortgagespersonal or mixed, lienstangible and intangible) of every kind and description, and encumbrances except wherever located, owned, held or used in the conduct of the Business by such Seller, but excluding the Excluded Assets (all such assets to be transferred to Buyer or Buyer’s Affiliate, as set forth in this Agreement:
a. The Containers; such Containers applicable, hereunder or pursuant to a Local Country Purchase Agreement being hereinafter herein referred to, collectively, to collectively as the “Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “LeasesAcquired Assets”), in each caseincluding, except to the extent constituting Excluded Assets, the following:
(a) all interests of each Seller in real property, including the Owned Real Property listed on Schedule 3.7 and the Leased Real Property listed on Schedule 3.8;
(b) all Tangible Personal Property, including those items described in Schedule 2.1(b), but only excluding the items described in Schedule 2.2(i); Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the extentomitted portions marked [***].
(c) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease)all Inventories;
c. All of Seller’s right(d) all Accounts Receivable;
(e) except as provided in Section 2.2(e), title all Seller Contracts, including those listed in Schedule 3.20(a), and interest all outstanding sale orders, bids, offers or solicitations made by or to such Seller to enter into any Contract;
(f) all issued and outstanding equity interests in GES Vietnam;
(g) all Governmental Authorizations and to (i) any purchase agreement pursuant to which Seller acquired any of the Sale Containers, (ii) warranties by the manufacturers all pending applications therefor or original sellers of the Sale Containersrenewals thereof, in each case, case to the extent transferable to Buyer (but only if any Governmental Authorization cannot be transferred, such Seller agrees to the extent) that cooperate with and reasonably assist Buyer in obtaining such purchase agreement or warranty relates to a Sale ContainerGovernmental Authorization), including all Permits and (iii) any security deposit(s) Environmental Permits, which are held by Seller under a Lease to Sellers and required for the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds conduct of the Sale Containers to Business as currently conducted or for the extent accrued on or after ownership and use of the Effective DateAcquired Assets, including, without limitation, payments of rent, termination values, casualty values those listed in Schedule 3.17(a);
(h) all data and insurance payments accrued with respect Records related to the Sale Containers on operations of such Seller, including client and customer lists and Records, referral sources, research and development reports and Records, production reports and Records, service and warranty Records, equipment logs, operating guides and manuals, financial and accounting Records, creative materials, advertising materials, promotional materials, studies, reports, correspondence and other similar documents and Records and, subject to Legal Requirements, copies of all personnel Records;
(i) all of the Intellectual Property owned or after licensed by Sellers, any and all accompanying intangible rights of Sellers, including (i) all Intellectual Property Rights and Licensed Rights (ii) going concern value and (iii) goodwill, and those items listed in Schedules 3.25(a) and 3.25(d).
(j) all insurance benefits, including rights and proceeds, arising from or relating to the Acquired Assets or the Assumed Liabilities prior to the Effective DateTime, unless expended in accordance with this Agreement;
(k) all goodwill relating to the Business and the Acquired Assets and all rights to enforce covenants of employees of the Business regarding noncompetition, nonsolicitation, proprietary rights, intellectual property and confidentiality agreements;
(l) all claims of such Seller against any other Person and relating to the Business or the Acquired Assets, whether xxxxxx or inchoate, known or unknown, contingent or non-contingent; and
e. All books(m) all rights of such Seller relating to deposits and prepaid expenses, filesclaims for refunds and rights to offset in respect thereof. Notwithstanding the foregoing, papers, correspondence, databases, documents, records and other documentation thereof regarding the transfer of the Acquired Assets pursuant to this Agreement shall not include the assumption of any Liability related to the Business or any of the Sale Containers Acquired Assets unless Buyer expressly assumes that are maintained on behalf of Seller by CCC in the ordinary course of business (the “Books and Records”Liability pursuant to Section 2.4(a); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containers.
Appears in 1 contract
Samples: Asset Purchase Agreement (Kimball Electronics, Inc.)
Assets to be Sold. On the Closing Date, subject to Upon the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in Section 7 hereto have been satisfiedthis Agreement, at and effective as of the Closing, Seller shall sell, convey, assign, transfer, convey transfer and deliver to Buyer, and Buyer shall purchase and take acquire from Seller, in each case effective as free and clear of July 1, 2011 any Liens (the “Effective Date”other than Permitted Liens), all of Seller’s (and any of Seller’s Affiliates) right, title and interest in and to the following assets in clauses (a) through (f) below (collectively, the “Sold Assets”), free and clear of in each case to the extent Seller is able to sell, assign or convey the following:
(a) all liabilities, debts, mortgages, liens, and encumbrances except as Tangible Personal Property set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as on Schedule 2.01(a) (the “Sale ContainersPurchased Tangible Personal Property”);
b. All right, title (b) all Intellectual Property set forth on Schedule 2.01(b) (the “Purchased Intellectual Property”) and interest all goodwill of the Seller in any lease Business appurtenant to which any Sale Container is subject such Intellectual Property;
(c) all Inventory listed on the Effective Date Schedule 2.01(c) (each, a “Lease” and collectively, the “LeasesPurchased Inventory”);
(d) the Contracts listed on Schedule 2.01(d) (the “Assigned Contracts”);
(e) all Permits set forth on Schedule 2.01(e) and all pending applications therefor or renewals thereof, in each case, to the extent transferable to Buyer;
(but only f) all Business Books and Records; provided that Seller shall be permitted to keep copies of such Business Books and Records to the extent) of each Sale Container subject extent relating to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject Retained Business or the Retained Liabilities, or otherwise to the terms of a Lease);extent reasonably necessary, and only for so long as required, for Seller’s financial reporting purposes
c. All (g) all of Seller’s rightclaims, title causes of action, choses in action, rights of recovery and interest in and to (i) rights of set-off of any purchase agreement pursuant to which Seller acquired any of the Sale Containerskind, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, against Third Parties relating to the extent (but only to Business or the extent) that such purchase agreement Assets, whether cxxxxx or warranty relates to a Sale Containerinchoate, known or unknown, or contingent or non-contingent and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Containerwhether or not liquidated;
d. All proceeds (h) all of Seller’s rights to enforce any covenants, warranties, representations or guarantees benefiting the Sale Containers to Business or the extent accrued on or after the Effective Date, Assets (including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued covenants or warranties made by suppliers or other persons in connection with respect the Assets or services furnished to Seller primarily relating to the Sale Containers on Business or after affecting the Effective DateAssets); and
e. All books(i) all deposits (including, fileswithout limitation, papers, correspondence, databases, documents, records vendor and other documentation thereof regarding any of the Sale Containers that are maintained on behalf of Seller by CCC in the ordinary course of business (the “Books and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”customer deposits), manages prepayments, refunds, and rights of offset, recovery or recoupment (including any such item relating to the Sale Containers payment of Taxes) for Buyer, then and in such event Events that occur after the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale ContainersClosing Date.
Appears in 1 contract
Assets to be Sold. On Subject to Section 2.2, the Closing Dateother provisions of this Agreement and the Approval Order, subject to the terms and conditions set forth hereinat Closing, Seller shallSellers shall sell, provided that all of the conditions set forth in Section 7 hereto have been satisfied, sellconvey, assign, transfer, convey transfer and deliver to Buyer, and Buyer shall purchase purchase, acquire, and take accept from Seller, in each case effective as of July 1, 2011 (the “Effective Date”), Sellers all of Seller’s Sellers' right, title and interest in and to all of the following assets in clauses (a) through (f) below (collectivelyof Sellers, including all assets comprising or relating to the “Sold Business, other than the Excluded Assets”), free and clear of all liabilitiesLiens and Liabilities, debtscollectively, mortgages, liens, the "ASSETS," including:
(a) The leases or subleases and encumbrances except all amendments thereto under which any Seller is a lessor or lessee or sublessor or sublessee of real property which are used in the operation of the Business as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as the “Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date SCHEDULE 2.1(a) (each, a “Lease” and collectively, the “Leases”"ASSUMED REAL PROPERTY LEASES");
(b) The equipment leases which relate to equipment used in the operation of the Business as set forth on SCHEDULE 2.1(b) (the "ASSUMED EQUIPMENT LEASES");
(c) The furniture, fixtures, equipment (including customer premises equipment), in each casemachinery, vehicles, computers and associated hardware, supplies, spare parts, equipment inventory and other tangible personal property owned by Sellers, including the Network Equipment Assets (collectively, the "EQUIPMENT"), and all warranties, representations and guarantees if any, express or implied, existing for the benefit of such Sellers from third parties relating to the Equipment, to the extent the same are transferable or assignable;
(but only d) All licenses, permits, franchises, certificates of occupancy, registrations and approvals and other authorizations of any Governmental Entity to the extentextent the same are transferable or assignable, which are used in the operation of the Business as set forth on SCHEDULE 2.1(d);
(e) The contracts and agreements of each Sale Container the Sellers pertaining to and necessary for the operation of the Business in the ordinary course as set forth on SCHEDULE 2.1(e) (collectively, the "ASSUMED CONTRACTS"), subject to the terms of such Lease (it being acknowledged limitation that the Buyer shall assume the Interconnection and agreed that containers owned by various persons may be subject Collocation Agreements set forth on SCHEDULE 2.1(e) only with respect to the terms of a Lease)Assumed Central Office Locations;
c. All (f) Accounts receivable of Seller’s right, title and interest in and the Sellers (including all accounts receivable payable to (i) any purchase agreement pursuant to which Seller acquired Sellers by Buyer or any of its Affiliates) existing on the Sale ContainersClosing Date;
(g) All books, (ii) warranties by records, files or papers of Sellers, whether in hard copy or computer format, relating to the manufacturers Assets or original sellers to the operation of the Sale Containers, in each case, to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective DateBusiness, including, without limitation, payments engineering information, sales and promotional literature, manuals and data, sales and purchase correspondence, personnel and employment records, customer lists, vendor lists, catalogs, research material, technical information, trade secrets, technology, know-how, specifications, designs, drawings, processes and quality control data, if any, or any other intangible property and applications for the same used in the operation of rentthe Business as set forth on SCHEDULE 2.1(g);
(h) All of Sellers' Intellectual Property and the rights to xxx for, termination valuesand remedies against, casualty values past, present and insurance payments accrued with respect future infringements thereof and the rights of priority and protection of interests therein under applicable laws used in the operation of the Business as set forth on SCHEDULE 2.1(h), to the Sale Containers extent the same is transferable or assignable;
(i) Intentionally omitted;
(j) All computer software programs, management information systems, URLs, source codes and databases used by the Sellers whether owned, licensed, leased, or internally developed (in each case, subject to applicable restrictions) used in the operation of the Business as set forth on SCHEDULE 2.1(j) (the "SOFTWARE");
(k) All telephone numbers and electronic mail addresses owned and used by the Sellers in the conduct of the Business as set forth on SCHEDULE 2.1(k);
(l) All rights, demands, claims and causes of action that Sellers may have against Buyer or after any of its Affiliates, including, but not limited to, causes of action based on Chapter 5 of the Effective DateBankruptcy Code;
(m) All credits, prepaid expenses, advance payments and other prepaid items related to the operation of the Business as set forth on SCHEDULE 2.1(m);
(n) cash and cash equivalents constituting the proceeds of the collateral securing the Post-Petition Financing; and
e. (o) All booksshares of Series D Preferred Stock of Megapath Networks, filesInc., papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers that are maintained on behalf of Seller owned by CCC in the ordinary course of business (the “Books and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale ContainersRhythms.
Appears in 1 contract
Samples: Asset Purchase Agreement (Rhythms Net Connections Inc)
Assets to be Sold. On the Closing Date, subject to Upon the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in Section 7 hereto have been satisfiedthis Agreement, at the First Closing and Second Closing, respectively, Seller and Guarantor, as indicated, shall sell, convey, assign, transfer, convey transfer and deliver to BuyerBuyer (or cause to be so assigned, conveyed, transferred and delivered), and Buyer shall purchase and take acquire from Seller, in each case effective as free and clear of July 1, 2011 (the “Effective Date”)any Encumbrances other than Permitted Encumbrances, all of Seller’s rightthe rights, title title, and interest in interests of Seller or any Seller Affiliate in, under and to all of the following assets First Closing Assets and Second Closing Assets identified in clauses Subsections (a) through (e) below, but not including any of the Excluded Assets (the First Closing Assets and the Second Closing Assets, collectively, the “Assets”):
(a) Seller’s Geothermal Leases, Permits and Right of Ways identified on Schedule 2 and Schedule 2.1(a);
(b) The Contracts, permits and agreements identified on Schedule 2.1(b), excluding however the Empire Agreements which on or before the Second Closing Date shall either be: (i) purchased as provided in Section 5.4, or (ii) terminated.
(c) All of the real, personal and mixed property located on or used in the operation of the Project (whether located on or off the Project Site), which is owned or leased by Seller or any Affiliate of Seller, in whole or in part, or in which the Seller or any Affiliate of Seller otherwise has an interest, including without limitation the items listed on Schedule 2.1(c);
(i) All accounts receivable and other rights to payment of the Seller under any of the Contracts or otherwise which arise on or after the First Closing Date with respect to the First Closing Assets and which arise on or after the Second Closing Date with respect to the Second Closing Assets, and the full benefit of all security for such accounts or rights to payment and any other rights of the Seller related to the foregoing; (ii) all of the Company’s other intangible rights and property, including going concern value, goodwill, directory, telecopy and e-mail names, numbers, addresses and listings and domain names, and all rights that the Company may have to institute or maintain any action to protect the same and recover damages for any misappropriation or misuse thereof; (iii) all insurance benefits, including rights and proceeds, arising from or relating to the First Closing Assets and the Assumed Liabilities assumed at the First Closing prior to the First Closing Date and arising from or relating to the Second Closing Assets and the Assumed Liabilities assumed at the Second Closing prior to the Second Closing Date; and (iv) all of the Company’s rights to recovery arising out of litigation or any other proceeding that is currently pending or commences prior to the First Closing Date with respect to rights or recovery relating to the First Closing Assets and that is currently pending or commences prior to the Second Closing Date with respect to any other rights or recovery;
(e) All of the original and duplicate files, records and data relating to the items described in subsections (a), (b), (c), and (d) above, including title records; contracts; correspondence; documents; microfiche lists; computer output; geological, geophysical and seismic records, plats, surveys, maps, cross-sections, data, and interpretive reports; engineering reports, production records, electric logs, operations and instruction manuals, specifications and drawings;
(f) below The Rights of Way listed on Schedule 2.1(a) relating to the delivery of water to the Project and the pipelines, equipment, and other personal property located on the Rights of Way; and
(g) Guarantor’s Granite Ranch Leases listed on Schedule 2.1(g). Notwithstanding the foregoing, the Assets shall not include any of the following rights or interests (collectively, the “Sold Excluded Assets”) , all of which shall be retained by the Seller: (i) all of Seller’s personnel records and records relating to the organization, ownership and internal affairs of the Seller (as opposed to the Seller’s operations), free and clear (ii) all of all liabilitiesthe Seller’s insurance policies, debts(iii) any cash balances or investments contained in any deposit account owned by the Seller, mortgages(iv) the Empire Agreements, liens, and encumbrances except which on or before the Second Closing Date shall either be: (1) purchased as set forth in this Agreement:
a. The ContainersSection 5.4; such Containers being hereinafter referred to, collectively, as the “Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date or (each, a “Lease” and collectively, the “Leases”), in each case, to the extent (but only to the extent2) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease);
c. All of Seller’s right, title and interest in and to (i) any purchase agreement pursuant to which Seller acquired any of the Sale Containers, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Containerterminated, and (iiiv) any security deposit(s) held by Seller under a Lease financial records in existence prior to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective First Closing Date, including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued with respect to the Sale Containers on or after the Effective Date; and
e. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers that are maintained on behalf of Seller by CCC in the ordinary course of business (the “Books and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containers.
Appears in 1 contract
Assets to be Sold. On the Closing Date, subject to Upon the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in Section 7 hereto have been satisfiedthis Agreement, at the Closing, the Seller shall sell, convey, assign, transfer, convey transfer and deliver to Buyer, and Buyer shall purchase and take acquire from the Seller, in each case effective as of July 1, 2011 (the “Effective Date”)subject to Section 2.2, all of such Seller’s right, title and interest as of the Closing Date in and to the following assets in clauses to:
(a) through the Shares; and
(fb) the assets set forth below (collectively, the “Sold Assets”), free and clear of all liabilities, debts, mortgages, liens, and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter collectively referred to, collectively, to herein as the “Sale ContainersPurchased Assets”):
(i) the Seller Contracts;
b. All right(ii) all Governmental Authorizations and all pending applications therefor or renewals thereof, title in each case to the extent issued to Seller and interest transferable to Buyer, that relate primarily to the Gift Business including any such Governmental Authorizations that were not effectively transferred pursuant to the US Assignment;
(iii) all data and records primarily related to the operations of the Gift Business in the possession of the Seller, including client and customer lists and records, referral sources, research and development reports and records, production reports and records, service and warranty records, equipment logs, operating guides and manuals, creative materials, advertising materials, promotional materials, studies, reports, correspondence and other similar documents and records and, subject to Legal Requirements, copies of all personnel records and other records that Seller is required to retain in its possession pursuant to applicable Legal Requirements;
(iv) all of the intangible rights and property of the Seller in any lease relating primarily to which any Sale Container is subject on the Effective Date Gift Business (each, a “Lease” other than the Website Interest and collectively, the “Leases”Retained IP), including the Seller Intellectual Property;
(v) all rights of the Seller relating to the Restricted Cash, and the security deposits and prepaid items relating primarily to the Gift Business that are set forth on Schedule 2.1(b)(v), and any claims for refunds and rights to offset in respect thereof;
(vi) all insurance benefits, including rights and proceeds, arising from or relating to the Purchased Assets or the Assumed Liabilities (defined in Section 2.4(a) below) on or prior to the Closing Date, unless expended in accordance with this Agreement;
(vii) all claims of the Seller against third parties relating to the Purchased Assets, whether xxxxxx, inchoate, known or unknown, contingent or noncontingent; and
(viii) any other assets of the Seller used primarily in the Gift Business not included in the definition of Excluded Assets in Section 2.2, other than the Shares. Buyer acknowledges that, notwithstanding anything herein to the contrary: (x) 65% of the Shares of each of: Amram’s Distributing Ltd., Tri Xxxx International (Hong Kong) Limited, Xxxx Xxxxxx (U.K.) Limited, Xxxx Xxxxxx (Ireland) Limited and Xxxx Australia, (y) 100% of the Shares of each of: RB Gift, Xxxx Xxxxxx and Company Properties, Inc., Russplus, Inc. and Xxxx Xxxxxx and Company Investments, Inc., and (z) substantially all of the assets of the Subs described in clause (y) above are subject to Encumbrances created by the LaSalle Loan Documents (and in each case, case will remain subject to such Encumbrances subsequent to the extent (but only to consummation of the extent) of each Sale Container subject Contemplated Transactions pursuant to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease);
c. All of Seller’s rightLaSalle Loan Documents, title and interest until all obligations thereunder are paid in and to (i) any purchase agreement pursuant to which Seller acquired any of the Sale Containers, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Date, including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued with respect to the Sale Containers on or after the Effective Date; and
e. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers that are maintained on behalf of Seller by CCC in the ordinary course of business (the “Books and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containersfull.
Appears in 1 contract
Assets to be Sold. On the Closing Date, subject to Upon the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in this Agreement, at the Closing (as defined in Section 7 hereto have been satisfied1.6 below), Seller shall sell, convey, assign, transfer, convey transfer and deliver to Buyer, and Buyer shall purchase and take acquire from Seller, in each case effective free and clear of any charge, claim, equitable interest, lien, option, pledge, security interest, mortgage, encroachment, or restriction of any kind (an “Encumbrance”), other than any Encumbrance identified on Annex A as of July 1, 2011 acceptable to Buyer (the a “Effective DatePermitted Encumbrance”), all of Seller’s rightproperty and assets, title real, personal or mixed, tangible and interest intangible, of every kind and description, wherever located, belonging to Seller and used in the conduct of the Seller’s private investigations and to security consulting business (the “Business”), including the following assets in clauses (but excluding the Excluded Assets):
(a) through all leasehold interest in all real property leased or used by Seller (f) below (collectively, the “Sold AssetsReal Property”), free and clear of including the Real Property described in Schedule 2.6;
(b) all liabilitiesequipment, debtsfurniture, mortgagesoffice equipment, lienscomputer hardware, supplies, materials, vehicles, and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as other items of tangible personal property (other than inventory) of every kind owned or leased by Seller (the “Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “LeasesTangible Personal Property”), including those items described in each case, to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a LeaseSchedule 2.7(b);
c. All (c) all trade accounts receivable and all other accounts or notes receivable of Seller’s right, title and interest in and to Seller (the “Accounts Receivable”);
(d) any oral or written contracts or agreement (i) any purchase agreement pursuant to under which Seller acquired has or may acquire any of the Sale Containersrights or benefits, (ii) warranties under which Seller has or may become subject to any obligation or liability, or (iii) by the manufacturers which Seller or original sellers any of the Sale ContainersAssets is or may become bound (any such contract or agreement, a “Seller Contract”), including those Seller Contracts listed on Schedule 2.14;
(e) all Governmental Authorizations (as defined in Section 2.11(b)) and all pending applications therefor or renewals thereof, in each case, case to the extent transferable to Buyer;
(but only f) all data and records related to the extent) that such purchase agreement or warranty relates to a Sale Containeroperations of Seller, and copies of all records referenced in Section 1.2(e) below;
(iiig) all of the intangible rights and property of Seller, including the Intellectual Property Assets (as defined in Section 2.16) and the Proprietary Assets (as defined in Section 2.16), going concern value, goodwill, telephone, telecopy, and e-mail addresses, websites, domain names, and listings including the name “SafirRosetti, LLC,” abbreviations thereof, and Safir Xxxxxxx LLC (it being understood among the parties that Buyer is not purchasing or have any security deposit(srights thereto of the individual names “Safir” and/or “Xxxxxxx”);
(h) held by Seller under a Lease all insurance benefits, including rights and proceeds, arising from or relating to the extent (but only Assets prior to the extent) that such security deposit relates to a Sale ContainerClosing Date;
d. All proceeds (i) all claims of the Sale Containers Seller against third parties relating to the extent accrued on or after the Effective DateAssets;
(j) all cash and cash equivalents and all securities and short term investments;
(k) all rights of Seller relating to deposits and prepaid expenses, including, without limitation, payments of rent, termination values, casualty values claims for refunds and insurance payments accrued with rights to offset in respect to the Sale Containers on or after the Effective Datethereof which are not excluded under Section 1.2(f); and
e. (l) all other properties and assets of every kind, character and description, tangible or intangible, of every kind and description, owned by Seller, whether or not similar to the items specifically set forth above. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers that property and assets to be transferred to Buyer hereunder are maintained on behalf of Seller by CCC in the ordinary course of business (referred to collectively as the “Books and RecordsAssets”); provided. Notwithstanding the foregoing, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws transfer of the Cayman Islands (“CAY”Assets pursuant to this Agreement will not include the assumption of any liability or obligation in respect thereof unless the Buyer expressly assumes such liability or obligation pursuant to Section 1.4(a), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containers.
Appears in 1 contract
Samples: Asset Purchase Agreement (GlobalOptions Group, Inc.)
Assets to be Sold. On Seller shall deliver to Buyer at the Closing Date, an Absolute Bill of Sale for all Assets. A complete list of all the assets which are subject to this sale, are attached to this Agreement as Exhibit “A”. Seller warrants that it has, or will at the terms closing of this transaction, good and conditions set forth herein, Seller shall, provided that all of the conditions set forth in Section 7 hereto have been satisfied, sell, assign, transfer, convey and deliver to Buyer, and Buyer shall purchase and take from Seller, in each case effective as of July 1, 2011 (the “Effective Date”), all of Seller’s right, title and interest in and to the following assets in clauses (a) through (f) below (collectively, the “Sold Assets”)marketable title, free and clear of all liabilitiesliens and encumbrances, debtsexcept any liens or encumbrances disclosed herein, mortgages, liens, and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as the “Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”), in each case, to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease);
c. All of Seller’s right, title and interest in and to (i) any purchase agreement pursuant to which Seller acquired any of the Sale Containers, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Date, including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued with respect to the Sale Containers items to be listed on Exhibit “A”. Buyer shall receive a copy of the Exhibit “A” at the time of execution of this contract and, as of execution of this contract, acknowledge that all of the assets contained on Exhibit “A” are the assets of personal property and assets to be transferred by Seller pursuant to this agreement, which shall include a disclaimer of all warranties, expressed, implied or statutory. Buyer shall have ten (10) business days after receipt of Exhibit “A”, within which to cancel this Contract after which all parties shall be discharged from all further liability under the Effective Date; and
e. All booksterms of this contact. Assets shall also include all (i) trademarks, filesservice marks, papersbrand names, correspondencecertification marks, databasescollective marks, documentsd/b/a’s, records domain names, logos, symbols, trade dress, assumed names, fictitious names, trade names, and other documentation thereof regarding any indicia of origin, all applications and registrations for the Sale Containers that are maintained on behalf foregoing, and all goodwill associated therewith and symbolized thereby, including all renewals of Seller by CCC in the ordinary course of business same (the collectively, “Books and RecordsTrademarks”); provided(ii) inventions and discoveries, howeverwhether patentable or not, thatand all patents, as long as CCC’s affiliateregistrations, Cronos Containers invention disclosures and applications therefor, including divisions, continuations, continuations-in-part and renewal applications, and including renewals, extensions and reissues (Cayman) Ltd.collectively, a company organized and existing under the laws of the Cayman Islands (“CAYPatents”); (iii) trade secrets, manages the Sale Containers for Buyerand know-how, then including processes, schematics, business methods, formulae, drawings, prototypes, models, designs, customer lists and in such event the Books supplier lists (collectively, “Trade Secrets”): (iv) published and Records shall be maintained unpublished works of authorship, whether copyright able or not (including without limitation databases and other compilations of information), including mask rights and computer software, copyrights therein and thereto, registrations and applications therefor, and all renewals, extensions, restorations and reversions thereof (collectively, “Copyrights”); (v) any other intellectual property or proprietary rights; and (vi) all formulas, recipes, binders, processes, techniques, discoveries and applications relating to fire inhibiting and fire extinguishing products, including, by way of example, all formulas, recipes, binders, processes, techniques, discoveries and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containersapplications related to Sellers product lines.
Appears in 1 contract
Samples: Exclusive License/Manufacturing Agreement (Megola Inc)
Assets to be Sold. On the Closing Date, subject to Upon the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in Section 7 hereto have been satisfiedthis Agreement, at the Closing, but effective as of the Effective Time, Seller shall sell, convey, assign, transfer, convey transfer and deliver to Buyer, and Buyer shall purchase and take acquire from Seller, in each case effective as free and clear of July 1, 2011 (the “Effective Date”)any Encumbrances other than Permitted Encumbrances, all of Seller’s 's right, title and interest in and to the following real, personal or mixed, tangible and intangible, of every kind and description, wherever located, or property and assets used in clauses or related to the Business including the following (but excluding the Excluded Assets):
(a) through the Real Property Leases listed in Part 2.1(a);
(b) all Tangible Personal Property located within the Stores;
(c) all Inventories;
(d) all Seller Contracts;
(e) all Governmental Authorizations and all pending applications therefor or renewals thereof, in each case to the extent transferable to Buyer, including those listed in Part 3.14(b);
(f) below (collectivelyall data and Records related to the Business, the “Sold Assets”)including customer lists and Records, free market studies, sales, reports, service and clear of all liabilitieswarranty Records, debtsfinancial and accounting Records, mortgagesadvertising materials, lienspromotional materials, and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred toother studies, collectivelyreports, as the “Sale Containers”correspondence and other similar documents and Records and, subject to Legal Requirements;
b. All right, title and interest (g) all of the intangible rights and property of Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”), in each case, related to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged Business, including Intellectual Property Assets, going concern value, goodwill, telephone, telecopy and agreed that containers owned by various persons may be subject to the terms of a Leasee-mail addresses and listings including those items listed in Part 3.19(c);
c. All (h) all claims of Seller’s rightSeller against third parties relating to the Assets, title and interest whether choate or inchoate, known or unknown, contingent or noncontingent, xxxxuding all such claims listed in and to Part 2.1(i); and
(i) any purchase agreement all rights of Seller relating to deposits and prepaid expenses, claims for refunds and rights to offset in respect thereof. All of the property and assets to be transferred to Buyer hereunder are herein referred to collectively as the "Assets." Buyer shall deliver to Seller all Seller Contracts within ten (10) days after the Closing Date. Notwithstanding the foregoing, the transfer of the Assets pursuant to which Seller acquired this Agreement shall not include the assumption of any of the Sale Containers, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, Liability related to the extent (but only Assets unless Buyer expressly assumes that Liability pursuant to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Date, including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued with respect to the Sale Containers on or after the Effective Date; and
e. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers that are maintained on behalf of Seller by CCC in the ordinary course of business (the “Books and Records”Section 2.4(a); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containers.
Appears in 1 contract
Assets to be Sold. On the Closing Date, subject to Upon the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in Section 7 hereto have been satisfiedthis Agreement, at the Closing and effective as of the Effective Time, each Seller shall sell, convey, assign, transfer, convey and deliver to Buyer, or one or more Affiliates of Buyer to which Buyer has assigned its rights hereunder in accordance with Section 13.8, and Buyer (or such assignee) shall purchase and take acquire from such Seller, in each case effective as free and clear of July 1, 2011 (the “Effective Date”)any Encumbrances other than Permitted Encumbrances, all of such Seller’s 's right, title title, and interest in and to all of such Seller's property and assets, real, personal, or mixed, tangible and intangible, of every kind and description, wherever located, belonging to such Seller and which relate to either Business as well as any goodwill associated therewith, including the following assets in clauses (but excluding the Excluded Assets):
(a) through all Tangible Personal Property, including those items described in Section 3.5(a) of the Seller Disclosure Schedules, together with all rights of Sellers against Third Parties relating to such Tangible Personal Property;
(b) all Inventories, together with all rights of Sellers against suppliers or manufacturers of such Inventories;
(c) all Accounts Receivable (other than any Accounts Receivable due from any Seller to another Seller or due from any Related Person of any Seller);
(d) (i) all Seller Contracts listed or required to be listed in Section 3.17(a) of the Seller Disclosure Schedules, (ii) to the extent, but only to the extent, of the Specified Nabors Rigs, the Nabors Contract, and (iii) all outstanding offers or solicitations made by or to any Seller to enter into any Contract related to either Business ("Bids");
(e) all unearned customer deposits;
(f) below all Governmental Authorizations related to either Business and all pending applications therefor or renewals thereof, including those listed or required to be listed in Section 3.14(b) of the Seller Disclosure Schedules, in each case to the extent permitted by applicable Legal Requirements and otherwise transferable to Buyer;
(collectivelyg) all data and Records related to either Business, the “Sold Assets”)including client and customer lists and Records, free referral sources, research and clear development reports and Records, production reports and Records, quality control data, service and warranty Records, equipment logs, operating guides and manuals, financial and accounting Records, creative materials, advertising materials, promotional materials, studies, reports, correspondence and other similar documents and Records and, subject to Legal Requirements, copies of all liabilitiespersonnel Records (the "Business Records");
(h) all of the intangible rights and property of Sellers used in either Business, debtsincluding all Intellectual Property and going concern value, mortgagesgoodwill and rights under Intellectual Property Licenses;
(i) all rights of Sellers relating to deposits and prepaid expenses, liensadvance payments, security, claims for refunds and rights to offset in respect thereof, in each case related to either Business, that are not listed in Section 2.2(d) of the Seller Disclosure Schedules and that are not excluded under Section 2.2(f);
(j) all rights of Sellers pertaining to any counterclaims, set-offs or defenses it may have with respect to the Assumed Liabilities; and
(k) all other assets, properties, and encumbrances except as set forth rights of every kind owned or held by Sellers or in which Sellers have an interest on the Closing Date, known or unknown, fixed or unfixed, accrued, absolute, contingent or otherwise, whether or not specifically referred to in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as the “Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”)that, in each case, relate to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease);
c. either Business. All of Seller’s right, title the property and interest in and assets to (i) any purchase agreement pursuant be transferred to which Seller acquired any of Buyer hereunder are herein referred to collectively as the Sale Containers, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Date, including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued with respect to the Sale Containers on or after the Effective Date; and
e. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers that are maintained on behalf of Seller by CCC in the ordinary course of business (the “Books and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containers"Assets."
Appears in 1 contract
Samples: Asset Purchase Agreement (Stewart & Stevenson Funding Corp.)
Assets to be Sold. On the Closing Date, subject Subject to the terms and conditions set forth hereinin this Agreement, Seller shall, provided that all of at the conditions set forth Closing (as defined in Section 7 hereto have been satisfied, 6.1 hereof) Seller shall sell, assign, transfer, convey convey, assign and deliver to BuyerPurchaser, and Buyer Purchaser shall purchase and take acquire from Seller, in each case effective as of July 1, 2011 (the “Effective Date”), all of Seller’s right, title and interest in and to Seller’s assets (wherever located, tangible and intangible, real, personal or mixed, whether known or unknown and whether or not carried on the following assets books and records of Seller) that are solely used in clauses the Training Business, and the Training Business (aand the goodwill associated therewith) through as a going concern (f) below (collectively, the “Sold Assets”), free and clear of all liabilitiesincluding, debts, mortgages, liens, and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred but not limited to, collectivelythe following, but excluding the Excluded Assets (as defined in Section 1.3 hereof) and excluding any liabilities associated with the “Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”), in each case, to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease);
c. All of Seller’s right, title and interest in and to (i) any purchase agreement pursuant to which Seller acquired any of the Sale Containers, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective DateAssets, including, without limitation, payments of rentany employment or severance contracts/arrangements, termination valuesbuy and sell agreements, casualty values real estate or equipment finance leases, mortgages, secured or unsecured indebtedness, all tax liabilities, ongoing utility and insurance payments maintenance expenses, vacation liabilities and any other amounts accrued with respect to the Sale Containers on or after benefit of Seller’s employees (hereinafter, the Effective Date; and“Liabilities”), for all of which Liabilities Seller shall remain solely and exclusively responsible:
e. All books(a) all of Seller's rights under all contracts, agreements, arrangements, commitments, instruments and understandings ("Contracts") to which Seller is a party which relate solely to the Training Business;
(b) all of Seller's records, files, papersbooks, correspondencedocuments as they pertain to the Training Business, databasesthe current ICM Education 800 number, documentsthe current ICM Education web site and, records to the extent legally possible, all related manufacturer/vendor certifications and authorizations and other documentation thereof regarding any data relating solely to the Training Business;
(c) all of Seller's confidential data as it relates solely to the Sale Containers Training Business;
(d) all municipal, state and federal franchises, permits, licenses and authorizations held or used by Seller as they relate solely to the Training Business;
(e) all of Seller's copyrights, trademarks, service marks, trade names, domain names and URLS related to the Training Business, it being understood and agreed that Seller shall, at Seller’s sole expense, execute all such documents and take all such actions as are maintained on behalf necessary or appropriate to effectuate the assignment to Purchaser of Seller by CCC all of Seller’s rights, title and interests (hereinafter, “Intellectual Property Rights”) in and to the ordinary course of business (the “Books and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containersaforementioned.
Appears in 1 contract
Assets to be Sold. On the Closing Date, subject Subject to the terms and conditions set forth hereinof ----------------- this Agreement, Seller shall, provided that all of the conditions set forth in Section 7 hereto have been satisfied, shall sell, assignconvey, transfer, convey transfer and deliver assign to Buyer, Buyer and Buyer shall purchase from Seller all the operating assets and take from Selleroperations of Tri- Star, but excluding the assets described in each case effective as of July 1, 2011 (the “Effective Date”), all of Seller’s right, title and interest in and to the following assets in clauses (a) through (f) below S)1.3 (collectively, the “Sold "Assets”") including the following:
(a) All of Seller's rights and interests in the personal property, leasehold improvements, fixed assets, machinery and equipment, furniture and fixtures, supplies, vehicles, and other similar property of Seller relating to the Business as of the Closing Date, including but not limited to those items set forth on Schedule 1.1
(a) (the "Personal Property"); ----------------
(b) The Leases set forth on Schedule 1.1 (b), including, inter alia, ---------------- the operating lease for Tri-Star at DFW (the "Leases");
(c) Subject to Section 11.2, Seller's full right and benefit under any contracts, agreements, franchises, licenses, permits, registrations or authorizations relating to the Business including, without limitation, all customer contracts, any additional rental contracts or leases other than the Leases, and those specifically set forth on Schedule 1.1 (c) (collectively, ---------------- including the Leases, the "Assumed Contracts");
(d) Subject to Section 11.2, the operating certificates, licenses and permits of Seller relating to the Business, including but not limited to those set forth on Schedule 1.1(d) (the "Operating Rights") to the extent that said -------------- operating certificates, licenses and permits shall be assignable;
(e) All goodwill of Seller associated with the Business;
(f) All intangible assets and intellectual property of Seller, including without limitation the rights to the name "Tri-Star" and any variation thereof, and all logos, copyrights, tradename, trademark, trade dress, service marks, and - all associated goodwill, together with all rights of Seller to use the foregoing, including but not limited to those set forth on Schedule 1.1 (f) --------------- (the "Proprietary Rights");
(g) All lists and records pertaining to any customers, suppliers, distributors, vendors, personnel, agents and all other books and records of Seller relating to the Business; provided, however, that Seller shall be allowed to keep copies of all such documents and records, as well as the originals of any state or federal tax returns;
(h) All of Seller's interest in telephone listings, fax listings, e-mail listings, domain names and any other such directories relating to the Business; and
(i) All other property of Seller not referred to above which is used in the conduct of the Business. The Assets shall be conveyed by Seller to Buyer free and clear of all liabilities, debtsobligations, mortgagesliens and encumbrances, liens, excepting only those liabilities and encumbrances except obligations constituting the Assumed Liabilities (as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as the “Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”defined), in each case, to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease);
c. All of Seller’s right, title and interest in and to (i) any purchase agreement pursuant to which Seller acquired any of the Sale Containers, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Date, including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued with respect to the Sale Containers on or after the Effective Date; and
e. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers that are maintained on behalf of Seller by CCC in the ordinary course of business (the “Books and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containers.
Appears in 1 contract
Assets to be Sold. On the Closing Date, subject Subject to the terms and conditions set forth hereinin this Agreement, Seller shall, provided that all of at the conditions set forth Closing (as defined in Section 7 hereto have been satisfied, 6.1 hereof) Seller shall sell, assign, transfer, convey convey, assign and deliver to BuyerPurchaser, and Buyer Purchaser shall purchase and take acquire from Seller, in each case effective as of July 1, 2011 (the “Effective Date”), all of Seller’s right, title and interest in and to Seller’s assets (wherever located, tangible and intangible, real, personal or mixed, whether known or unknown and whether or not carried on the following assets books and records of Seller) that are used in clauses the The Business, and The Business (aand the goodwill associated therewith) through as a going concern (f) below (collectively, the “Sold Assets”), free and clear of all liabilitiesincluding, debtsbut not limited to, mortgages, liensthe following, and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as excluding any liabilities associated with the “Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”), in each case, to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease);
c. All of Seller’s right, title and interest in and to (i) any purchase agreement pursuant to which Seller acquired any of the Sale Containers, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective DateAssets, including, without limitation, payments of rentany employment or severance contracts/arrangements, termination valuesbuy and sell agreements, casualty values real estate or equipment finance leases, mortgages, secured or unsecured indebtedness, all tax liabilities, ongoing utility and insurance payments maintenance expenses, vacation liabilities and any other amounts accrued with respect to the Sale Containers on or after benefit of Seller’s employees (hereinafter, the Effective Date; and“Liabilities”), for all of which Liabilities Seller shall remain solely and exclusively responsible:
e. All books(a) all of Seller's rights under all contracts, agreements, arrangements, commitments, instruments and understandings ("Contracts") to which Seller is a party which relate solely to the The Business;
(b) all of Seller's records, files, papersbooks, correspondencedocuments as they pertain to the The Business. To the extent legally possible, databases, documents, records all related manufacturer/vendor certifications and authorizations and other documentation thereof regarding any data relating solely to the The Business;
(c) all of Seller's confidential data as it relates solely to the Sale Containers The Business;
(d) all municipal, state and federal franchises, permits, licenses and authorizations held or used by Seller as they relate solely to the The Business;
(e) all of Seller's copyrights, trademarks, service marks, trade names, domain names and URLS related to the The Business, it being understood and agreed that Seller shall, at Seller’s sole expense, execute all such documents and take all such actions as are maintained on behalf necessary or appropriate to effectuate the assignment to Purchaser of Seller by CCC all of Seller’s rights, title and interests (hereinafter, “Intellectual Property Rights”) in and to the ordinary course aforementioned.
(f) the Sellers established distribution channel which amasses in excess of business (300,000 retail locations throughout the “Books and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale ContainersUnited States.
Appears in 1 contract
Assets to be Sold. On the Closing Date, subject to Upon the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in Section 7 hereto have been satisfiedthis Agreement, at the Closing, but effective as of the Effective Time, Seller shall sell, convey, assign, transfer, convey transfer and deliver to Buyer, and Buyer shall purchase and take acquire from Seller, in each case effective free and clear of any Encumbrances (except as of July 1, 2011 (to Appurtenances to the “Effective Date”)extent provided for elsewhere herein) other than Permitted Encumbrances, all of Seller’s 's right, title and interest in and to all of Seller's property and assets, real, personal or mixed, tangible and intangible, of every kind and description, wherever located, including the following assets in clauses (but excluding the Excluded Assets):
(a) through all Real Property and all Appurtenances;
(b) all Tangible Personal Property;
(c) all Inventories;
(d) all Accounts Receivable and Unbilled Customer Revenue;
(e) all Seller Contracts and all outstanding offers or solicitations made by or to Seller to enter into any Contract;
(f) below (collectively, the “Sold Assets”), free all Governmental Authorizations and clear of all liabilities, debts, mortgages, liens, and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as the “Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”)pending applications therefor or renewals thereof, in each case, case to the extent transferable to Buyer;
(but only g) all data and Records related to the extentoperations of Seller, including client and customer lists and Records, all personnel records (provided that Seller shall have reasonable access thereto) of each Sale Container referral sources, research and development reports and Records, production reports and Records, service and warranty Records, equipment logs, operating guides and manuals, financial and accounting Records, creative materials, advertising materials, promotional materials, studies, reports, correspondence and other similar documents and Records and, subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease)Legal Requirements;
c. All (h) all of the intangible rights and property of Seller’s right, title including Intellectual Property assets, the trade name, "Florida Water Services", going concern value, goodwill, telephone, telecopy and interest in e-mail addresses and to listings;
(i) any purchase agreement pursuant all claims of Seller against third parties relating to the Assets, whether choate or inchoate, known or unknown, contingent or non-contingent; xxx
(j) all rights of Seller relating to deposits and prepaid expenses, claims for refunds and rights to offset in respect thereof and that are not excluded under Section 2.2, and not including Seller letters of credit for which the Seller acquired any is an applicant. All of the Sale Containers, (ii) warranties by property and assets to be transferred to Buyer hereunder are herein referred to collectively as the manufacturers "Assets" or original sellers of the Sale Containers, in each case, "Assets to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Date, including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued with respect to the Sale Containers on or after the Effective Date; and
e. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers that are maintained on behalf of Seller by CCC in the ordinary course of business (the “Books and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale ContainersSold".
Appears in 1 contract
Assets to be Sold. On a) Upon the Closing Date, terms and subject to the terms conditions of this Agreement, at the Closing, the Seller shall sell, convey, assign, transfer and conditions set forth herein, Seller shall, provided that deliver to the Purchaser all of the conditions set forth following:
(i) all Servicing Rights related to the Mortgage Loans which have been securitized in the transactions identified in Section 7 hereto have been satisfied2.01(a)(i) of the Disclosure Schedule (the "Purchased Servicing Rights");
(ii) the Real Property and the Leases identified in Section 2.01(a)(ii) of the Disclosure Schedule (the "Transferred Leases");
(iii) all furniture, sell, assign, transfer, convey fixtures and deliver other fixed assets and other articles of personal property related thereto to Buyer, and Buyer shall purchase and take from the extent of the Seller's ownership or other interests therein located on the premises leased pursuant to the Transferred Leases, in each case effective all material cases as identified in Section 2.01(a) (iii) of July 1, 2011 (the “Effective Date”), all of Seller’s right, title and interest in and to the following assets in clauses (a) through (f) below (collectively, the “Sold Assets”), free and clear of all liabilities, debts, mortgages, liens, and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as the “Sale Containers”Disclosure Schedule;
b. All (iv) all right, title and interest of Seller in the Contracts listed in Section 2.01(a) (iv) of the Disclosure Schedule relating to the Business and any other Contract entered into by the Seller in any lease to between the date hereof and Closing which any Sale Container is subject on the Effective Date (each, Purchaser hereafter agrees shall become a “Lease” and collectively, the “Leases”), in each case, to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease)Purchased Asset;
c. All of Seller’s right, title and interest in and to (iv) any purchase agreement pursuant to which Seller acquired any of the Sale Containers, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Dateall Business Records, including, without limitation, payments the customer lists owned exclusively by the Seller or shared with Affiliates, broker and correspondent lists and any related mailing lists relating to the Business and all records relating to the sale of rentloans by the Seller;
(vi) all Seller IPR and any rights in any Third Party IPR which are identified in Section 2.01(a) (vi) of the Disclosure Schedule;
(vii) all right, termination valuestitle and interest of Seller in the Custodial Accounts listed in Section 2.01(a)(vii) of the Disclosure Schedule; and
(viii) any and all rights and claims of Seller relating to any of the foregoing. All the assets to be transferred pursuant to this Agreement are referred to collectively herein as the "Purchased Assets".
(b) Notwithstanding anything to the contrary in this Agreement, casualty values the Purchased Assets shall not include any assets not specifically set forth in this Section 2.01 (the "Excluded Assets").
(c) The Purchased Assets shall not include any cash or cash equivalents owned by Seller at the time of the Closing.
(d) The sale, conveyance, assignment, transfer and insurance payments accrued delivery of the Purchased Assets shall be effected by delivery by the Seller to the Purchaser at the Closing of (i) the Xxxx of Sale, (ii) good and sufficient warranty deeds in recordable or registrable form, with respect to all Real Property owned by the Sale Containers on or after the Effective Date; and
e. All books, files, papers, correspondence, databases, documents, records Seller and other documentation thereof regarding any of the Sale Containers that are maintained on behalf of Seller by CCC included in the ordinary course Purchased Assets, and (iii) such other instruments of business (conveyance and transfer as the “Books and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records Purchaser shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containersreasonably request.
Appears in 1 contract
Assets to be Sold. On the Closing Date, subject to Upon the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in Section 7 hereto have been satisfiedthis Agreement, at the Closing and effective as of the Effective Time, each Seller shall sell, convey, assign, transfer, convey and deliver to Buyer, and Buyer shall purchase and take acquire from such Seller, in each case effective as free and clear of July 1, 2011 (the “Effective Date”)any Encumbrances other than Permitted Encumbrances, all of such Seller’s right, title title, and interest in and to all of such Seller’s property and assets, real, personal, or mixed, tangible and intangible, of every kind and description, wherever located, belonging to such Seller and which relate primarily to the business conducted by the TUG Airline Products Division of Sellers, including the design, manufacture, and sale of its products and the furnishing of advisory and consulting services to customers as well as any goodwill associated therewith (the “Business”), including the following assets in clauses (but excluding the Excluded Assets):
(a) through (f) below (collectively, all Real Property described in Sections 3.6 and 3.7 of the “Sold Assets”), free Seller Disclosure Letter and clear of all liabilities, debts, mortgages, liens, and encumbrances except as set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as the “Sale Containers”;
b. All right, title and interest of Sellers, if any, in and to the fixtures, equipment and other personal property owned by any Seller and attached or appurtenant to, or located on, the Real Property, subject only to Permitted Encumbrances;
(b) all Tangible Personal Property, including those items described in Section 3.8(c) of the Seller Disclosure Letter;
(c) all Inventories;
(d) all Accounts Receivable;
(e) all Seller Contracts, including those listed in Section 3.19(a)(i)-(xiii) of the Seller Disclosure Letter, and all outstanding offers or solicitations made by or to any lease Seller to which enter into any Sale Container is subject on Contract related primarily to the Effective Date Business;
(eachf) all Governmental Authorizations related to the Business and all pending applications therefor or renewals thereof, a “Lease” and collectively, including those listed in Section 3.16(b) of the “Leases”)Seller Disclosure Letter, in each case, case to the extent permitted by applicable Legal Requirement and otherwise transferable to Buyer;
(but only g) the data and Records of each Seller related primarily to the extentBusiness, including client and customer lists and Records, referral sources, research and development reports and Records, production reports and Records, service and warranty Records, equipment logs, operating guides and manuals, financial and accounting Records, any tax documentation collected from clients, lenders and others (such as sales tax exemption certificates), creative materials, advertising materials, promotional materials, studies, reports, correspondence and other similar documents and Records and, subject to Legal Requirements, copies of all personnel Records;
(h) all of the intangible rights and property of Sellers used primarily in the Business, including going concern value, and the Owned Intellectual Property, including the goodwill therein, listed in Sections 3.24(b)(i) and (ii) of the Seller Disclosure Letter and the right to xxx for infringement, including past infringement, thereof;
(i) all rights of Sellers relating to deposits and prepaid expenses, claims for refunds and rights to offset in respect thereof, in each Sale Container subject case related to the terms Business, that are not listed in Section 2.2(c) of such Lease the Seller Disclosure Letter and that are not excluded under Section 2.2(h); and
(it being acknowledged and agreed that containers owned by various persons may be subject j) all rights of Sellers, relating to the terms Industrial Revenue Bonds, including all rights of a Lease);
c. All of Seller’s right, title and interest Sellers in and to (i) any purchase agreement pursuant to which Seller acquired any the Irrevocable Letter of the Sale Containers, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Date, including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued with respect to the Sale Containers on or after the Effective Date; and
e. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers that are maintained on behalf of Seller by CCC Credit No. LC S7923 in the ordinary course original amount of business $3,675,000 from the Bank dated September 7, 1990 (the “Books and RecordsLetter of Credit”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws . All of the Cayman Islands (property and assets to be transferred to Buyer hereunder are herein referred to collectively as the “CAYAssets.”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containers.
Appears in 1 contract
Samples: Asset Purchase Agreement (Stewart & Stevenson Services Inc)
Assets to be Sold. On the Closing Date, subject to Upon the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in Section 7 hereto have been satisfiedthis Agreement, at the Closing and effective as of the Effective Time, each Seller shall sell, convey, assign, transfer, convey and deliver to Buyer, and Buyer shall purchase and take acquire from such Seller, free and clear of any Encumbrances other than Permitted Encumbrances all of such Seller’s right, title, and interest in and to the Business, including the following (but excluding the Excluded Assets):
(a) all Tangible Personal Property;
(b) all Inventories;
(c) Except as set forth in Section 2.2(k), all Seller Contracts, and all outstanding offers or solicitations made by or to any Seller to enter into any Contract related solely to the Business (the “Assigned Contracts”);
(d) the Real Property Lease set forth in the Seller Disclosure Letter, together with any leasehold improvements thereunder (the “Assigned Lease”);
(e) all Governmental Authorizations related solely to the Business and all pending applications therefor or renewals thereof, in each case effective as to the extent permitted by applicable Legal Requirement and otherwise transferable to Buyer;
(f) the data and Records of July 1each Seller related solely to the Business that, 2011 consistent with such Seller’s past practices, are located at a facility located on the land or located at a property subject to a Real Property Lease, including client and customer lists and Records, referral sources, research and development reports and Records, production reports and Records, service and warranty Records, equipment logs, operating guides and manuals, financial and accounting Records, creative materials, advertising materials, promotional materials, studies, reports, correspondence and other similar documents and Records and, subject to Legal Requirements, copies of all personnel Records; THE PORTIONS OF THIS AGREEMENT IDENTIFIED BY THE SYMBOL “[* * *]” HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST.
(the “Effective Date”), g) all of Seller’s the intangible rights and property of Sellers used solely in the Business, including going concern value, goodwill, Software, and the Owned Intellectual Property (including Sellers’ right, title and interest in or to any assumed fictional business names, trade names, registered and to the following assets in clauses (a) through (f) below (collectivelyunregistered trademarks, the service marks, applications, logos, icons or any other trade designation or derivative of “Sold AssetsFastTrack” or “Exchange Lynx”), free ;
(h) all rights in the internet web sites and clear of all liabilities, debts, mortgages, liens, and encumbrances except as internet domain names set forth in this Agreement:the Seller Disclosure Letter; and
a. The Containers(i) all claims of Seller against Third Parties relating to the Business or the Assets, whether xxxxxx or inchoate, known or unknown, contingent or non-contingent; such Containers being hereinafter and
(j) all rights of Sellers relating to deposits and prepaid expenses, claims for refunds and rights to offset in respect thereof, in each case related to the Business. All of the property and assets to be transferred to Buyer hereunder are herein referred to, collectively, to collectively as the “Sale Containers”;
b. All right, title and interest of Assets.” Notwithstanding the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”), in each caseforegoing, to the extent that any of the Assigned Contracts (but only other than those required to be assigned or renewed pursuant to Section 2.8(a)(ix) hereof) are not assignable without the consent, waiver or approval of another party, this Agreement shall not constitute an assignment or an attempted assignment thereof if such assignment or attempted assignment would constitute a breach thereof. Parent and Sellers, in consultation with Buyer, shall use reasonable efforts to obtain such consents as contemplated by Section 5.1 hereof, and Buyer shall submit any financial information reasonably requested by the contract party in connection with the purchase of the Business in applying for such consents. If any such consent is not obtained prior to the extent) of each Sale Container subject Closing Date, Parent and Sellers shall cooperate with Buyer in any reasonable arrangement designed to provide for Buyer the benefits intended to be assigned to the terms Buyer under the relevant contract, including enforcement at the cost and for the account of the Buyer of any and all rights of the Seller against the other party thereto arising out of the breach or cancellation thereof by such Lease (it being acknowledged and agreed other party or otherwise; provided that containers owned by various persons may be subject to the terms of a Lease);
c. All of Seller’s right, title and interest in and Buyer shall undertake to (i) any purchase agreement pursuant pay or satisfy the corresponding Liabilities for the enjoyment of such benefit to which Seller acquired any of the Sale Containersextent that Buyer would have been responsible therefor hereunder if such consent, waiver or approval had been obtained, (ii) warranties by pay all the manufacturers or original sellers reasonable costs and expenses of the Sale ContainersParent and Sellers, other than non out-of-pocket expenses (e.g., time of Parent’s and Sellers’ employees), in each case, to the extent (but only to the extent) that providing such purchase agreement or warranty relates to a Sale Containerarrangements and taking such actions, and (iii) indemnify Parent and Sellers in full for any security deposit(sloss, claims or damages resulting to Parent and Sellers (including reasonable attorneys’ fees and expenses) held by Seller under a Lease to the extent (but only to the extent) that in providing such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Date, including, without limitation, payments of rent, termination values, casualty values arrangements and insurance payments accrued with respect to the Sale Containers on or after the Effective Date; and
e. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers that are maintained on behalf of Seller by CCC in the ordinary course of business (the “Books and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in taking such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containersactions.
Appears in 1 contract
Assets to be Sold. On the Closing Date, subject to (a) Upon the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in Section 7 hereto have been satisfiedthis Agreement, sellSeller hereby sells, assignconveys, transferassigns, convey transfers and deliver delivers the Assets and assign the Assumed Liabilities to Buyer, and Buyer shall purchase hereby purchases and take acquires from Seller, in each case effective as the Assets and assume the Assumed Liabilities, for the Purchase Price.
(b) Seller hereby sells, conveys, assigns, transfers and delivers to Buyer and Buyer hereby purchases and acquires from Seller, free and clear of July 1, 2011 (the “Effective Date”)any Encumbrances other than Permitted Encumbrances, all of Seller’s right, title and interest in and to the following assets in clauses (a) through (f) below Business, including substantially all of Seller’s property and assets, whether real, personal or mixed, tangible and intangible, of every kind and description, wherever located other than the Excluded Assets (collectively, the “Sold Assets”), free and clear of which include the following:
(i) all liabilities, debts, mortgages, liens, and encumbrances except as Real Property Leases set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as Section 3.8 of the “Sale Containers”Disclosure Schedule;
b. All right(ii) all Tangible Personal Property;
(iii) all Inventories;
(iv) all Accounts Receivable;
(v) to the extent assignable by Seller after the Closing Date, title and interest all Assumed Contracts, including those listed in Section 3.20(a) of the Seller in any lease to which any Sale Container is subject on the Effective Date Disclosure Schedule;
(each, a “Lease” vi) all Governmental Authorizations and collectively, the “Leases”)all pending applications therefor or renewals thereof, in each case, case to the extent transferable to Buyer under applicable Legal Requirement, including those listed in Section 3.17(b) of the Disclosure Schedule, except for Governmental Authorizations solely relating to ownership of the Excluded Assets or relating to any Seller’s existence or good standing;
(but only vii) all data and Records related to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease);
c. All operations of Seller’s right, title and interest in and to (i) any purchase agreement pursuant to which Seller acquired any of the Sale Containers, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Date, including, without limitationthose relating to client and customer lists, payments of rentreferral sources, termination valuesresearch and development reports, casualty values production reports, service and insurance payments accrued with respect to the Sale Containers on or after the Effective Date; and
e. All bookswarranty, filesequipment logs, papersoperating guides and manuals, correspondencefinancial and accounting, databasescreative materials, documentsadvertising materials, records promotional materials, studies, reports, correspondence and other documentation thereof regarding any similar documents and, subject to Legal Requirements, copies of the Sale Containers that are maintained on behalf of Seller by CCC in the ordinary course of business (the “Books all personnel Records and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and other Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containers.described in
Appears in 1 contract
Assets to be Sold. On the Closing Date, subject to 2.1.1 Upon the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in this Agreement (including the conditions listed in this Section 7 hereto have been satisfied2.1 below), at the Closing, Seller shall, or Seller shall cause a Seller Local Entity (defined below in this Section 2.1) to, sell, convey, assign, transfer, convey transfer and deliver to Buyer or Buyer's nominee, and Buyer or Buyer's nominee shall purchase and take acquire from Seller, in each case effective as free and clear of July 1, 2011 (the “Effective Date”)any Encumbrances other than Permitted Encumbrances, all of Seller’s 's, or all of Seller Local Entity's, right, title and interest in and to the following assets in clauses of the Acquired Business as a going concern (but excluding the Retained Assets):
(a) through the tangible personal property items listed or described in Schedule 2.1.1(a), which Schedule shall be updated at Closing ("TANGIBLE PERSONAL PROPERTY");
(b) the Inventories reflected on the Final Statement of Net Operating Assets;
(c) the Accounts Receivable reflected on the Final Statement of Net Operating Assets;
(d) the Seller Contracts (including the Leased Real Property) listed or described in Schedule 2.1.1(d);
(e) the data and Records related to the operations of the Acquired Business, excluding all personnel Records and other Records that Seller is required by law to retain in its possession (copies of which shall be made available to Buyer on request);
(f) below the Intellectual Property Assets of the Acquired Business listed in Schedule 2.1.1(f); and
(collectively, g) pre-payments relating to the “Sold Assets”Acquired Business and other miscellaneous assets of the Acquired Business listed on Schedule 2.1.1(g), free .
2.1.2 All of the property and clear of all liabilities, debts, mortgages, liens, and encumbrances except as set forth in assets to be transferred to Buyer under this Agreement:
a. The Containers; such Containers being hereinafter Section 2.1 shall be herein referred to, collectively, to collectively as the “Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”), in each case, to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease);
c. All of Seller’s right, title and interest in and to (i) any purchase agreement pursuant to which Seller acquired any of the Sale Containers, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Date, including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued with "ACQUIRED ASSETS." With respect to the Sale Containers Schedules referenced in this Section 2.1 ("ASSET SCHEDULES"), Seller hereby provides to Buyer on or after the Effective date hereof a current schedule of such Assets. Not later than five (5) days prior to the Closing Date; and
e. All books, files, papers, correspondence, databases, documents, records Seller shall deliver to Buyer final updated Asset Schedules. Buyer shall have an opportunity to review all such updated asset schedules and other documentation thereof regarding request that Seller provide an explanation and/or support that any assets added to such schedules are part of the Sale Containers that are maintained on behalf of Seller by CCC in the ordinary course of business (the “Books and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws Acquired Business. The final disposition of the Cayman Islands Acquired Assets may be adjusted by the Final Statement of Net Operating Assets (“CAY”as defined in Section 2.3(e), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containers).
Appears in 1 contract
Assets to be Sold. On the Closing Date, subject to (a) Upon the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in Section 7 hereto have been satisfiedthis Agreement, at the Closing, Seller shall sell, convey, assign, transfer, convey transfer and deliver to Buyer, and Buyer shall purchase and take acquire from Seller, in each case effective as free and clear of July 1, 2011 (the “Effective Date”)any encumbrances, all of Seller’s 's right, title and interest in and to all of Seller's property and assets as of June 30, 2002, real, personal or mixed, tangible and intangible, of every kind and description, wherever located, including without limitation the following specific assets in clauses listed on Schedule 2.1
(a) hereto. All of the property and assets to be transferred to Buyer hereunder are herein referred to collectively as the "Assets."
(b) In the event certain Assets may not be legally transferred or assigned to Buyer upon Closing, Seller and/or Shareholder shall give Buyer the exclusive, royalty-free right to use such Assets through Seller (fback to back) below (collectivelyaccording to any applicable law for no additional consideration, and the provision by Buyer to Seller of this right shall be deemed fulfillment of Seller's obligations under this Section 2.1; provided, however, that to the extent that it becomes possible subsequent to the closing to legally transfer or assign such Assets to the Buyer after the Closing, Seller and/or Shareholder shall take all steps necessary or appropriate to effecting the parties' intent to transfer such Assets to the Buyer in fee simple absolute. Without limiting the generality of the foregoing, the “Sold Assets”)parties acknowledge that the Assets to which this subsection refers shall include, but shall not be limited to, the Technology Rights (as hereinafter defined) and any contractual rights with respect to agreements and/or leases as to which the Seller may require the consent of a third party in order to assign its rights and/or obligations thereunder to Buyer.
(c) Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, Seller shall sell, convey, assign, transfer and deliver to EFL, and EFL shall purchase and acquire from Shareholder, free and clear of any encumbrances, all liabilitiesof Shareholder's right, debtstitle and interest in the Seller's technology as listed on Schedule 2.1(c) hereto (the "Technology Rights") (unless the context clearly provides otherwise, mortgagesthe term "Assets" as used throughout this Agreement shall also include the Technology Rights). EFL and Buyer are fully aware to the provisions of the Law for the Encouragement of Industrial Research and Development, liens5744-1984, and encumbrances except as set forth in this Agreement:the regulations promulgated thereunder, and hereby undertake to follow the provisions of the above-mentioned law and regulations and/or any other applicable law relating to the Technology Rights.
a. The Containers; such Containers being hereinafter referred to(d) Simultaneously with the sale by the Seller of the Assets, collectivelythe Shareholder shall sell and assign to the Buyer, as for $1.00 and other good and valuable consideration, the “Sale Containers”;
b. All receipt and sufficiency of which is hereby acknowledged, $1,504,735 of the Shareholder's right, title and interest of the Seller in Shareholder and/or any lease to which any Sale Container is subject on subsidiary of the Effective Date (each, a “Lease” and collectively, the “Leases”), in each case, to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease);
c. All of Seller’s right, title and interest Shareholder in and to (i) any purchase agreement pursuant to which Seller acquired any of the Sale Containers, (ii) warranties by subordinated loan from the manufacturers or original sellers of the Sale Containers, in each case, Shareholder to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Date, including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued with respect to the Sale Containers on or after the Effective Date; and
e. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers that are maintained on behalf of Seller by CCC in the ordinary course amount of business $1,804,735 (such $1,504,735 interest that Buyer is acquiring from the “Books Shareholder is hereinafter referred to as the "Shareholder Loan"). Such sale and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records assignment shall be maintained evidence by and an assignment in the possession form of CAY, except as otherwise directed by Buyer as owner of the Sale ContainersExhibit 2.1(d) hereto.
Appears in 1 contract
Assets to be Sold. On Except as otherwise provided in Section 1.2, at the Closing Date, subject to closing provided for in Section 4 (the terms and conditions set forth herein"Closing"), Seller shall, provided that all of the conditions set forth in Section 7 hereto have been satisfied, shall sell, assign, transfer, convey and deliver to BuyerBuyer all of Seller's interest in all assets and properties owned by Seller, or in which Seller has any rights whatsoever, as of the Closing Date, of every type and description, real, personal or mixed, and wherever located, tangible and intangible, xxxxxx or inchoate, known or unknown, fixed or unfixed, accrued, absolute, contingent or otherwise, and whether or not reflected on the books and records of Seller or specifically referred to in this Agreement, including, without limitation,
(a) those assets reflected on the unaudited balance sheet of Seller as of July 4, 1998 referred to in Section 5.5 (the "Balance Sheet") (subject to transactions and adjustments in the ordinary course of the Business after July 4, 1998);
(b) all of the goodwill relating to the Business as a going concern;
(c) all of Seller's rights to any customer and inquiry lists;
(d) all of Seller's right to use the name "Bagcraft Corporation of America", "Bagcraft" or any derivative or similar name (subject to the provisions of Section 7.9);
(e) all of Seller's rights to its patents, trademarks, trade names, copyrights, service marks (including all registrations, applications for registration thereof and all goodwill associated therewith) and other intellectual property of any type whatsoever;
(f) all of Seller's rights to its processes, software, inventions, know-how, formulas and trade secrets;
(g) all of Seller's real property, plant and equipment, including, all buildings and improvements thereon, all water rights, easements, rights of way and other rights appurtenant to the real property;
(h) all of Seller's right, title and interest under all of the Business' contracts, agreements, licenses, leases and other similar documents;
(i) all of Seller's accounts and notes receivable;
(j) all of Seller's insurance policies; and
(k) all of the Seller's inventories, raw materials, work-in-process, supplies, books and records, information files, records and other data relating to the Business;
(l) all of Seller's tooling, equipment, machinery, spare parts, stores, dies, molds, vehicles, furniture, fixtures, leasehold and building improvements and other tangible property;
(m) all guaranties, warranties, indemnities and similar rights in favor of the Business;
(n) all permits, licenses, authorizations and other similar rights relating to the Business;
(o) all advertising, sales and promotional materials, catalogues, price lists, mailing lists, lists of customers, lists of suppliers, distribution lists, and production data of Seller; and
(p) all computerized records and other computerized storage media and all software and user manuals and documentation relating thereto. (All of the foregoing interests of Seller in such assets or properties to be sold, assigned, transferred, conveyed and delivered to Buyer hereunder are hereinafter sometimes collectively referred to as the "Assets"), and Buyer shall purchase and take from Seller, in each case effective as of July 1, 2011 (the “Effective Date”), all of Seller’s right, title and interest in and to Assets for the following assets in clauses (a) through (f) below (collectively, the “Sold Assets”), free and clear of all liabilities, debts, mortgages, liens, and encumbrances except as consideration set forth in this Agreement:
a. The Containers; such Containers being hereinafter referred to, collectively, as the “Sale Containers”;
b. All right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”), in each case, to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease);
c. All of Seller’s right, title and interest in and to (i) any purchase agreement pursuant to which Seller acquired any of the Sale Containers, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Date, including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued with respect to the Sale Containers on or after the Effective Date; and
e. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers that are maintained on behalf of Seller by CCC in the ordinary course of business (the “Books and Records”); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale ContainersSection 3.1.
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Assets to be Sold. On the Closing Date, subject to the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in Section 7 hereto have been satisfiedthis Agreement, at the Closing, Seller shall sell, assign, transfer, convey convey, assign and deliver to Buyer, Purchaser and Buyer Purchaser shall purchase and take from Seller, in each case effective as of July 1, 2011 (the “Effective Date”), all of Seller’s 's right, title and interest in and to all of the following assets in clauses Assets (aas herein defined) through (f) below (collectively, which includes the “Sold Assets”Business as a going concern), free and clear of all liabilitiesLiens, debtsother than Permitted Liens. At the Closing, mortgages, liens, Seller shall execute and encumbrances except as set forth deliver to Purchaser (x) a Xxxx of Sale substantially in this Agreement:
a. the form of Exhibit A hereto (the "Xxxx of Sale") and (y) a customary assignment of the Business Intellectual Property substantially in the form of Exhibit B hereto (the "Assignment of Business Intellectual Property"). The Containers; such Containers being hereinafter referred to, collectively, as the “Sale Containers”;
b. All "Assets" consist of all right, title and interest of the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” and collectively, the “Leases”), in each case, to the extent (but only to the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease);to:
c. All of Seller’s right, title and interest in and to (i) any purchase agreement pursuant to which Seller acquired any All rights under all written and oral (a) contracts and agreements with customers of the Sale ContainersBusiness, (iib) warranties purchase orders, sales orders and other orders and commitments issued by the manufacturers or original sellers customers of the Sale ContainersBusiness, (c) other licenses, leases, contracts and agreements which are used in each case, or relate to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective DateBusiness, including, without limitation, payments License Agreements and (d) to the extent not included in the foregoing, Assumed Contracts (as herein defined) (collectively, the "Business Contracts");
(ii) All rights to trades receivable, accounts receivable, notes receivable and other monies receivable relating to or arising out of rent, termination values, casualty values and insurance payments accrued the Business (the "Accounts Receivable");
(iii) All rights with respect to claims made under or pursuant to the Sale Containers Business Insurance Policies (as herein defined) through the Closing;
(iv) All product records, customer correspondence, production records, contract files, technical, accounting, manufacturing and procedural manuals, customer lists, employment records, studies, reports or summaries relating to any environmental conditions or consequences of any operation, present or former, as well as all studies, reports or summaries relating to any environmental aspect or the general condition of any of the Assets, to the extent that any of the foregoing are used in or relate to the Business;
(v) All rights under express or implied warranties and guarantees relating to any of the Assets or relating to or arising out of the Business;
(vi) All inventory of the Business, whether located at 000 Xxxx 0000 Xxxxx, Xxxxx, Xxxx or at any other location, including all inventory of the Business consisting of work in process and finished products (the "Inventory");
(vii) All property, plant, equipment, fixed assets, furniture and fixtures, and tangible personal property, including machinery, equipment, furniture, fixtures, buildings and other improvements, leasehold improvements, vehicles, structures, computers, supplies, office equipment and other property, in each case, relating to or used in connection with the Business other than the Inventory (the "Tangible Property");
(viii) All deposits and other similar assets related to or made in connection with any of the Assets as well as all prepayments or deposits received by Seller from customers of the Business (collectively, the "Prepayments and Deposits");
(ix) All rights of Seller under any non-disclosure agreements, non-solicitation agreements, non-competition agreements, confidentiality agreements or other restrictive agreements or covenants entered into with any Seller Employee or any other person to the extent such rights relate to the Business or the Assets to the extent such agreements are assignable;
(x) All goodwill of the Business and all Intellectual Property used or held for use by or in connection with the Business together with all income, royalties, damages and payments due or payable at the Closing or thereafter (including, without limitation, damages and payments for past or future infringements or misappropriations thereof) with respect thereto, the right to xxx and recover for past infringements or misappropriations thereof, any and all corresponding rights that, now or hereafter, may be secured throughout the world and all copies and tangible embodiments of any such Intellectual Property (the "Business Intellectual Property");
(xi) All franchises, approvals, permits, licenses, orders, registrations, certificates, variances and other similar permits and rights obtained from any government or similar type entity in connection with the conduct of the Business, and all pending applications therefore, to the extent the foregoing are by their terms or by law assignable;
(xii) Any and all cash received by Verso or Seller from any customer of the Business on or after January 14, 2005 (the Effective Date"Seller Received Cash"); and
e. All books(xiii) Except for the Excluded Assets, filesall other assets, papersproperties, correspondenceprepaid charges, databasesprepaid expenses, documentsclaims, records rights and other documentation thereof regarding any of the Sale Containers that are maintained on behalf interests of Seller by CCC in related to the ordinary course Business of business (the “Books every kind and Records”); providednature and description, howeverwhether tangible or intangible, thatreal, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containerspersonal or mixed.
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Assets to be Sold. On (a) Upon the Closing Date, terms and subject to the terms conditions of this Agreement, at the closing provided for in Section 1.03 hereof (the "Closing"), the Seller shall sell, convey, assign, transfer and conditions set forth herein, Seller shall, provided that deliver to the Buyer all of the conditions set forth in Section 7 hereto have been satisfied, sell, assign, transfer, convey and deliver to Buyer, and Buyer shall purchase and take from Seller, in each case effective as of July 1, 2011 (the “Effective Date”), all of Seller’s 's right, title and interest in and to the following property and assets of the Business listed and described in clauses (aSchedule 1.01(a) through (f) below hereto and the Seller shall sell, convey, assign, transfer and deliver to the Buyer the entire fee interest in the Owned Real Property, including all rights, benefits and hereditaments appurtenant thereto (collectively, the “Sold "Acquired Assets”"), expressly excluding the Excluded Assets, as hereinafter defined, free and clear of all liabilitiesEncumbrances, debts, mortgages, liens, except for the Assumed Liabilities and encumbrances except as set forth in this Agreement:the Permitted Encumbrances.
a. (b) The Containers; such Containers being hereinafter referred to, collectively, as the “Sale Containers”;
b. All right, title and interest of the Seller in Acquired Assets do not include any lease to assets which any Sale Container is subject are not listed on the Effective Date (each, a “Lease” and collectively, the “Leases”), in each case, to the extent (but only to the extentSchedule 1.01(a) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease);
c. All of Seller’s right, title and interest in and to (i) any purchase agreement pursuant to which Seller acquired any of the Sale Containers, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Datehereto, including, without limitation, payments those assets of rentthe Seller listed and described in Schedule 1.01(b) hereto (collectively, termination valuesthe "Excluded Assets").
(c) Such sale, casualty values conveyance, assignment, transfer and insurance payments accrued delivery shall be effected by delivery by the Seller to the Buyer or its designees of (i) a duly executed xxxx of sale, in substantially the form of Exhibit A-1 hereto (the "Xxxx of Sale"), (ii) a special warranty deed, in recordable form and in the form of Exhibit A-2 hereto (the "Deed"), with respect to the Sale Containers on or after the Effective Date; and
e. All booksOwned Real Property, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any (iii) an assignment of the Sale Containers that are maintained on behalf of Seller by CCC Contracts (as hereinafter defined), permits and certain other assets included in the ordinary course Acquired Assets in substantially the form of business Exhibit B hereto (the “Books "Assignment and Records”Assumption Agreement"); provided, however(iv) assignments of all of the trademarks of the Seller included in the Acquired Assets in substantially the form of Exhibit C hereto (the "Trademark Assignments"), thatand (v) such other good and sufficient instruments of conveyance and transfer, including, without limitation, assignments of any leases for Leased Property included in the Acquired Assets in substantially the form of Exhibit D hereto (the "Lease Assignment and Assumption Agreements") (collectively, the "Other Instruments"), as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and necessary to vest in the possession Buyer or one of CAYits subsidiaries good, except valid and marketable title to the Acquired Assets, free and clear of all Encumbrances, excepting the Assumed Liabilities (as otherwise directed by Buyer hereinafter defined) and Permitted Encumbrances (as owner of the Sale Containershereinafter defined).
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Samples: Asset Purchase Agreement (American Safety Razor Co)
Assets to be Sold. On the Closing Date, subject to (a) Upon the terms and conditions set forth herein, Seller shall, provided that all of subject to the conditions set forth in Section 7 hereto have been satisfiedthis Agreement, Sellers hereby sell, convey, assign, transfertransfer and deliver the Assets and assign the Assumed Liabilities to Buyers, convey and Buyers hereby purchase and acquire from Sellers, the Assets and assume the Assumed Liabilities, for the Purchase Price.
(b) Sellers hereby sell, convey, assign, transfer and deliver to Buyer, Buyers and Buyer shall Buyers hereby purchase and take acquire from SellerSellers, in each case effective as free and clear of July 1, 2011 (the “Effective Date”)any Encumbrances other than Permitted Encumbrances, all of Seller’s Sellers’ right, title and interest in and to substantially all of Sellers’ property and assets, whether real, personal or mixed, tangible and intangible, of every kind and description, wherever located other than the following assets in clauses (a) through (f) below Excluded Assets (collectively, the “Sold Assets”), which include the following:
(i) all Real Property Leases set forth in Section 3.8 of the Disclosure Schedule;
(ii) all Tangible Personal Property;
(iii) all Inventories;
(iv) all Accounts Receivable;
(v) all Assumed Contracts, including those listed in Section 3.20(a) of the Disclosure Schedule;
(vi) all Governmental Authorizations and all pending applications therefor or renewals thereof, in each case to the extent transferable to a Buyer under applicable Legal Requirement, including those listed in Section 3.17(b) of the Disclosure Schedule, except for Governmental Authorizations solely relating to ownership of the Excluded Assets or relating to any Seller’s existence or good standing;
(vii) all data and Records related to the operations of Sellers, including, those relating to client and customer lists, referral sources, research and development reports, production reports, service and warranty, equipment logs, operating guides and manuals, financial and accounting, creative materials, advertising materials, promotional materials, studies, reports, correspondence and other similar documents and, subject to Legal Requirements, copies of all personnel Records and other Records described in Section 2.2(g);
(viii) all of the intangible rights and property of Sellers, including all Intellectual Property Assets, going concern value, goodwill, telephone, telecopy and e-mail addresses and listings and those items listed in Section 3.25(b) of the Disclosure Schedule and Section 3.25(c) of the Disclosure Schedule;
(ix) to the extent assignable, all insurance proceeds, arising from or relating to the Assets or the Assumed Liabilities prior to the Closing;
(x) all claims of Seller against third parties relating to the Assets, whether xxxxxx or inchoate, known or unknown, contingent or noncontingent, including all such claims listed in Schedule 2.1(b)(x);
(xi) all rights of Seller relating to deposits and prepaid expenses, claims for refunds and rights to offset in respect thereof that are not excluded by Section 2.2(d) or Section 2.2(h); and
(xii) all rights of Sellers relating to the Savings Plan.
(c) Shareholders hereby convey, assign, transfer and deliver to Buyers and Buyers hereby accept and acquire from Shareholders for no consideration the vehicles set forth on Schedule 2.1(c) free and clear of any Encumbrances, “as is”, “where is” and “with all liabilitiesfaults”.
(d) The Assets are hereby be transferred from Sellers to Buyers as follows: the Assets of K Defense are hereby purchased by and transferred to API Defense, debtsexcept for the Assets associated with the activities of K Defense that require special classification and/or security clearance from the Defense Security Service, mortgages, lienswhich Assets are hereby purchased by and transferred to API USA, and encumbrances except as set forth in this Agreement:
a. the Assets of KII and K Industries are hereby purchased by and transferred to Systems. The Containers; such Containers being hereinafter referred to, collectively, as the “Sale Containers”;
b. All right, title and interest details of the Seller in any lease to which any Sale Container is subject on the Effective Date (each, a “Lease” purchase and collectively, the “Leases”), in each case, transfer of Assets to the extent Buyer are reflected in the Bills of Sale.
(but only to e) The transfer of the extent) of each Sale Container subject to the terms of such Lease (it being acknowledged and agreed that containers owned by various persons may be subject to the terms of a Lease);
c. All of Seller’s right, title and interest in and to (i) any purchase agreement Assets pursuant to which Seller acquired this Agreement does not include the assumption of any of the Sale ContainersLiability, (ii) warranties by the manufacturers or original sellers of the Sale Containers, in each case, unless Buyers expressly assume that Liability pursuant to the extent (but only to the extent) that such purchase agreement or warranty relates to a Sale Container, and (iii) any security deposit(s) held by Seller under a Lease to the extent (but only to the extent) that such security deposit relates to a Sale Container;
d. All proceeds of the Sale Containers to the extent accrued on or after the Effective Date, including, without limitation, payments of rent, termination values, casualty values and insurance payments accrued with respect to the Sale Containers on or after the Effective Date; and
e. All books, files, papers, correspondence, databases, documents, records and other documentation thereof regarding any of the Sale Containers that are maintained on behalf of Seller by CCC in the ordinary course of business (the “Books and Records”Section 2.6(a); provided, however, that, as long as CCC’s affiliate, Cronos Containers (Cayman) Ltd., a company organized and existing under the laws of the Cayman Islands (“CAY”), manages the Sale Containers for Buyer, then and in such event the Books and Records shall be maintained by and in the possession of CAY, except as otherwise directed by Buyer as owner of the Sale Containers.
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