Assets to be Transferred. On the terms and subject to the conditions set forth in this Agreement, at the Closing, Seller shall sell, assign, transfer, convey and deliver (or cause to be sold, assigned, transferred, conveyed and delivered) to Purchaser, and Purchaser shall purchase and assume from Seller, all of Seller’s right, title and interest in and to all of the following properties, assets, and rights, tangible and intangible (including goodwill) owned, used or held by Seller in the ownership, operation, or conduct of the Business, wherever such properties, assets and rights are located, whether real, personal or mixed, whether accrued, fixed, contingent or otherwise, other than the Excluded Assets, in accordance with Sections 363 and 365 of the Bankruptcy Code (collectively, other than the Excluded Assets, the “Assets”): (a) all Real Property Leases listed on Schedule 1.1(a), subject to the provisions of Section 1.8 below regarding Purchaser’s right to add additional Real Property Leases to, and eliminate Real Property Leases from, Schedule 1.1(a) (collectively, as Schedule 1.1(a) may be amended pursuant to Section 1.8, the “Assumed Leases”), including, without limitation, all rights of the tenant thereunder to any leasehold improvements, fixtures, betterments and additions or installations; (b) all (i) Contracts listed on Schedule 1.1(b), subject to the provisions of Section 1.8 regarding Purchaser’s right to add additional Contracts to, and eliminate Contracts from, Schedule 1.1(b), and (ii) any other Contract entered into by Seller that are either (xx) short-term Contracts (for a term of 1 year or less) entered into in the Ordinary Course of the Business following the date hereof which provide for aggregate payments by Seller during the term thereof reasonably estimated at $25,000 or less, or (yy) are added by Purchaser to Schedule 1.1(b) pursuant to the provisions of Section 1.8 (collectively, including the Assumed Leases, and as Schedule 1.1(b) may be amended pursuant to Section 1.8, the “Assumed Contracts”); (c) all Intellectual Property Assets and all income, royalties, damages and payments due or payable at the Closing or thereafter relating to the Intellectual Property Assets (including damages and payments for past or future infringements or misappropriations thereof); (d) all Fixed Assets; (e) all Inventory; (f) all (i) Accounts Receivable listed on Schedule 1.1(f) (collectively, the “Included Pharma Receivables”); (g) all Prepaid Expenses; (h) all Security Deposits; (i) all Books and Records (to the extent transferable without violating any privacy rights of any Business Employee); (j) all e-mail correspondence relating to the operations of the Business except to the extent the transfer of the same (A) would violate any Person’s privacy rights or (B) are subject to any attorney-client, work product or similar privilege with respect to work performed in anticipation of or in connection with the preparation or administration of the Bankruptcy Case; (k) to the extent transferable and assignable, all material licenses, franchises, permits, variances, exemptions, orders, approvals, and authorizations issued by Governmental Bodies in connection with Seller’s conduct of the Business (collectively, “Permits”); (l) all Equipment; (m) all telephone numbers, addresses (including electronic mail addresses) used by Seller in connection with the Business; (n) all goodwill to the extent relating to the Assets and/or the Business; (o) all rights to causes of action, lawsuits, judgments and Claims of any nature available to Seller (whether or not such cause of action, lawsuit, judgment or Claim is being pursued) arising out of, or relating to any Asset, including any cause of action, lawsuit, judgment, or Claim against a counterparty to an Assumed Contract, whether arising by way of counterclaim, set off, or rights of self-help under the Assumed Leases, the Assumed Contracts or otherwise, including all rights and claims of Seller arising under chapter 5 of the Bankruptcy Code against those Persons listed on Schedule 1.1(o) hereto (collectively, the “Included Avoidance Actions”), and including any and all proceeds of the foregoing; and (p) all advertising, marketing and promotional materials and all other printed or written materials.
Appears in 1 contract
Assets to be Transferred. On the terms and subject to the conditions set forth in this Agreement, at the Closing, Seller shall sell, assign, transfer, convey and deliver (or cause to be sold, assigned, transferred, conveyed and delivered) to Purchaser, and Purchaser shall purchase and assume from Seller, all of Seller’s right, title and interest in and to all of the following properties, assets, and rights, tangible and intangible (including goodwill) owned, used or held by Seller in the ownership, operation, or conduct of the Business, wherever such properties, assets and rights are located, whether real, personal or mixed, whether accrued, fixed, contingent or otherwise, other than the Excluded Assets, in accordance with Sections 363 and 365 of the Bankruptcy Code (collectively, other than the Excluded Assets, the “Assets”):
(a) all Real Property Leases listed on Schedule 1.1(a), subject to the provisions of Section 1.8 below regarding Purchaser’s right to add additional Real Property Leases to, and eliminate Real Property Leases from, Schedule 1.1(a) (collectively, as Schedule 1.1(a) may be amended pursuant to Section 1.8, the “Assumed Leases”), including, without limitation, all rights of the tenant thereunder to any leasehold improvements, fixtures, betterments and additions or installations;
(b) all (i) Contracts listed on Schedule 1.1(b), subject to the provisions of Section 1.8 regarding Purchaser’s right to add additional Contracts to, and eliminate Contracts from, Schedule 1.1(b), and (ii) any other Contract entered into by Seller that are either (xx) short-term Contracts (for a term of 1 year or less) entered into in the Ordinary Course of the Business following the date hereof which provide for aggregate payments by Seller during the term thereof reasonably estimated at $25,000 or less, or (yy) are added by Purchaser to Schedule 1.1(b) pursuant to the provisions of Section 1.8 (collectively, including the Assumed Leases, and as Schedule 1.1(b) may be amended pursuant to Section 1.8, the “Assumed Contracts”);
(c) all Intellectual Property Assets and all income, royalties, damages and payments due or payable at the Closing or thereafter relating to the Intellectual Property Assets (including damages and payments for past or future infringements or misappropriations thereof);
(d) all Fixed Assets;
(e) all Inventory;
(f) all (i) Accounts Receivable listed on Schedule 1.1(f) (collectively, the “Included Pharma Receivables”);
(g) all Prepaid Expenses;
(h) all Security Deposits;
(i) all Books and Records (to the extent transferable without violating any privacy rights of any Business Employee);
(j) all e-mail correspondence relating to the operations of the Business except to the extent the transfer of the same (A) would violate any Person’s privacy rights or (B) are subject to any attorney-client, work product or similar privilege with respect to work performed in anticipation of or in connection with the preparation or administration of the Bankruptcy Case;
(k) to the extent transferable and assignable, all material licenses, franchises, permits, variances, exemptions, orders, approvals, and authorizations issued by Governmental Bodies in connection with Seller’s conduct of the Business (collectively, “Permits”);
(l) all Equipment;
(m) all telephone numbers, addresses (including electronic mail addresses) used by Seller in connection with the Business;
(n) all goodwill to the extent relating to the Assets and/or the Business;
(o) all rights to causes of action, lawsuits, judgments and Claims of any nature available to Seller (whether or not such cause of action, lawsuit, judgment or Claim is being pursued) arising out of, or relating to any Asset, including any cause of action, lawsuit, judgment, or Claim against a counterparty to an Assumed Contract, whether arising by way of counterclaim, set off, or rights of self-help under the Assumed Leases, the Assumed Contracts or otherwise, including all rights and claims of Seller arising under chapter 5 of the Bankruptcy Code against those Persons listed on Schedule 1.1(o) hereto (collectively, the “Included Avoidance Actions”), and including any and all proceeds of the foregoing; and
(p) all advertising, marketing and promotional materials and all other printed or written materials.
Appears in 1 contract
Assets to be Transferred. On the terms and subject to the conditions set forth in this Agreement, at the Closing, the Seller shall sell, assign, transfer, convey and deliver (to the Purchaser or cause to be sold, assigned, transferred, conveyed and delivered) to Purchaserits designated permitted assigns, and the Purchaser or its designated permitted assigns shall purchase and assume from the Seller, all of the Seller’s 's right, title and interest in in, to and to all of under the following properties, assets, and rights, tangible and intangible (including goodwill) owned, used or held by Seller in the ownership, operation, or conduct of the Business, wherever such properties, assets and rights are located, whether real, personal or mixed, whether accrued, fixed, contingent or otherwise, other than the Excluded Assets (collectively, other than the Excluded Assets, the "Assets"), in accordance with Sections 363 and 365 of the Bankruptcy Code (collectively, other than the Excluded Assets, the “Assets”):Code:
(a) all Real Property Leases listed on Schedule 1.1(a), subject to ) and the provisions of Section 1.8 below regarding Purchaser’s right to add additional Real Property Leases to, and eliminate Real Property Leases from, Schedule 1.1(aDistribution Center Lease (as defined below) (collectively, as Schedule 1.1(a) may be amended pursuant to Section 1.8, the “"Assumed Leases”"), including, without limitation, all rights of the tenant thereunder to any leasehold improvements, fixtures, betterments and additions or installations;
(b) all (i) Contracts listed on Schedule 1.1(b), subject to the provisions of Section 1.8 below regarding Purchaser’s 's right to eliminate the Contracts on, and/or add additional Contracts to, and eliminate Contracts from, Schedule 1.1(b) (the Contracts listed in Schedule 1.1(b), as such Schedule is modified pursuant to Section 1.8, are collectively referred to herein as the "Listed Contracts"; the Listed Contracts and the Assumed Leases are collectively referred to herein as the "Assumed Contracts");
(i) the Intellectual Property set forth on Schedule 1.1(c), and (ii) any other Contract entered into by Seller that are either (xx) short-term Contracts (for a term of 1 year or less) entered into in the Ordinary Course of the Business following the date hereof which provide for aggregate payments by Seller during the term thereof reasonably estimated at $25,000 or less, or (yy) are added by Purchaser to Schedule 1.1(b) pursuant to the provisions of Section 1.8 (collectively, including the Assumed Leases, and as Schedule 1.1(b) may be amended pursuant to Section 1.8, the “Assumed Contracts”);
(c) all Intellectual Property Assets and all income, royalties, damages and payments due or payable at the Closing or thereafter relating to the Intellectual Property Assets (including damages and payments for past or future infringements or misappropriations thereof);
(d) all Fixed Assets;
(e) all Inventory;
(f) all (i) Accounts Receivable listed on Schedule 1.1(f) (collectively, the “Included Pharma Receivables”);
(g) all Prepaid Expenses;
(h) all Security Deposits;
(i) all Books and Records (to the extent transferable without violating any privacy rights of any Business Employee);
(j) all e-mail correspondence relating to the operations of the Business except to the extent the transfer of the same (A) would violate any Person’s privacy rights or (B) are subject to any attorney-client, work product or similar privilege with respect to work performed in anticipation of or in connection with the preparation or administration of the Bankruptcy Case;
(k) to the extent transferable and assignable, all material other Intellectual Property;
(d) all Fixed Assets and Equipment, wherever located, that are used to operate the Stores that are the subject of the Assumed Leases or that are used to operate the Distribution Center or the Buying Office (collectively, the "FF&E") including the FF&E located in such Stores set forth on Schedule 1.1(d);
(e) all customer data and customer management relationship software relating to the Business and in connection with the Stores that are the subject of the Assumed Leases (the "Customer Information");
(f) all Security Deposits relating to the Stores that are the subject of the Assumed Leases;
(g) all Inventory;
(h) to the extent transferable and assignable, all Books and Records relating to the Stores that are the subject of the Assumed Leases; provided, however, the Assets shall not include any books and records that are subject to attorney-client or other similar privilege or any other books or records that Seller is precluded or restricted from transferring pursuant to applicable law;
(i) to the extent transferable and assignable, all licenses, franchises, permits, variances, exemptions, orders, approvals, and authorizations issued by Governmental Bodies in connection with Seller’s conduct the Stores that are the subject of the Business Assumed Leases (collectively, “"Permits”");
(l) all Equipment;
(mj) all telephone numbers, numbers and addresses (including electronic mail addresses) used by the Seller in connection with the BusinessStores that are the subject of the Assumed Leases;
(nk) all goodwill arising in connection with the Stores that are subject to the extent relating to the Assets and/or the BusinessAssumed Leases;
(ol) all rights to causes of action, accounts receivables, lawsuits, rights to legal or equitable remedies, judgments and other Claims of any nature (whether legal or equitable, secured or unsecured, matured or un-matured, known or unknown, liquidated or unliquidated, contingent or non-contingent, senior or subordinated, disputed or non-disputed) owned or assertable by, or available to to, any Seller or any Seller's estate in the Bankruptcy Case (whether or not such cause of action, accounts receivable, lawsuit, right to legal or equitable remedies, judgment or Claim claim is being pursued) to the extent (and only to the extent) arising out ofwith respect to or in any way related to the Lease, or relating dated as of April 30, 1988, as amended, between The May Department Stores Company, a New York corporation, and Federated Department Stores, Inc., a Delaware corporation, for the property located at 426 Washington Street, Boston, Massachusetts (the "Downtown Crossxxx Xxxxx"), xxxxxxxxx xxx xxx xxxxxxx xxx xxom 426 Washington (as defined below) to any Asset, including Seller or any cause of action, lawsuit, judgment, Seller's estate in the Bankruptcy Case or Claim against a counterparty to an Assumed Contract, whether arising by way of counterclaim, set off, or rights of self-help under the Assumed Leases, the Assumed Contracts such lease or otherwise, including all rights and claims of Seller arising under chapter 5 of the Bankruptcy Code against those Persons listed on Schedule 1.1(o) hereto (collectively, the “Included Avoidance Actions”), and including any and all proceeds of the foregoing; and
(pm) all advertisingrepresentations, marketing and promotional materials warranties, guarantees, indemnities, undertakings, covenants not to compete benefiting the Business, certificates, covenants, agreements and all security therefor received by the Seller on the purchase or other printed or written materialsacquisition of any part of the Assets.
Appears in 1 contract
Samples: Asset Purchase Agreement (Syms Corp)
Assets to be Transferred. On the terms and subject to the conditions set forth in this Agreement, at the Closing, Seller shall sell, assign, transfer, convey and deliver (or cause to be sold, assigned, transferred, conveyed and delivered) to Purchaser, and Purchaser shall purchase and assume from Seller, all of Seller’s right, title and interest in and to all of the following properties, assets, and rights, tangible and intangible (including goodwill) owned, used or held by Seller in the ownership, operation, or conduct of the Business, wherever such properties, assets and rights are located, whether real, personal or mixed, whether accrued, fixed, contingent or otherwise, other than the Excluded Assets, in accordance with Sections 363 and 365 of the Bankruptcy Code (collectively, other than the Excluded Assets, the “Assets”):
(a) all Real Property Leases listed on Schedule 1.1(a), subject to the provisions of Section 1.8 below regarding Purchaser’s right to add additional Real Property Leases to, and eliminate Real Property Leases from, Schedule 1.1(a1.1
(a) (collectively, as Schedule 1.1(a) may be amended pursuant to Section 1.8, the “Assumed Leases”), including, without limitation, all rights of the tenant thereunder to any leasehold improvements, fixtures, betterments and additions or installations;
; (b) all (i) Contracts listed on Schedule 1.1(b), subject to the provisions of Section 1.8 regarding Purchaser’s right to add additional Contracts to, and eliminate Contracts from, Schedule 1.1(b), and (ii) any other Contract entered into by Seller that are either (xx) short-term Contracts (for a term of 1 year or less) entered into in the Ordinary Course of the Business following the date hereof which provide for aggregate payments by Seller during the term thereof reasonably estimated at $25,000 or less, or (yy) are added by Purchaser to Schedule 1.1(b) pursuant to the provisions of Section 1.8 (collectively, including the Assumed Leases, and as Schedule 1.1(b) may be amended pursuant to Section 1.8, the “Assumed Contracts”);
; (c) all Intellectual Property Assets and all income, royalties, damages and payments due or payable at the Closing or thereafter relating to the Intellectual Property Assets (including damages and payments for past or future infringements or misappropriations thereof);
; (d) all Fixed Assets;
; (e) all Inventory;
; (f) all (i) Accounts Receivable listed on Schedule 1.1(f) (collectively, the “Included Pharma Receivables”);
(g) all Prepaid Expenses;
(h) all Security Deposits;
(i) all Books and Records (to the extent transferable without violating any privacy rights of any Business Employee);
(j) all e-mail correspondence relating to the operations of the Business except to the extent the transfer of the same (A) would violate any Person’s privacy rights or (B) are subject to any attorney-client, work product or similar privilege with respect to work performed in anticipation of or in connection with the preparation or administration of the Bankruptcy Case;
(k) to the extent transferable and assignable, all material licenses, franchises, permits, variances, exemptions, orders, approvals, and authorizations issued by Governmental Bodies in connection with Seller’s conduct of the Business (collectively, “Permits”);
(l) all Equipment;
(m) all telephone numbers, addresses (including electronic mail addresses) used by Seller in connection with the Business;
(n) all goodwill to the extent relating to the Assets and/or the Business;
(o) all rights to causes of action, lawsuits, judgments and Claims of any nature available to Seller (whether or not such cause of action, lawsuit, judgment or Claim is being pursued) arising out of, or relating to any Asset, including any cause of action, lawsuit, judgment, or Claim against a counterparty to an Assumed Contract, whether arising by way of counterclaim, set off, or rights of self-help under the Assumed Leases, the Assumed Contracts or otherwise, including all rights and claims of Seller arising under chapter 5 of the Bankruptcy Code against those Persons listed on Schedule 1.1(o) hereto (collectively, the “Included Avoidance Actions”), and including any and all proceeds of the foregoing; and
(p) all advertising, marketing and promotional materials and all other printed or written materials.1.1
Appears in 1 contract
Samples: Asset Purchase Agreement
Assets to be Transferred. On Subject to the terms and subject to the conditions set forth in of this Agreement, and except as otherwise expressly provided in Articles 1.2 and 1.4 hereof, at the ClosingClosing (as defined in Article 10.1 hereof), Seller shall sell, assign, transfer, convey and deliver (or cause to be sold, assigned, transferred, conveyed and delivered) to PurchaserBuyer, and Purchaser Buyer shall purchase purchase, acquire and assume accept from Seller, all of Seller’s 's right, title and interest in and to all of the following propertiesproperty, assetsplant, machinery, equipment, inventories, goodwill, and rightsother assets of every kind, character and description, whether tangible and intangible (including goodwill) owned, used or held by Seller in the ownership, operation, or conduct of the Business, wherever such properties, assets and rights are locatedintangible, whether real, personal or mixed, whether accruedand wherever situated, fixedowned, contingent possessed, leased or otherwiselicensed by any of Seller or its affiliates and used by Seller or its affiliates primarily in the conduct of the Business, other than with such changes, deletions or additions thereto as may occur from the Excluded Assets, date hereof to the Closing in accordance with Sections 363 the terms and 365 conditions of this Agreement and any Ancillary Agreement (as defined herein) executed in connection herewith, including, without limitation, each of the Bankruptcy Code following assets used by Seller or its affiliates primarily in the conduct of the Business, except as otherwise expressly provided in Article 1.2 hereof (collectively, other than the Excluded "Assets, the “Assets”"):
(a) all Real Property Leases properties, assets, rights and entitlements reflected on the balance sheet included in the Financial Statements (as defined in Article 5.16(a)) hereof);
(b) all real property used by the Business that is owned by Seller and listed on Schedule 1.1(a5.3(a) and all buildings, structures and other improvements and fixtures located on such real property and any additions, improvements, replacements and alterations thereto between the date hereof and the Closing Date;
(c) all leasehold interests in real property relating to the Business leased by Seller and listed on Schedule 5.3(b), subject including all buildings, structures and other improvements located on such real property and any additions, improvements, replacements and alterations thereto between the date hereof and the Closing Date;
(d) all tangible personal property and interests therein located on the real property or leaseholds listed on Schedules 5.3(a) or 5.3(b) or used by the Division, including all machinery, equipment, furniture, equipment, raw materials, supplies, spare and replacement parts, vehicles, storage tanks, fuel and construction in progress;
(e) all inventory and work in progress relating to the provisions of Section 1.8 below regarding Purchaser’s right to add additional Real Property Leases to, and eliminate Real Property Leases from, Schedule 1.1(a) (collectively, as Schedule 1.1(a) may be amended pursuant to Section 1.8, the “Assumed Leases”)Business, including, without limitation, all rights any of such items in transit from manufacturing facilities or warehouses of Seller (the tenant thereunder to any leasehold improvements, fixtures, betterments and additions or installations;
(b) all (i) Contracts listed on Schedule 1.1(b"Inventory"), subject to the provisions of Section 1.8 regarding Purchaser’s right to add additional Contracts to, and eliminate Contracts from, Schedule 1.1(b), and (ii) any other Contract entered into by Seller that are either (xx) short-term Contracts (for a term of 1 year or less) entered into in the Ordinary Course of the Business following the date hereof which provide for aggregate payments by Seller during the term thereof reasonably estimated at $25,000 or less, or (yy) are added by Purchaser to Schedule 1.1(b) pursuant to the provisions of Section 1.8 (collectively, including the Assumed Leases, and as Schedule 1.1(b) may be amended pursuant to Section 1.8, the “Assumed Contracts”);
(c) all Intellectual Property Assets and all income, royalties, damages and payments due or payable at the Closing or thereafter relating to the Intellectual Property Assets (including damages and payments for past or future infringements or misappropriations thereof);
(d) all Fixed Assets;
(e) all Inventory;
(f) all accounts and notes receivable relating to the Business, including intercompany receivables, deposits and advances, and other receivables (i) the "Accounts Receivable listed on Schedule 1.1(f) (collectively, the “Included Pharma Receivables”Receivable");
(g) all Prepaid Expensesrights under all contracts, leases, licenses, commitments, sales orders, purchase orders, invoices and other agreements relating to the Business (the "Contracts");
(h) all Security Depositswarranties, claims and causes of action against third parties relating to the Business, except to the extent related to Excluded Assets or Excluded Liabilities;
(i) all Books prepayments and Records (prepaid expenses relating to the extent transferable without violating any privacy rights of any Business Employee)Business;
(j) all eUnited States, state and foreign intellectual property owned or used by the Division, including, without limitation: (i) (A) inventions, technology, discoveries, processes, formulae, designs, methods, techniques, procedures, machines, manufactures, concepts, developments, new and useful improvements thereof and know-mail correspondence how relating to thereto, whether or not patented or eligible for patent protection; (B) copyrights and copyrightable works, including computer applications, programs, software, databases and related items; (C) trademarks, service marks, trade names, trade dress, the operations goodwill of the Business except symbolized thereby and appurtenant thereto, and all common-law rights relating thereto; (D) trade secrets and other confidential or proprietary designs and information; (ii) all registrations, applications, recordings and licenses related to the extent foregoing; (iii) the transfer of right to obtain all renewals, reissues, divisions, continuations or other similar legal protections pertaining to the same foregoing; and (Aiv) would violate any Person’s privacy rights or (B) are subject the right to any attorney-client, work product or similar privilege with respect to work performed in anticipation of sue at law or in connection with equity for any infringement or misappropriation of, xx impairment to the preparation or administration of foregoing, including the Bankruptcy Caseright to receive all proceeds and damages therefrom (collectively "Intellectual Property");
(k) originals or copies of all records, files, invoices, customer lists, supplier lists, blueprints, specifications, designs, accounting books and records, tax books and records, business books and records, promotional or advertising material, operating data and plans, and other relevant data relating to the Business; provided that Seller shall retain originals of any such items which (x) relate primarily to the Excluded Assets or Excluded Liabilities; (y) are income tax books and records; or (z) are tax books and records (other than income tax) relating to taxes paid by Seller prior to the Closing; provided further that Buyer shall receive copies of the items set forth in clauses (x), (y) and (z) to the extent transferable such records do not contain confidential information of Seller, and, to the extent such records do contain confidential information, Seller shall provide Buyer and assignable, its representatives with access during normal business hours upon reasonable prior notice to such other confidential records; and Buyer shall receive originals of all material licenses, franchises, permits, variances, exemptions, orders, approvals, and authorizations issued by Governmental Bodies in connection with Seller’s conduct of the Business (collectively, “Permits”)other such items;
(l) all Equipmentfederal, state, local and other governmental licenses, permits, approvals and authorizations relating to the Business to the extent transferrable or assignable;
(m) all telephone numbersinsurance proceeds relating to the Business arising out of or related to damage, addresses (including electronic mail addresses) used by Seller in connection with destruction or loss of any Assets to the Businessextent of any damage or destruction that remains unrepaired, or to the extent any Assets remain unreplaced, as of the Closing;
(n) all goodwill to telephone numbers of the extent relating to the Assets and/or the BusinessDivision;
(o) all rights to causes of action, lawsuits, judgments and Claims of any nature available to Seller (whether or not such cause of action, lawsuit, judgment or Claim is being pursued) arising out of, or relating to any Asset, including any cause of action, lawsuit, judgment, or Claim against a counterparty to an Assumed Contract, whether arising by way of counterclaim, set off, or rights of self-help under goodwill associated with the Assumed LeasesBusiness, the Assumed Contracts Division or otherwise, including all rights and claims of Seller arising under chapter 5 of the Bankruptcy Code against those Persons listed on Schedule 1.1(o) hereto (collectively, the “Included Avoidance Actions”), and including any and all proceeds of the foregoingAssets; and
(p) all advertising, marketing other properties and promotional materials assets of Seller and all other printed its affiliates used primarily in the conduct of the Business as presently conducted or written materialsas conducted on the date of the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Russell-Stanley Holdings Inc)
Assets to be Transferred. On Subject to the terms and subject to the conditions set forth in of this Agreement, at the Closing, Seller shall sell, assign, transfer, convey and deliver (or cause to be sold, assigned, transferred, conveyed and delivered) to PurchaserBuyer, and Purchaser Buyer shall purchase purchase, acquire and assume accept from Seller, all of Seller’s right, title and interest in and to all of the following properties, assets, and rights, tangible and intangible (including goodwill) owned, used or held by Seller in the ownership, operation, or conduct of the Business, wherever such properties, assets and rights are located, whether real, personal or mixed, whether accrued, fixed, contingent or otherwise, other than the Excluded Assets, in accordance with Sections 363 and 365 of the Bankruptcy Code (collectively, other than the Excluded Assets, the “Assets”):
(a) all Real Property Leases listed on Schedule 1.1(a), subject to the provisions of Section 1.8 below regarding Purchaser’s right to add additional Real Property Leases to, and eliminate Real Property Leases from, Schedule 1.1(a) (collectively, as Schedule 1.1(a) may be amended pursuant to Section 1.8, the “Assumed Leases”), including, without limitation, all rights of the tenant thereunder to any leasehold improvements, fixtures, betterments and additions or installations;
(b) all (i) Contracts listed on Schedule 1.1(b), subject to the provisions of Section 1.8 regarding Purchaser’s right to add additional Contracts to, and eliminate Contracts from, Schedule 1.1(b), and (ii) any other Contract entered into by Seller that are either (xx) short-term Contracts (for a term of 1 year or less) entered into in the Ordinary Course of the Business following the date hereof which provide for aggregate payments by Seller during the term thereof reasonably estimated at $25,000 or less, or (yy) are added by Purchaser to Schedule 1.1(b) pursuant to the provisions of Section 1.8 (collectively, including the Assumed Leases, and as Schedule 1.1(b) may be amended pursuant to Section 1.8, the “Assumed Contracts”);
(c) all Intellectual Property Assets and all income, royalties, damages and payments due or payable at the Closing or thereafter relating to the Intellectual Property Assets (including damages and payments for past or future infringements or misappropriations thereof);
(d) all Fixed Assets;
(e) all Inventory;
(f) all (i) Accounts Receivable listed on Schedule 1.1(f) (collectively, the “Included Pharma Receivables”);
(g) all Prepaid Expenses;
(h) all Security Deposits;
(i) all Books and Records (to the extent transferable without violating any privacy rights of any Business Employee);
(j) all e-mail correspondence relating to the operations of the Business except to the extent the transfer of the same (A) would violate any Person’s privacy rights or (B) are subject to any attorney-client, work product or similar privilege with respect to work performed in anticipation of or in connection with the preparation or administration of the Bankruptcy Case;
(k) to the extent transferable and assignable, all material licenses, franchises, permits, variances, exemptions, orders, approvals, and authorizations issued by Governmental Bodies in connection with Seller’s conduct of the Business (collectively, “Permits”);
(l) all Equipment;
(m) all telephone numbers, addresses (including electronic mail addresses) used by Seller in connection with the Business;
(n) all goodwill to , except for the extent relating to the Excluded Assets and/or the Business;
(o) all rights to causes of action, lawsuits, judgments and Claims of any nature available to Seller (whether or not such cause of action, lawsuit, judgment or Claim is being pursued) arising out of, or relating to any Asset, including any cause of action, lawsuit, judgment, or Claim against a counterparty to an Assumed Contract, whether arising by way of counterclaim, set off, or rights of self-help under the Assumed Leases, the Assumed Contracts or otherwise, including all rights and claims of Seller arising under chapter 5 of the Bankruptcy Code against those Persons listed on Schedule 1.1(o) 2.1 attached hereto (the “Excluded Assets”), with such changes, deletions or additions thereto as may occur from the date hereof to the Closing in the ordinary course of business (collectively, the “Included Avoidance ActionsAcquired Assets”), including, but not limited to the following:
(a) all right, title and interest of Seller in, to and under all of Seller’s current assets and fixed assets described in Schedule 2.1(a), and all right, title and interest of the Seller in and to all tangible personal property, furnishings, furniture, office supplies, inventory, and other fixed assets owned by Seller used by or useful to the operation of the Business (collectively, the “Equipment”), including, but not limited to, the Equipment listed on Schedule 2.1(a);
(b) all accounts receivable and other rights to payment of money and all rights in and to any returned, reclaimed and repossessed goods, together with all rights, claims, counterclaims, titles, securities, security interests, liens and guaranties evidencing, securing, guaranteeing payment of, relating to or otherwise with respect to such accounts receivable and all rights, including any rights to recoupment, recovery, reclamation and resale (collectively, the “Accounts Receivable”), including, but not limited to, the Accounts Receivable listed on Schedule 2.1(a) to the extent not collected prior to the Closing;
(c) all chattel paper, notes, drafts, surety bonds, insurance policies, insurance proceeds, insurance refunds, insurance dividends, and all rights to insurance proceeds, refunds and dividends, under any insurance policies existing on or prior to the Closing Date;
(d) all of Seller’s intangible assets related to the Business, including without limitation customer lists, vendor lists, processes, designs, inventions, trade secrets, know-how, marketing and advertising programs, computer programs, software applications, website and email addresses or numbers, formulae, customer lists, contractors’ and manufacturers’ warranties, licenses and permits (to the extent the same can be assigned) respecting any and all proceeds personal property to be acquired hereunder, all copyrights, patents, trademarks, corporate or company names, trade names, logos and service marks owned by the Seller, remedies against infringement thereof and rights to the protection of all interests therein under the laws of all jurisdictions, and any pending applications, registrations, extensions and renewals for any of the foregoing, all additions to any of the foregoing acquired from the date hereof through the Closing Date and all licenses or similar agreements or arrangements (the “Licenses”) with respect to the foregoing to which the Seller is a party either as a licensee or licensor (collectively the “Intangible Personal Property”), including but not limited to the Intangible Personal Property listed on Schedule 2.1(d);
(e) all deposits and prepaid expenses;
(f) all of the Contracts listed on Schedule 4.17;
(g) except as set forth in Schedule 2.1, copies or the originals of all business and financial records, computer hardware, promotional and advertising lists, telephone, telecopy and fax numbers, files, books, keys, alarm codes, manuals and documents relating to the Acquired Assets or the Business (the “Books and Records”); and
(ph) all advertising, marketing goodwill and promotional materials and all other printed or written materialsgoing concern value attributable to the Business.
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Assets to be Transferred. On the terms and subject to the conditions set forth in this Agreement, at the Closing, Seller shall sell, assign, transfer, convey and deliver (or cause to be sold, assigned, transferred, conveyed and delivered) to Purchaser, and Purchaser shall purchase and assume from Seller, all of Seller’s right, title and interest in and to all of the following properties, assets, and rights, tangible and intangible (including goodwill) owned, used or held by Seller in the ownership, operation, or conduct of the Business, wherever such properties, assets and rights are located, whether real, personal or mixed, whether accrued, fixed, contingent or otherwise, other than the Excluded Assets, in accordance with Sections 363 and 365 of the Bankruptcy Code (collectively, other than the Excluded Assets, the “Assets”):
(a) all Real Property Leases listed on Schedule 1.1(a), subject to the provisions of Section 1.8 below regarding Purchaser’s right to add additional Real Property Leases to, and eliminate Real Property Leases from, Schedule 1.1(a) (collectively, as Schedule 1.1(a) may be amended pursuant to Section 1.8, the “Assumed Leases”), including, without limitation, all rights of the tenant thereunder to any leasehold improvements, fixtures, betterments and additions or installations;
(b) (b) all (i) Contracts listed on Schedule 1.1(b), subject to the provisions of Section 1.8 regarding Purchaser’s right to add additional Contracts to, and eliminate Contracts from, Schedule 1.1(b), and (ii) any other Contract entered into by Seller that are either (xx) short-term Contracts (for a term of 1 year or less) entered into in the Ordinary Course of the Business following the date hereof which provide for aggregate payments by Seller during the term thereof reasonably estimated at $25,000 or less, or (yy) are added by Purchaser to Schedule 1.1(b) pursuant to the provisions of Section 1.8 (collectively, including the Assumed Leases, and as Schedule 1.1(b) may be amended pursuant to Section 1.8, the “Assumed Contracts”);
(c) all Intellectual Property Assets and all income, royalties, damages and payments due or payable at the Closing or thereafter relating to the Intellectual Property Assets (including damages and payments for past or future infringements or misappropriations thereof);
(d) all Fixed Assets;
(e) all Inventory;
(f) all (i) Accounts Receivable listed on Schedule 1.1(f) (collectively, the “Included Pharma Receivables”);
(g) all Prepaid Expenses;
(h) all Security Deposits;
(i) all Books and Records (to the extent transferable without violating any privacy rights of any Business Employee);
(j) all e-mail correspondence relating to the operations of the Business except to the extent the transfer of the same (A) would violate any Person’s privacy rights or (B) are subject to any attorney-client, work product or similar privilege with respect to work performed in anticipation of or in connection with the preparation or administration of the Bankruptcy Case;
(k) to the extent transferable and assignable, all material licenses, franchises, permits, variances, exemptions, orders, approvals, and authorizations issued by Governmental Bodies in connection with Seller’s conduct of the Business (collectively, “Permits”);
(l) all Equipment;
(m) all telephone numbers, addresses (including electronic mail addresses) used by Seller in connection with the Business;
(n) all goodwill to the extent relating to the Assets and/or the Business;
(o) all rights to causes of action, lawsuits, judgments and Claims of any nature available to Seller (whether or not such cause of action, lawsuit, judgment or Claim is being pursued) arising out of, or relating to any Asset, including any cause of action, lawsuit, judgment, or Claim against a counterparty to an Assumed Contract, whether arising by way of counterclaim, set off, or rights of self-help under the Assumed Leases, the Assumed Contracts or otherwise, including all rights and claims of Seller arising under chapter 5 of the Bankruptcy Code against those Persons listed on Schedule 1.1(o) hereto (collectively, the “Included Avoidance Actions”), and including any and all proceeds of the foregoing; and
(p) all advertising, marketing and promotional materials and all other printed or written materials.
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