Assets to be Transferred Except as otherwise provided in Section 2.03, on the terms and subject to the conditions of this Agreement, at the Closing and effective as of the Effective Time, Seller shall sell, convey, assign and transfer to Purchaser all of Seller’s right, title and interest in and to the following properties and assets that are used exclusively in connection with the Restaurants (collectively, the “Assets”) free and clear of all Liens except for Permitted Liens:
(a) A leasehold interest in the Owned Real Property and a subleasehold interest in the Leased Real Property;
(b) all of the furniture, trade fixtures and equipment that are owned by Seller and located at a Restaurant as of the Effective Time (collectively, the “Equipment”);
(c) the Contracts to which Seller is a party that are in effect as of the Effective Time and that relate exclusively to the Business listed on Schedule 2.02(b) (collectively, the “Assigned Contracts”);
(d) the cash bank for each Existing Restaurant and other prepaid and special items listed on Schedule 2.02(c) (collectively, the “Special Items”);
(e) the Inventory and all other inventories, supplies and other tangible personal property that are owned by Seller and located in a Restaurant as of the Effective Time including counters, shelving, racks, slat walls, display cases, décor, tables, seating, signs, promotional items and materials, new and unused uniforms, smallwares and office supplies (collectively, the “Personal Property”);
(f) all tools, equipment, and repair and maintenance supplies located in or on the Leased Vehicles (the “Repair and Maintenance Inventory”);
(g) to the extent transferable under applicable law, the Permits necessary for the operation of the Business as currently operated, and Seller will provide to Purchaser prior to the Closing a list of all Permits held by Seller with respect to the Business; and
(h) all of Seller’s rights against its suppliers with respect to express or implied warranties made in the sale to Seller of the Assets to the extent such rights (i) automatically transfer to the Purchaser as the new owner of the Assets, (ii) do not require the consent of any third parties and (iii) do not impose any costs or expenses on Seller or its Affiliates.
ASSETS TO BE ACQUIRED The assets of the Selling Fund to be acquired by the Acquiring Fund shall consist of all property, including without limitation all cash, securities, commodities and futures interests and dividends or interest receivable, which are owned by the Selling Fund and any deferred or prepaid expenses shown as an asset on the books of the Selling Fund on the Closing Date. The Selling Fund has provided the Acquiring Fund with its most recent audited financial statements which contain a list of all of Selling Fund's assets as of the date thereof. The Selling Fund hereby represents that as of the date of the execution of this Agreement there have been no changes in its financial position as reflected in said financial statements other than those occurring in the ordinary course of its business in connection with the purchase and sale of securities and the payment of its normal operating expenses. The Selling Fund reserves the right to sell any of such securities but will not, without the prior written approval of the Acquiring Fund, acquire any additional securities other than securities of the type in which the Acquiring Fund is permitted to invest. The Acquiring Fund will, within a reasonable time prior to the Closing Date, furnish the Selling Fund with a statement of the Acquiring Fund's investment objectives, policies and restrictions and a list of the securities, if any, on the Selling Fund's list referred to in the second sentence of this paragraph which do not conform to the Acquiring Fund's investment objectives, policies, and restrictions. In the event that the Selling Fund holds any investments which the Acquiring Fund may not hold, the Selling Fund will dispose of such securities prior to the Closing Date. In addition, if it is determined that the Selling Fund and the Acquiring Fund portfolios, when aggregated, would contain investments exceeding certain percentage limitations imposed upon the Acquiring Fund with respect to such investments, the Selling Fund if requested by the Acquiring Fund will dispose of a sufficient amount of such investments as may be necessary to avoid violating such limitations as of the Closing Date.
Assets to be Held The Custodian shall limit the securities and other assets maintained in the custody of the foreign sub-custodians to: (a) "foreign securities", as defined in paragraph (c)(1) of Rule 17f-5 under the Investment Company Act of 1940, and (b) cash and cash equivalents in such amounts as the Custodian or the Fund may determine to be reasonably necessary to effect the Fund's foreign securities transactions. The Custodian shall identify on its books as belonging to the Fund, the foreign securities of the Fund held by each foreign sub-custodian.
Assets to be Purchased At Closing (as hereinafter defined) subject to the terms and conditions of this Agreement, Seller shall sell to Buyer, and Buyer shall purchase from Seller, all or substantially all of Seller's assets utilized in the operation of Seller's Boulder Facility (the "Business"), free and clear of all liens, encumbrances, and charges (the "Assets"), which Assets shall include without limitation the following:
(a) all inventory owned, used or held for use with respect to Seller's Business, including parts, materials, packaging, works in progress and finished goods located at Seller's Boulder Facility at the close of business on the date of Closing, as hereinafter defined on the attached Schedule 1(a) (the "Inventory");
(b) all of Seller's right, title and interest in and to those certain fixed assets that are described on the attached Schedule 1(b) (the "Fixed Assets");
(c) all of Seller's right, title and interest in and to any and all licenses and permits, to the extent assignable, whether state, federal, county, municipal, or otherwise material to the operation of the Boulder Facility, leases, equipment warranties, maintenance contracts, service contacts and other commitments as may be assumed in writing by Buyer or as set forth on the attached Schedule 1(c); and
(d) all of Seller's right, title and interest in and to the general intangibles and goodwill associated with the operation of the Assets at Seller's Boulder Facility, including all telephone numbers used by Seller at the Boulder Facility, access to certain books and records of Seller which pertain to the Boulder Facility Business, including sales, customer lists and suppliers, paid invoices, repair orders, employee records for the last three years, yellow page advertising (subject to Section 12.1), copies of pending sales orders, work in process and all other documents associated with the Boulder Business (the "Company Records").
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.
Purchased Assets On the terms and subject to the conditions of this Agreement, at the Closing, Seller shall, and shall cause its Subsidiaries to, sell, assign, transfer, convey and deliver to Purchaser (or a Subsidiary or Subsidiaries of Purchaser identified to Seller in writing at least three (3) business days before the Closing), and Purchaser shall (or shall cause its applicable Subsidiaries to) purchase and acquire from Seller and its Subsidiaries all of Seller’s and/or its Subsidiaries’ right, title and interest as of the Closing in the following (collectively, the “Purchased Assets”), free and clear of all Liens, other than Permitted Liens:
(a) (i) each Business License Contract and (ii) each Contract with customers (including support and services Contracts), partners, distributors or resellers of the Business (other than, for the avoidance of doubt, (x) Contracts solely between Seller and its Subsidiaries or solely between Subsidiaries of Seller and (y) leases of real property) (collectively, (i) and (ii), together with the Contracts designated as Purchased Assets pursuant to Section 2.4(l), such Contracts or portions (to the extent related to the Business) of Contracts, the “Business Contracts”); provided that and for the avoidance of doubt, Business Contracts shall not include any Contract in respect of hosting services provided to the Business;
(b) the Transferred Leases;
(c) the Transferred Intellectual Property Rights, including (other than with respect to Retained Claims) the right to seek and obtain damages for the past, present or future infringement, misappropriation or other violation of any Transferred Intellectual Property Rights, and the goodwill of the Business appurtenant to such Transferred Intellectual Property Rights;
(d) the Transferred Technology, including (other than with respect to Retained Claims) the right to seek and obtain damages for the past, present or future infringement, misappropriation or other violation of any Transferred Technology and the goodwill of the Business appurtenant to such Transferred Technology; provided that Seller shall be permitted to keep copies of any Transferred Technology to the extent it constitutes Shared Transferred Technology subject to the terms and conditions of the Intellectual Property License Agreement;
(e) any and all Permits primarily related to the Business (collectively, the “Transferred Permits”);
(f) any and all claims, causes of action, defenses and rights of offset or counterclaims (in any manner arising or existing, whether xxxxxx or inchoate, known or unknown, contingent or non-contingent) at any time to the extent arising out of or related to the Business, the Purchased Assets or the Assumed Liabilities and the right to retain all proceeds and monies therefrom, other than any Retained Claims;
(g) any and all rights under Contracts between Seller or one of its Subsidiaries and any Transferred Business Employee to the extent they restrict the Transferred Business Employee from competing with, or soliciting employees, customers, clients, vendors, and other Persons engaged in a business relationship with, the Business;
(h) true and complete copies of the Business Books and Records; provided that Seller shall be permitted to keep copies of such Business Books and Records to the extent relating to the Retained Business or the Retained Liabilities, or otherwise to the extent reasonably necessary, and only for so long as required, for Seller’s financial reporting purposes;
(i) any and all raw materials, works-in-process, finished goods, supplies and other inventories, including two-factor authentication tokens, to the extent related to, used in or held for use in the Business;
(j) all rights under letters of credit, performance bonds, negotiable instruments and other credit support instruments to the extent third parties provide credit support for any Business Contract or any other Purchased Assets pursuant to the foregoing (collectively, the “Transferred Financial Instruments”);
(k) any and all prepaid assets and deposits to the extent made or paid in respect of any Purchased Assets described in Section 2.4(i) or any tangible assets (including Tangible Personal Property and Information Technology) that become Purchased Assets pursuant to Section 2.4(l) (the “Transferred Prepaid Assets”);
(l) all other assets, Contracts or rights of any kind (including Tangible Personal Property and Information Technology, but excluding owned or leased real property, permits, Intellectual Property Rights (other than any Contracts) and Minority Investments), wherever located, whether personal, or mixed, tangible or intangible, that are owned by Seller or any of its Subsidiaries or to which Seller or any of its Subsidiaries is a party or has a license or other right with respect thereto, and in each case, that are primarily related to or primarily used or held for use in the Business and are not listed on Section 2.5(o) of the Seller Disclosure Letter, and that have been designated as a “Purchased Asset” by Purchaser in writing in its sole discretion prior to the Asset Selection Cut-Off Time; and
(m) any and all assets set forth on Section 2.4(m) of the Seller Disclosure Letter.
Other Assets Purchased Upon receipt of Instructions and except as otherwise provided herein, the Custodian shall pay for and receive other Assets for the account of a Fund as provided in Instructions.
Acquired Assets On the Closing Date, in accordance with this Agreement, Seller and its Subsidiaries shall sell, convey, transfer, assign and deliver to Buyer, free and clear of any and all Encumbrances, and Buyer will purchase, acquire and accept, all of Seller's and its Subsidiaries' respective right, title and interest in and to the following properties, assets and other rights, personal or mixed, tangible or intangible (collectively, the "Acquired Assets"):
(a) The Equipment of Seller and its Subsidiaries listed on Schedule 2.1(a), together with any Equipment transferred to Buyer pursuant to Section 2.4 (c) (the "Acquired Equipment");
(b) The inventory of Seller and its Subsidiaries listed on Schedule 2.1(b) (the "Acquired Inventory");
(c) The Contracts of Seller and its Subsidiaries (including any future claims arising from or related to such contracts) listed on Schedule 2.1(c) hereto and the Backlog related to such Contracts (the "Assumed Contracts");
(d) Copies or originals of all books, records, data (in any media), papers and instruments of whatever nature and wherever located to the extent related to the Acquired Assets;
(e) All licenses, sublicenses and other contract rights held by Seller and its Subsidiaries in connection with the Business listed on Schedule 2.1(e), including all Insituform and NuPipe licenses, sublicenses and rights to use or operate under Insituform or NuPipe patents or trademarks, and intangible or intellectual property rights, including know-how, relating thereto or to the Business (the "Acquired Intellectual Property");
(f) All Permits required solely in connection with the Business in effect as of the Closing Date, to the extent such Permits are transferable (the "Acquired Permits"); and
(g) All rights to the name "Insituform", "Insituform East", "MidSouth" and "insitu" and all derivatives thereof.
Assets Purchased by Assuming Institution With the exception of certain assets expressly excluded in Sections 3.5 and 3.6, the Assuming Institution hereby purchases from the Receiver, and the Receiver hereby sells, assigns, transfers, conveys, and delivers to the Assuming Institution, all right, title, and interest of the Receiver in and to all of the assets (real, personal and mixed, wherever located and however acquired) including all subsidiaries, joint ventures, partnerships, and any and all other business combinations or arrangements, whether active, inactive, dissolved or terminated, of the Failed Bank whether or not reflected on the books of the Failed Bank as of Bank Closing. Assets are purchased hereunder by the Assuming Institution subject to all liabilities for indebtedness collateralized by Liens affecting such Assets to the extent provided in Section 2.1.
Assets Purchased by Assuming Bank With the exception of certain assets expressly excluded in Sections 3.5 and 3.6, the Assuming Bank hereby purchases from the Receiver, and the Receiver hereby sells, assigns, transfers, conveys, and delivers to the Assuming Bank, all right, title, and interest of the Receiver in and to all of the assets (real, personal and mixed, wherever located and however acquired) including all subsidiaries, joint ventures, partnerships, and any and all other business combinations or arrangements, whether active, inactive, dissolved or terminated, of the Failed Bank whether or not reflected on the books of the Failed Bank as of Bank Closing. Schedules 3.1 and 3.1a attached hereto and incorporated herein sets forth certain categories of Assets purchased hereunder. Such schedule is based upon the best information available to the Receiver and may be adjusted as provided in Article VIII. Assets are purchased hereunder by the Assuming Bank subject to all liabilities for indebtedness collateralized by Liens affecting such Assets to the extent provided in Section 2.1. The subsidiaries, joint ventures, partnerships, and any and all other business combinations or arrangements, whether active, inactive, dissolved or terminated being purchased by the Assuming Bank includes, but is not limited to, the entities listed on Schedule 3.1a. Notwithstanding Section 4.8, the Assuming Bank specifically purchases all mortgage servicing rights and obligations of the Failed Bank.
