Purchased Assets. Subject to and upon the terms and conditions set forth herein, at the Closing Seller shall convey, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept all of Seller’s right, title and interest in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation: (a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3; (b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements; (c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”); (d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”); (e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e); (f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”); (g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”); (h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights; (i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i); (j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”); (k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises. (l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable; (m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House; (n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”); (o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and (p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Date.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Ruths Chris Steak House, Inc.), Asset Purchase Agreement (Ruths Chris Steak House, Inc.), Asset Purchase Agreement (Ruths Chris Steak House, Inc.)
Purchased Assets. Subject to and upon Upon the terms and conditions set forth hereinin this Agreement and subject to the conditions hereof and the provisions of Section 1.6, at the Closing Closing, Seller shall conveywill sell, selltransfer, assign, transfer convey and deliver to Purchaser Buyer, and Purchaser shall purchase, acquire Buyer will purchase and accept from Seller, all of Seller’s right, title and interest in of Seller in, to and under the following properties (collectively, the “Purchased Assets”):
(a) subject to Section 1.5, the Land, together with all of Seller’s tangible structures, buildings, improvements, machinery, fixtures, and intangible assets usedequipment affixed or attached to the Land and all easements and rights appurtenant thereto, held for use including: (i) all easements, privileges and rights belonging or in any way relating appurtenant to its Business other than the Excluded Assets Land; and (as hereinafter definedii) any and all air rights, subsurface rights, development rights, and water rights appurtenant to the Land (all of the foregoing being collectively referred to hereinafter collectively herein as the “Seller’s Assets” or “its AssetsOwned Real Property”), including but expressly excluding the Removed Real Property;
(b) all tangible personal property owned by Seller and used in connection with the Owned Real Property as of the date of this Agreement, including, specifically, without limitation:
, all equipment, furniture, tools and supplies (aincluding all construction materials, work-in-process, finished goods, goods in transit, manufactured and purchased supplies and other materials) The rights and benefits accruing to Seller any other personal property as lessee under any immovable (real) property lease and/or sublease relating to is owned by the Seller’s Business existing , whether located on the Owned Real Property or with suppliers or others as of the date of this Agreement through (collectively, the Closing Date, each “Personal Property”);
(c) the Home Sale Contracts as of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “EasementsAssigned Home Sale Contracts”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen ▇▇▇▇▇▇▇ money deposits and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal forms of security (tangible), movable whether or not held in escrow) held or controlled by or for Seller pursuant to the Assigned Home Sale Contracts (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “EquipmentHome Sale Contract Deposits”);
(e) The rights all customer and benefits accruing vendor lists, and business and financial records, books, and documents (including any books and records or documents relating to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangibleTaxes imposed on the Purchased Assets), movable (personal) property to the extent any of the foregoing are related to or used with respect to the Owned Real Property, Personal Property or the Assigned Contracts, including all of Seller’s rights to architectural and engineering plans, subject to applicable fees for the reuse, signing and sealing of such plans, water and sewer, electrical and building plans, and all other plans and specifications, drawings and other similar documents, in each case relating to the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e)Owned Real Property;
(f) All all rights, obligations, and duties of Seller’s inventory Seller arising out of Contracts relating to the construction of Housing Units in connection with Seller’s Business, which as the Ordinary Course or otherwise listed on Section 1.1(f) of the day before Disclosure Schedule (other than those related to Housing Units that have been sold prior to the Closing Date are those items listed and described on Schedule 2.1(f)-1Closing) (collectively, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “InventoryOther Contracts” and, together with the Assigned Home Sale Contracts, the “Assigned Contracts”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of Permits in the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property name of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights and related to computer software, trade secrets the Owned Real Property (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working CashPermits”); and
(ph) All tax credits or rights to credits available to Seller in connection with the operation all of Seller’s Business rights as declarant or similar capacity under CC&Rs with respect to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing DateAssociations.
Appears in 3 contracts
Sources: Asset Purchase Agreement (William Lyon Homes), Asset Purchase Agreement (William Lyon Homes), Asset Purchase Agreement (William Lyon Homes)
Purchased Assets. Subject to and upon the terms and conditions set forth hereinin this Agreement, at the Closing Seller shall convey, Sellers hereby agree to sell, assign, transfer and deliver to Purchaser deliver, and Purchaser shall purchase, acquire hereby agrees to purchase and accept from Sellers, at and as of the Closing Date (as such term is defined below in Section 3.2(a)), all of Seller’s Sellers’ right, title and interest in and to all the following properties, assets and rights existing as of Seller’s tangible and intangible assets usedthe date hereof (collectively, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Purchased Assets”), including without limitation:):
(a) The rights ▇▇▇▇▇-▇▇▇▇▇▇ Mine and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date Golden ▇▇▇▇▇▇ Mill and related real estate and real estate based mining claims (the “Acquired Real Property LeaseProperty”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3);
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvementswater treatment plant;
(c) All rightsurface real estate rights, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to as shown on the benefit of ownership list shown on the Leased Premises, including without limitation those items listed on attached Schedule 2.1(c) (collectively, the “Easements”1.1(c);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located mining claims as shown on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described ownership list shown on the attached Schedule 2.1(d) (collectively, the “Equipment”1.1(c);
(e) The rights all mining permits and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e)water rights;
(f) All all ancillary equipment used in any of Seller’s inventory the foregoing, to include all machinery, fixtures, furniture, equipment, materials, parts, supplies, tools and other tangible property owned or controlled by Seller and/or Covenantors, used in connection with Seller’s Business, which as of the day before Purchased Assets and located on or about the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 Acquired Real Property (the “InventoryPurchased Equipment”) as set forth on the attached Schedule 1.1(f);
(g) Seller’s Business as a going concernall rights under: (i) contracts relating to or creating rights with respect to the Purchased Assets, its Franchise Rightswhether oral or written (the “Contracts”); and (ii) to the extent assignable, all other contracts and agreements, whether oral or written, used by Sellers and/or Covenantors in the operation of the rights Purchased Assets and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed set forth on Schedule 2.1(g), goodwill and other intangible assets (collectively, 1.1(g)(the “Intellectual PropertyContracts”);
(h) All claims all permits, authorizations and rights licenses used by Sellers and/or Covenantors exclusively in the management or operation of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rightsPurchased Assets;
(i) All licensesall books, permitsrecords, consents, use agreements, approvals, authorizations files and certificates of any Governmental Authority papers relating exclusively to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case Purchased Assets created at any time prior to the extent transferable by Closing (as defined in Section 3.3(a) below)by Sellers and/or Covenantors , other than Sellers’ and Covenantors’ respective corporate minute books and related corporate records, and books, records, files and papers not otherwise relating exclusively to the Seller, including without limitation those listed on Schedule 2.1(i)Purchased Assets;
(j) All filesany and all other properties, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, assets and rights of recoupment of Seller (including any such item relating to Sellers and/or Covenantors which are used exclusively in the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits management or rights to credits available to Seller in connection with the operation of Seller’s Business the Purchased Assets not expressly described, listed or referred to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Datein Section 1.2 below.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Standard Gold), Asset Purchase Agreement (Princeton Acquisitions Inc), Asset Purchase Agreement (Wits Basin Precious Minerals Inc)
Purchased Assets. Subject to and upon On the terms and subject to the conditions set forth hereincontained in this Agreement, at on the Closing Date, Buyer shall purchase from Seller, and Seller shall sell, convey, sell, assign, transfer and deliver to Purchaser Buyer by appropriate instruments reasonably satisfactory to Buyer and Purchaser shall purchaseits counsel, acquire free and accept clear of all Liens, all of Seller’s rightthe following assets, title properties, rights, titles and interest in interests of every kind and to all of Seller’s tangible and intangible assets usednature owned, held for use licensed or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned leased by Seller and located on or otherwise used in the Leased Premises, including without limitation those items listed on Schedule 2.1(b) Business (collectively, the “Leasehold Improvements”"Purchased Assets"), but excluding all Excluded Assets:
(i) all prepayments and all architectural plans and mechanical drawings related to prepaid expenses listed on the Leasehold ImprovementsPurchased Assets Schedule;
(cii) All rightall machinery, title equipment, tools, dies, jigs, molds, patterns, furniture, spare parts and interestsupplies, if anycomputers and all related equipment, to easements, servitudes, privileges, rights-of-way telephones and all related equipment and all other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items tangible personal property listed on Schedule 2.1(c) (collectively, the “Easements”)Purchased Assets Schedule;
(diii) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business)rights existing under all purchase orders to purchase or sell goods or products, kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) any such purchase order listed on the "Contracts Schedule" and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of under each other contract listed on the Seller’s right to do or develop business Contracts Schedule and specifically identified as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets contract to be assigned to Buyer (collectively, “Intellectual Property”the "Assigned Contracts");
(hiv) All claims all distribution systems and networks including, without limitation, the right, from and after the Closing Date, to contact and do business with any distributor, broker or sales representative that distributes Seller's products (excluding any rights or obligations under any Distribution Contracts (as defined in Section 2.1(b)(ix) below)) and all rights (but not the obligation) to hire Seller's employees;
(v) all lists and records pertaining to customer accounts (whether past or current), suppliers, distributors, personnel and agents and all other books, ledgers, files, documents, correspondence and business records;
(vi) all claims, deposits, prepayments, warranties, guarantees, refunds, causes of action, rights of recovery, rights of set-off and rights of Seller under recoupment listed on the Purchased Assets Schedule, other than those relating exclusively to Excluded Assets or Excluded Liabilities;
(vii) all agreementsProprietary Rights, contractsincluding, software license agreementswithout limitation, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rightsProprietary Rights Schedule;
(iviii) All licensesall Government Licenses, permitsincluding, consentswithout limitation, use agreements, approvals, authorizations any foreign product registrations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those Government Licenses listed on Schedule 2.1(i)the attached "Licenses Schedule," but excluding any such Government Licenses which are by their terms not transferable;
(jix) All filesall insurance, operating manuals warranty and correspondence pertaining condemnation proceeds received after the date hereof with respect to damage, non-conformance of or loss to the Equipment; Purchased Assets;
(x) all customer rights to receive mail and potential customer lists; mailing lists; other communications addressed to Seller;
(xi) except as provided in Section 2.1(b)(v) below, all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business planscorrespondence, budgetslists, financial statements, creative studies and reports and other printed or written materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(kxii) All all trade accounts receivable as of Seller’s rightthe Closing Date (but excluding any private label accounts receivable), title and interest in and any right such accounts receivable to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options be set forth on a schedule to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used be jointly prepared by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except and Buyer as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant Closing (the “Working Cash”"Purchased Receivables"); and
(pxiii) All tax credits or rights to credits available to Seller in connection with a number of units of each item of individual finished goods inventory set forth on the operation "Estimated Purchased Inventory Schedule" attached hereto as of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing DateDate which is (A) no greater than 110% of the "Estimated Purchase Units" set forth on the "Estimated Purchased Inventory Schedule" attached hereto and (B) not less than one month's supply of each such product (as denoted in the column labeled "Minimum Purchase Units" in the "Estimated Purchased Inventory Schedule"), determined at PDK's unit costs for such inventory (which unit costs are set forth on the "Estimated Purchased Inventory Schedule"); provided that the definitive quantities of such inventory shall be set forth on a schedule to be jointly prepared by Buyer and Seller as of the Closing and provided further, that in no event shall Buyer be obligated to purchase in excess of $1.5 million of inventory pursuant to this Agreement (the "Purchased Inventory").
Appears in 3 contracts
Sources: Asset Purchase Agreement (Futurebiotics Inc), Asset Purchase Agreement (PDK Labs Inc), Asset Purchase Agreement (Futurebiotics Inc)
Purchased Assets. Subject to Section 2.2, the other provisions of this Agreement, and upon the terms and conditions set forth hereinApproval Order, at the Closing Closing, Seller shall sell, convey, sell, assign, transfer and deliver to Purchaser Buyer, and Purchaser Buyer shall purchase, acquire acquire, assume, and accept all of Seller’s right, title title, and interest of Seller in and to all of Seller’s tangible the following assets, property and intangible assets used, held for use or in any way relating to its Business rights (other than the Excluded Assets Assets) which are used in the operation of the Recycling Business as the same shall exist as of the date hereof (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”)collectively, including without limitation:the APurchased Assets@):
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real2.1(a) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real AReal Property Lease”Lease@) which, subject to the requirements of Section 7.1(b) below, shall be assumed by Seller and any assigned to Buyer pursuant to the provisions of Sections 363 and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3365 of the Bankruptcy Code;
(b) All right, title and interest, if any, to leasehold improvements, The fixtures, constructionsmachinery, component parts equipment, fixed assets, leasehold improvements (to the extent owned by Seller) furniture, tools, vehicles, maintenance equipment, computer hardware and other immovable (real) tangible personal property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) and the supplies and other consumables related thereto (collectively, the “Leasehold Improvements”) AEquipment and all architectural plans and mechanical drawings related Fixed Assets@), and, to the Leasehold Improvementsextent transferable, all warranties, if any, express or implied, existing for the benefit of Seller in connection with the Equipment and Fixed Assets;
(c) All right, title and interestSubject to the Consent of the appropriate Governmental Entity, if anynecessary, to easementsthe extent legally transferable or assignable, servitudesthe licenses, privilegespermits, rights-of-way franchises and other real rights authorizations of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items any Governmental Entity listed on Schedule 2.1(c) relating to the Purchased Assets and to the operation of the Business (collectively, the “Easements”APermits@);
(d) All machinery (including without limitation all computer hardware used in connection with Subject to applicable Law, obtaining any necessary Consents, and existing confidentiality obligations, the operation employment contracts, contracts for goods, materials and maintenance of Seller’s Business)services, kitchen purchase orders, contracts and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, suppliescommitments for Inventory, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise contracts and agreements of Seller relating to Seller’s Business, including without limitation those items the Purchased Assets and to the operation of the Business and listed and described on Schedule 2.1(d) (collectively, the “Equipment”AAssumed Contracts@);
(e) The rights inventory, if any, held for sale and benefits accruing owned by Seller located at the property subject to Seller as lessee under any leases and/or subleases for equipmentthe Real Property Lease (collectively, machinery, appliances or other corporeal (tangiblethe AInventory@), movable (personal) property used and all warranties, if any, express or implied, existing for the benefit of Seller in connection with the operation of its Business (each an “Equipment Lease” and collectively Inventory, to the “Equipment Leases”), each of which is listed on Schedule 2.1(e)extent transferable;
(f) All of Seller’s inventory in connection with Seller’s BusinessSubject to applicable Law, which as of the day before the Closing Date are those items listed obtaining any necessary Consents, and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectivelyexisting confidentiality obligations, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgersfiles or papers of Seller, fileswhether in hard copy or electronic format, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business Purchased Assets or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s the Business and located at the property leased pursuant to the extent transferable Real Property Lease and at Seller=s Paterson facility (the APaterson Site@), including engineering information, sales and promotional literature, manuals and data, sales and purchase correspondence, customer lists, vendor lists, catalogs, databases, research material, technical information, trade secrets, technology, know-how, specifications, designs, drawings, processes and quality control data, if any; provided, however, Seller shall be permitted to Purchaser but excluding keep and maintain copies of any tip credits books, records, files or income tax credits usable by papers which are necessary or desirable to document, support or further the Seller=s accounting, legal or Tax claims and Seller up shall be permitted to keep the Closing Date.originals of any books, records, files or papers which are necessary or desirable to document, support or further the Seller=s sale or liquidation of its assets at the Paterson Site;
Appears in 2 contracts
Purchased Assets. Subject to and upon At the Closing, on the terms and subject to the conditions set forth hereinof this Agreement, at the Closing Seller shall sell, transfer, convey, sell, assign, transfer assign and deliver to Purchaser Buyer, and Purchaser Buyer shall purchasepurchase and acquire from Seller, acquire free and accept clear of all Encumbrances (other than the Permitted Encumbrances), all of Seller’s 's right, title and interest in and to all of Seller’s tangible the assets specifically described in this Section 2.1 and intangible any other assets used, used primarily in or held for use or primarily in any way relating to its Business the Business, other than the Excluded Assets (as hereinafter definedcollectively, the "Purchased Assets") (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation:
(a) The rights All FF&E and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to all design tools, order management and other management tools, manufacturing tools and test equipment, including laboratory testing equipment, owned by Seller’s Business existing on , whether located at Seller's facilities or the date facilities of this Agreement through the Closing Datea third party, each of which is listed set forth on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-32.1(a);
(b) All rightof the Inventory as of the Closing Date, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and whether located on at Seller's facilities or the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvementsfacilities of a third party;
(c) All rightSubject to Sections 2.2 and 5.13, title and interestall Contracts, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c), and any Contracts entered into between the date hereof and the Closing Date that are identified in a supplement to Schedule 2.1(c) delivered to Buyer at least five (collectively5) days before Closing; provided Buyer shall have the right on or prior to the Closing Date, the “Easements”by written notice to Seller, to decline to accept an assignment and assumption of any Contracts included on such supplemental Schedule 2.1(c), and all rights and claims against others under such Contracts;
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, suppliespatents, and other corporeal all trademarks and service marks (tangible), movable (personalwhether registered or unregistered) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described all Proprietary Information and Intellectual Property set forth on Schedule 2.1(d) (collectively, the “Equipment”)hereto;
(e) The Accounts Receivable and notes receivable and unbilled rights and benefits accruing to payment in favor of Seller with respect to the Business, as lessee under any leases and/or subleases for equipmentof the Closing Date, machinerywhether current or noncurrent, appliances or other corporeal (tangible), movable (personal) property used in but excluding the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e)Excluded Medicare Receivables;
(f) All of Seller’s inventory in connection with Seller’s Business, which Seller Advance Payments as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”)Date;
(g) Seller’s Business All Seller Customer Deposits as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”)Closing Date;
(h) All claims Books and rights Records of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its the extent they are related to the Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates Permits of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed Seller set forth on Schedule 2.1(i), but only to the extent that their transfer is permitted by applicable Law;
(j) All filesguarantees, operating manuals warranties, indemnities and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies similar rights in favor of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating Seller with respect to the Business or reasonably related any of the Purchased Assets, including rights in respect of unemployment accounts and rights to recovery under insurance policies to the Business (collectively, extent the “Books and Records”)casualty occurred prior to the Closing;
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recoveryrecovery and rights of set-off of any kind relating to the Purchased Assets or Assumed Liabilities, warranties and guarantees against any person, including without limitation any liens, security interests, pledges or other rights to payment or to enforce payment in connection with products delivered by Seller on or prior to the Closing Date, except with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”)Excluded Medicare Receivables;
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(pl) All tax credits telephone and facsimile numbers and post office boxes, lockboxes, internet domain names or rights to credits available to URLs, used by Seller in connection with the operation Business listed on Schedule 2.1(l);
(m) All content primarily related to the Business with respect to internet websites of Seller’s Business , including such content in its electronic form; and
(n) All other intangible personal property of Seller primarily related to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to Business and all goodwill of the Closing DateBusiness.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Dj Orthopedics Inc), Asset Purchase Agreement (Orthologic Corp)
Purchased Assets. Subject to and upon the terms and conditions set forth herein, at the Closing Seller shall convey, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept The Purchased Assets are all of Seller’s rightthe assets of Seller used in the Business, title and interest in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitationincluding:
(a) The All of the billboard displays and other out-of-home advertising structures (including rights to walls), including, without limitation, those set forth and benefits accruing to Seller as lessee under any immovable (realdescribed in Schedule 2.2(a) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1attached hereto, together with all components, fixtures, parts, appurtenances, and equipment attached to or made a part thereof that are existing, under construction or for which Seller has any leases which may be executed on rights (collectively, the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3"Structures");
(b) All rightleases, title licenses, easements, other rights of ingress or egress, and interestall other grants of the right to place, if anyconstruct, to leasehold improvementsown, fixturesoperate or maintain the Structures on land, constructions, component parts buildings and other immovable (real) real property owned by Seller third parties, and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) all rights therein (collectively, the “Leasehold Improvements”) "Site Leases"), including, without limitation, those Site Leases listed on Schedule 2.2(b); and all architectural plans state and mechanical drawings related local licenses or permits/tags which Seller has with respect to the Leasehold ImprovementsStructures and, to the extent assignable, all other Governmental Authorizations that are required for the operation of the Structures, (collectively, the "Permits"), including, without limitation, those Permits listed on Schedule 2.2(b);
(c) All rightrights under existing and pending sales and advertising contracts associated with the Structures, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real all rights of Seller pertaining to or accruing to the benefit advertising copy displayed on the Structures as of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) Closing Date (collectively, the “Easements”"Advertising Contracts"), including, without limitation, those Advertising Contracts listed on Schedule 2.2(a) attached hereto;
(d) All machinery pertinent Books and Records;
(including without limitation all computer hardware e) All Intangible Property used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on Business except the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);trade name "Reyn▇▇▇▇"; ▇nd
(f) All rights (including any benefits arising therefrom), causes of Seller’s inventory in connection with Seller’s Businessaction, which as claims and demands of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be whatever nature (whether or not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(gliquidated) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its businessrelating to the Purchased Assets, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) condemnation rights and trade names (whether acquired from Purchaserproceeds, an Affiliated franchisor or otherwise), (including without limitation and all rights against suppliers under warranties covering any of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant)Purchased Assets. Notwithstanding the foregoing, including without limitation the trade names Purchased Assets shall not include the assets listed on Schedule 2.1(g), goodwill and other intangible assets 2.2(x) (collectively, “Intellectual Property”"Excluded Assets");
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Date.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Outdoor Systems Inc), Asset Purchase Agreement (Outdoor Systems Inc)
Purchased Assets. Subject to and upon Upon the terms and subject to the conditions set forth hereinof this Agreement, at on the Closing Date, Parent and Seller shall conveysell, selltransfer, assign, transfer convey and deliver to Purchaser Buyer, and Purchaser Buyer shall purchasepurchase from Parent and Seller, acquire on a going concern basis, free and accept clear of all Encumbrances (except for Permitted Encumbrances), the assets and properties of Seller’s Seller wherever located, real, personal or mixed, tangible or intangible, other than Excluded Assets, as the same shall exist on the Closing Date (herein collectively called the "Purchased Assets"), including, without limitation, all right, title and interest in of Parent and Seller in, to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitationunder:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing all of the assets, other than Excluded Assets, reflected on the date Balance Sheet, except those disposed of this Agreement through after the Closing Date, each Balance Sheet Date in the ordinary course of which is listed on Schedule 2.1(a)-1, together business consistent with any leases which may be executed on the immovable past practice (real) property listed on Schedule 2.1(a)-2 or any opportunities including with respect to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) quantity and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3frequency);
(b) All rightall notes, title accounts receivable and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by unbilled client work in process of Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold ImprovementsClosing Date;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other the real rights of Seller pertaining to or accruing to estate leases (the benefit of the Leased Premises, including without limitation those items "Leases") listed on Schedule 2.1(c) (collectivelyand all leasehold interests created thereby, all leasehold improvements, fixtures and fittings owned or held by Seller under the “Easements”)Leases, and all easements, rights of way and other appurtenants under the Leases;
(d) All machinery (including without limitation all computer hardware the inventories, equipment, vehicles, furniture and other tangible personal property owned or used by Seller primarily in connection with the operation Business and maintenance the tangible personal property of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items Parent listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights all Intellectual Property owned or used by Seller primarily in connection with the Business and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e)goodwill associated therewith;
(f) All of the contracts, agreements or understandings, written or oral, entered into by Seller’s inventory in connection with Seller’s Business, which as of including all equipment leases, work orders, client engagement letters and other agreements or arrangements relating primarily to the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 Business (the “Inventory”"Seller Agreements");
(g) all of Seller’s Business as a going concern, its Franchise Rights's deposits under the Leases (including deposits from subtenants), all of the Seller's rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marksset-off, rights of recovery and claims or causes of action against third parties relating to computer softwarethe assets, trade secrets (includingproperties, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor business or otherwise), (including without limitation all operations of the Seller’s right Business arising out of transactions occurring prior to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurantthe Closing Date (except for refunds of Taxes to the extent provided in Section 2.2(d), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statementscorrespondence, creative materials, advertising and promotional materials, corporate policy documentsstudies, architectural plansreports, mechanical drawingsbooks and records of Seller (including all data and other information stored on discs, parking planstapes or other media), menuscustomer lists, training manualscustomer or credit data, recipescomputer programs, recipe manuals, and/or any other corporate manuals relating to its Businesssoftware, and any correspondence relating hardware owned or used by Seller primarily in connection with the Business; and
(i) all securities (such as the capital stock in the Subsidiaries), corporate minute books, stock transfer books and corporate seals of the Subsidiaries in the possession of Parent;
(j) to the Business or reasonably related extent transferable to Buyer, all franchises, approvals, permits, licenses, orders, registrations, certificates, variances and similar rights obtained by Seller from a Governmental Body (the Business (collectively, the “Books and Records”"Transferred Permits");
(k) All all rights of Seller’s rightParent and Seller under all employment, title consulting and interest in noncompete agreements with, and any right all relationships of Seller with, the employees listed on Schedule 2.1 (k), except to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options extent terminated pursuant to lease adjacent property or options to purchase the leased premises.Termination Agreements;
(l) All of Seller’s right, title and interest all general intangibles used primarily in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c)including without limitation, all claims, security good will as a going concern and other deposits, prepayments, prepaid expenses, refunds, any all causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment action or claims of Seller (including against any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits Person that arose or rights to credits available to Seller will arise primarily in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up prior to the Closing Date, other than Excluded Employee Claims and causes of action or claims against Parent, Seller or any of their officers, directors, employees or agents or causes of action or claims as to which Parent, Seller or their Affiliates may be required to provide indemnification. (m) cash in amount equal to $100,000.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Lecg Corp), Asset Purchase Agreement (Lecg Corp)
Purchased Assets. Subject to and upon the terms and conditions set forth hereinin this Agreement, at the Closing Seller shall Buyer hereby agrees to purchase from Sellers, and Sellers hereby agree to sell, convey, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchaseBuyer, acquire and accept all of Seller’s Sellers’ right, title and interest on the Closing Date in and to all of Seller’s the tangible and intangible assets usedassets, held for use or in any way relating to its Business properties and rights of every kind and nature and wherever located (other than the Excluded Assets Assets) owned by the Sellers and relating to the operation of the Digester Business (as hereinafter defined) (referred to hereinafter collectively as collectively, the “Seller’s Assets” or “its Purchased Assets”), including which shall include, without limitation:
(a) The rights all inventory, finished goods, raw materials, work in progress, packaging, supplies, parts and benefits accruing to Seller other inventories, used or usable by the Business as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights assignable or transferable associated warranties and Franchise Agreements listed on Schedule 2.1(a)-3service agreements or rights related thereto;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on all goodwill of the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold ImprovementsDigester Business;
(c) All rightthe customer Contracts, title and interestvendor Contracts, if anysupplier Contracts, to easementstechnology license agreements, servitudes, privileges, rights-of-way and other real rights Contracts of Seller pertaining to or accruing to any kind used in operating the benefit of the Leased Premises, including without limitation those items listed Digester Business as set forth on Schedule 2.1(c) (collectively, the “EasementsPurchased Contracts”);
(d) All machinery all general intangibles used in the Digester Business including, without limitation, transferable warranties, and all Intellectual Property;
(e) the software (including without limitation source code and object code), databases and technology used in operating the Digester Business and all computer hardware used related technology, database scheme and transactional code, trade secrets, know-how, formulae, data, specifications, protocols, drawings, designs and all other confidential, non-confidential, or proprietary information related to the operation of the Digester Business, in each of the foregoing cases as listed on Schedule 2.1(e) hereto ;
(f) the current and active records, files and papers of Sellers pertaining to the Purchased Assets and the Digester Business, including all current and active customer and client lists;
(g) the prepaid and deferred items or credits and deposits, rights of offset and credits and claims for refund generated or incurred by or in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before Digester Business prior to the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);; and
(h) All claims the permits and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or licenses solely relating to its Business, including without limitation those the operation of the Digester Business listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned ContractsPermits”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority only to the extent they relate to Seller’s Business (collectively, the “Licenses”), transferrable in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premisesaccordance with applicable Law.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Date.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Renovare Environmental, Inc.), Asset Purchase Agreement (Traqiq, Inc.)
Purchased Assets. Subject to and upon the terms and conditions set forth hereinof this Agreement, at on the Closing Seller shall convey, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept all of Seller’s right, title and interest in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets Date (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”defined below), including without limitationSeller will sell to Buyer, and Buyer will purchase from Seller, the assets of Seller listed below (collectively, the "Purchased Assets"). The Purchased Assets will be purchased free and clear of all security interests, liens, restrictions, claims, encumbrances or charges of any kind ("Encumbrances"), except as provided herein. The Purchased Assets will include the following items:
(a) The rights All equipment, furniture and benefits accruing to other personal property of Seller used in the Businesses as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on set forth in the date of this Agreement through the Closing Date, each of which is listed on attached Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-31.1(a);
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) The personal property owned by leases of Seller and located on used in the Leased Premises, including without limitation those items listed on Business as set forth in the attached Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements1.1(b);
(c) All rightThe client accounts, title agreements, understandings and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights contracts of Seller pertaining to or accruing to used in the benefit of Business as set forth in the Leased Premises, including without limitation those items listed on attached Schedule 2.1(c1.1(c) (collectively, the “EasementsAssumed Contracts”);
(d) All machinery (trademarks and trademark applications, and all patents and patent applications, including without limitation specifically those set forth in attached Schedule 1.1(d), all goodwill associated therewith, and all computer hardware software developed by Seller, including all documentation thereof and all other Intellectual Property (as defined in Section 3.5) of Seller, and all rights to use the name “Express Employment Agency” and “Express Staffing Services”.
(e) All marketing or promotional designs, brochures, advertisements, concepts, literature, books, media rights, rights against any other person in respect of any of the foregoing and all other promotional properties, in each case primarily used or useful or developed or acquired by the Seller for use in connection with the operation ownership and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its the Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);Purchased Assets
(f) All of Seller’s inventory in connection with Seller’s other intangible assets, including without limitation all supplier lists, customer lists, goodwill, "know-how," proprietary information and trade secrets relating to the Business, which as of ; and all manufacturers' warranties (including pending warranty claims) and manuals relating to the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”)Purchased Assets;
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all All of the Seller’s right to do or develop business 's lease deposits on leases assumed by Buyer as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on set forth in attached Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”1.1(g);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or permits relating to its the operation of the Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” to the extent such permits are transferable and collectively whether or not all action necessary to effect such transfer has been taken prior to the “Assigned Contracts”) and all accrued or prepaid advertising rightsClosing;
(i) All licensesreal property leases of Seller, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectivelysuch are assignable, the “Licenses”as set forth in Schedule 1.1(i), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All filestelephone and facsimile machine numbers assigned to Seller, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Businessincluding without limitation telephone book listings, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”all goodwill associated therewith as set forth in attached Schedule 1.1(j);
(k) All Except as expressly set forth in Section 1.3, all papers, documents, computerized databases, books and records (including all data stored on discs, tapes or other media) of Seller’s right, title Seller related to the Purchased Assets and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may haveBusiness operations, including but not limited options without limitation all software design documents, source code, employer records and workers’ compensation records relating to lease adjacent property or options to purchase employees hired by the leased premises.Buyer, sales records, marketing records, accounting and financial records, and maintenance and production records as set forth in attached Schedule 1.1(k); and
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in rights of recovery and rights of setoff of every type and kind relating to the Purchased Assets and all claims, causes of action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, recovery and rights of recoupment setoff of Seller (including any such item every type and kind relating to the payment Assumed Obligations (as defined in Section 1.2), in each case whether accruing before or after the Closing; provided, however, that the definition of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which Purchased Assets shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller not include any items defined as Excluded Assets in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing DateSection 1.3.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Infe Human Resources Inc), Asset Purchase Agreement (Infe Human Resources Inc)
Purchased Assets. Subject to and upon Upon the terms and subject to the conditions set forth hereinof this Agreement, at the Closing Closing, Seller shall conveysell, selltransfer, assign, transfer convey and deliver to Purchaser Buyer, and Purchaser Buyer shall purchasepurchase from Seller, acquire free and accept clear of all Liens other than Permitted Liens, all of Seller’s the right, title and interest that Seller possesses in and to all of Seller’s tangible the following assets and intangible assets usedproperties (collectively, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Purchased Assets”), including without limitation:):
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on leasehold interest in the date of this Agreement through the Closing Date, each of which is listed Leased Manufacturing Equipment (as more particularly described on Schedule 2.1(a)-12.1(a), together with any leases which may shall be executed on updated by the immovable Parties within three (real3) property listed on Schedule 2.1(a)-2 or any opportunities Business Days prior to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”Closing) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3the Leased Real Property, pursuant to the Lease Agreement;
(b) All rightall tangible personal property, title including computer hardware, manufacturing equipment, office equipment, accessories, machinery, furniture, and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property fixtures owned by Seller and located on at the Leased PremisesManufacturing Facility (collectively, including without limitation those items listed the “Owned Personal Property”), as more particularly set forth on Schedule 2.1(b) (collectively, which shall be updated by the “Leasehold Improvements”Parties within three (3) and all architectural plans and mechanical drawings related Business Days prior to the Leasehold ImprovementsClosing);
(c) All right, title all of Seller’s inventories and interest, if any, to easements, servitudes, privileges, rights-of-way supplies located at the Manufacturing Facility on the Closing Date other than the raw materials and other real product inventory for 503B products;
(d) all of Seller’s rights of Seller pertaining to or accruing to under the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) Contracts (collectively, the “EasementsAssigned Contracts”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described identified on Schedule 2.1(d) (collectivelywhich shall be updated by the Parties within three (3) Business Days prior to the Closing), subject to the “Equipment”provisions of Section 2.4(c));
(e) The all of Seller’s rights relating to deposits and benefits accruing prepayments with respect to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances purchase orders or other corporeal (tangible), movable (personal) property used Contracts included in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”)Assigned Contracts, each of which is listed as more particularly set forth on Schedule 2.1(e) (which shall be updated by the Parties within three (3) Business Days prior to the Closing);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Facility Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbersAuthorizations, to the extent assignable;
(mg) All domain names, websites all warranties (express and other intellectual property of any kind or nature used by Seller implied) that continue in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees effect with respect to the Manufacturing Facility or any Purchased Assets Asset (including including, without limitation the Inventorylimitation, warranties provided for under any Assigned Contract), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”)extent assignable; and
(ph) All tax credits originals, or rights to credits available to Seller in connection with the operation where not available, copies, of material documents and records of Seller, in Seller’s Business possession or control, relating specifically and solely to the extent transferable to Purchaser but excluding any tip credits Manufacturing Facility, the Purchased Assets, or income tax credits usable by Seller up to the Closing DateAssigned Contracts (the “Facility Records”).
Appears in 2 contracts
Sources: Purchase Agreement (Athenex, Inc.), Purchase Agreement (ImmunityBio, Inc.)
Purchased Assets. Subject to and upon the terms and conditions set forth hereinof this Agreement, at the Closing Buyer hereby agrees to purchase from Seller, and Seller shall convey, hereby agrees to sell, assign, transfer and deliver assign to Purchaser Buyer, free and Purchaser shall purchaseclear of any and all Liens and Encumbrances (as hereinafter defined), acquire and accept all of Seller’s 's right, title and interest in and to all assets that are related to, used in the operation of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than have been generated by the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) Purchased Restaurants (collectively, the “Leasehold Improvements”"Purchased Assets") and all architectural plans and mechanical drawings related to including, but not limited to, the Leasehold Improvements;following:
(c) 1.1 All rightof the equipment, title and interestfurniture, if anyfixtures, to easementstrade fixtures, servitudessigns, privilegessign poles, rights-of-way machinery, kitchen equipment, computers, cash registers, menus, uniforms, small equipment, small wares and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware tangible personal property used in connection with the operation of the Purchased Restaurants, wherever located and maintenance owned by Seller on the Closing Date, including, without limitation, those assets identified on Schedule 1.1 attached hereto (the "Fixed Assets");
1.2 All inventory of Seller’s BusinessSeller purchased for use in connection with the Purchased Restaurants, wherever located and owned by Seller on the Closing Date (the "Inventory"), kitchen and other appliancesincluding, equipmentwithout limitation, furniturethe Inventory identified on Schedule 1.2 hereto;
1.3 All of the agreements relating to the Purchased Restaurants under which Seller owns or holds any leasehold interest in real property (each, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangiblea "Real Property Lease"), movable including any buildings and improvements thereon, or leases in personal property, whether tangible or intangible (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(deach a "Personal Property Lease") (collectively, the “Equipment”"Leases"), a true and complete list of which is set forth in Schedule 1.3 hereto;
1.4 All of the agreements, contracts, licenses, instruments, commitments and understandings, written or oral, that (in addition to the Leases) are related solely to the Purchased Restaurants and listed (or, in the case of oral agreements or understandings, that are described) under the caption "Assigned Contracts" in Schedule 1.4 attached hereto (collectively, the "Assigned Contracts");
(e) The 1.5 All rights in and benefits accruing to Seller as lessee under any leases and/or subleases for equipmentgovernmental and private permits, machinerylicenses, appliances or other corporeal (tangible)certificates of occupancy, movable (personal) property franchises and authorizations, to the extent assignable, used in or relating to the operation of its Business Purchased Restaurants;
1.6 (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(eintentionally omitted);
(f) 1.7 All of Seller’s inventory in connection with Seller’s Businessfinancial books and accounting records, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1all files, which shall be not less than the minimum inventory levels as listed lists, publications, and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights other records and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller data used in connection with its businessor relating to the Purchased Restaurants, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) lists of suppliers and trade names (whether acquired from Purchaserdistributors and related files, an Affiliated franchisor or otherwise)environmental records, (including without limitation all price lists, marketing plans, sales records, labor relations and employee compensation records, and maintenance records, regardless of the Seller’s right to do medium on which such information is stored or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”)maintained;
1.8 All cash on hand at the Purchased Restaurants as of the Closing Date (h"Cash and Equivalents") All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House1.8 hereto;
(n) Except as provided in Section 2.2(c), all claims, security 1.9 All prepaid fees and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties deposits associated with the Leases and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller utilities used in connection with the operation Purchased Restaurants ("Prepaid Fees and Deposits"), which are set forth in Schedule 1.9 attached hereto;
1.10 Any cause of Seller’s Business action, claim, suit, proceeding, judgment or demand, of whatsoever nature, of or held by Seller against any third parties arising out of the Purchased Assets or the Purchased Restaurants prior to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to date hereof;
1.11 All goodwill associated with the Closing DatePurchased Restaurants and the Purchased Assets.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Staceys Buffet Inc), Asset Purchase Agreement (Star Buffet Inc)
Purchased Assets. Subject to and upon On the terms and subject to the conditions set forth hereinin this Agreement, at the Closing Buyer shall purchase from Seller, and Seller shall sell, convey, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchaseBuyer, acquire and accept as of the Closing Date, all of Seller’s rightrights in all assets, title properties, rights, titles and interest interests of every kind and nature, used in and to all or a part of Seller’s Table Games Business, whether tangible or intangible, real or personal and intangible assets usedwherever located and by whomever possessed, held for use or set forth below in any way relating to its Business other than the Excluded Assets subsection (as hereinafter definedi) through (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(bxv) (collectively, the “Leasehold ImprovementsPurchased Assets”), free and clear of all Liens as follows:
(i) and all architectural plans and mechanical drawings related to Inventory used in or a part of Seller’s Table Games Business, in each case as set forth in the Leasehold ImprovementsInventory Schedule;
(cii) All rightthe Purchased Table Games Intellectual Property, title and interestas listed in the Table Games Intellectual Property Schedule, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance or a part of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Table Games Business, including without limitation those items listed together with all income, royalties, damages and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances payments due or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which payable as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets thereafter (including, without limitation, recipes) damages and trade names (whether acquired from Purchaser, an Affiliated franchisor payments for past or otherwisefuture infringements or misappropriations thereof), the right to ▇▇▇ 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 Purchased Table Games Intellectual Property;
(iii) all Rights used in or a part of Seller’s Table Games Business;
(iv) all Equipment or other fixed assets (collectively “Fixed Assets”) used in or a part of Seller’s Table Games Business, as set forth on the Equipment and Fixed Assets Schedule;
(v) each Purchased Table Game and the physical embodiment of such Purchased Table Game, including without limitation all contract, tangible and intangible Rights relating thereto, and any Reversionary Rights, in all cases, other than any System;
(vi) those Purchased Table Games leased or licensed and installed (the “Existing Installed Base”), as of the Closing Date, in a Legal Gaming Venue, the majority of which are listed on the Existing Installed Base Schedule, which includes all of the Seller’s Table Games installed in the State of Washington which existed as of September 1, 2007; and all revenues derived or due therefrom, as of and after the Closing Date;
(vii) the right to do receive and retain mail, and other communications to the extent relating to Seller’s Table Games Business (other than those that are Excluded Assets or develop business as a ▇▇▇▇’▇ ▇Excluded Liabilities);
(viii) the right to ▇▇▇▇ Steak House restaurant)and receive payment for products shipped or delivered and/or services performed in the operation of Seller’s Table Games Business but unbilled or unpaid, including without limitation as of the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”)Effective Date;
(hix) All claims the right to ▇▇▇▇ and rights receive payment for any Existing Installed Base, as of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rightsEffective Date;
(ix) All licensesall lists, permitsrecords and other information pertaining to accounts, consentsand referral sources; all lists, use agreementsinvoices, approvalsrecords and other information pertaining to suppliers and customers; Seller’s Table Games Intellectual Property files, authorizations attorney correspondence, and certificates of any Governmental Authority prosecution file histories, provided, however, for same that are related to the extent they Licensed Patents, Seller may retain originals and provide Buyer with copies; all drawings, reports, studies, plans, books, ledgers, files and business and accounting records of every kind (including all financial, business, sales and marketing plans and information related to Seller’s Table Games Business); all illustrator files for training manuals, game manuals, how to play cards, math files, felt designs, pay table signs, product sheets, any marketing materials, and any other items depicted in illustrator files; in each case that relate to Seller’s Table Games Business (collectivelyand regardless of whether such items are evidenced in writing, the “Licenses”)electronic data, in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i)computer software or otherwise;
(jxi) All filesall advertising, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising marketing and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any all archival materials and all other corporate manuals printed or written materials to the extent relating to its Seller’s Table Games Business;
(xii) all Gaming Product Approvals applicable solely to the Purchased Table Games (and not the Excluded Assets). (the items in Sections 2.1(a)(ix), 2.1(a)(xi), and any correspondence relating 2.1(a)(xii) are collectively referred to the Business or reasonably related to the Business (collectively, the as “Table Games Books and Records”);
(kxiii) All of Seller’s rightAquarius and Game Manager and all prior, title current and interest in future versions and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignableenhancements thereof;
(mxiv) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related subject to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c2.2(a), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”)Assumed Contracts; and
(pxv) All tax credits or rights to credits available to Seller all Pending Orders, as defined in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing DateSection 4.10(j).
Appears in 2 contracts
Sources: Purchase Agreement (Progressive Gaming International Corp), Purchase Agreement (Shuffle Master Inc)
Purchased Assets. Subject to and upon Upon the terms and subject to the conditions set forth hereinin this Agreement and excluding the Excluded Assets, at the Closing Seller shall conveyhereby sells, sellconveys, assignassigns, transfer transfers and deliver delivers to Purchaser Buyer, and Purchaser shall purchaseBuyer hereby purchases and accepts from Seller, acquire free and accept clear of all Liens, all of Seller’s right, title and interest in and to all of Seller’s property, assets and rights, including all such assets that are used in or are useful to Seller’s business of developing, designing, manufacturing, selling and distributing oil change systems, fuel and oil transfer pumps, fuel primers, fuel polishing systems and engine flushing systems (the “Business”), tangible and intangible assets usedintangible, held for use or in any way relating to its Business other than of every kind and description, wherever located (the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Purchased Assets”). The Purchased Assets include the assets described below and in the ▇▇▇▇ of sale and assignment of rights delivered by Seller in connection with this Agreement (the “▇▇▇▇ of Sale”) but exclude the Excluded Assets. The purchase and acceptance of the Purchased Assets does not include the assumption of any Liability of Seller unless expressly assumed by Buyer pursuant to Section 2.3. Without limiting the foregoing, including without limitation:
the Purchased Assets shall include the following: (a) The all accounts receivable and all notes and other evidences of indebtedness in favor of Seller and rights to receive payments arising out of products sold and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date services rendered (the “Real Property LeaseAccounts Receivable”); (b) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premisesinventory of Seller, including without limitation those items listed on Schedule 2.1(b) (collectivelyraw materials, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All rightsamples, title and interestwork-in-progress inventory, if anyprepaid inventory, to easementsaccessories, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table clothssupplies, spare parts, toolsfinished goods and ▇▇▇▇ of material expense items (including shipping containers, supplies, labels and other corporeal (tangiblepackaging materials), movable (personal) property located on whether in the Leased Premises possession of Seller or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing in transit to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
; (gc) Seller’s Business as a going concern, its Franchise Rights, all Intellectual Property Rights owned by Seller and used or held for use by Seller in the operation of the rights Business (the “Intellectual Property Assets”); (d) all Contracts set forth on Schedule 2.1(d) (collectively the “Assumed Contracts”); (e) (i) all licenses, permits, registrations, certificates of occupancy, Consents and benefits certificates from any Governmental Authority (but not its obligations collectively, “Permits”) issued, to Seller, and (ii) all certificates, registrations, accreditations, qualifications and approvals of any independent or liabilitiesaccreditation body (collectively, “Certifications”) under its Franchise Agreementsissued to Seller; (f) all machinery, all intellectual equipment, furniture, furnishings, molds, fixtures, tools, dies, vessels, vehicles, computers and other tangible personal property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets Seller’s conduct of the Business; (including, without limitation, recipesg) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right books and records of Seller related to do the Purchased Assets or develop the Business, including business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurantrecords, files, research material, tangible data, documents, payroll and personnel records with respect to the Transferred Employees (to the extent permitted by Law), including without limitation the trade names listed on Schedule 2.1(g)invoices, goodwill customer lists, vendor lists and other intangible assets (collectivelyservice provider lists, “Intellectual Property”);
whether in written or electronic form; (h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) any and all accrued or prepaid advertising rights;
goodwill of Seller; and (i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates all other assets of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), Seller used in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies its operation of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, unless included in the “Books and Records”Excluded Assets);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Date.
Appears in 2 contracts
Sources: Asset Purchase Agreement (CRAWFORD UNITED Corp), Asset Purchase Agreement (CRAWFORD UNITED Corp)
Purchased Assets. Subject Pursuant to and upon the terms and subject to the conditions set forth hereinof this Agreement, at on the Closing Date (as defined in Section 1.4 below), Seller shall convey, will sell, assign, convey, transfer and deliver to Purchaser Purchaser, and Purchaser shall purchasewill purchase and acquire from Seller, acquire and accept all of Seller’s 's right, title and interest in in, to and to all under the following assets, properties and rights which are owned or leased by Seller (collectively, the "Assets"):
i. All software source code, web sites, customer databases, raw materials, work-in-progress, finished goods and inventory of Seller’s tangible , including, without limitation, all raw materials, work-in-process supplies and intangible assets usedinventory located in Seller's warehouses, held for use distribution centers, in transit or otherwise (the "Purchased Inventory");
ii. All accounts receivable (the "Purchased Receivables");
iii. All fixed assets, including, without limitation, machinery and equipment and other attachments owned by Seller, spare parts, supplies, furniture and fixtures, computer equipment and software and other personal property owned by Seller;
iv. All rights of Seller under and in any way relating to its Business connection with the leases and subleases of real property, together with Seller's interest in all buildings, facilities, fixtures and other improvements thereon and all easements, rights-of-way, transferable licenses and permits and other appurtenances thereto which are set forth on Schedule 1.1(a)(iv) (collectively, the "Assigned Leases");
v. All transferable rights of Seller under and in connection with the contracts, commitments, purchase orders, agreements and unexpired leases (other than the Excluded Assets (as hereinafter definedAssigned Leases), which are set forth on Schedule 1.1(a)(v) (referred collectively, the "Assigned Contracts");
vi. All rights to hereinafter collectively as “Seller’s Assets” the trade secrets, processes and methods, whether or “its Assets”not patentable, owned by Sellers (the "Purchased Intellectual Property");
vii. All transferable federal, state or local or other governmental and other third party permits (including occupancy permits), including without limitation:certificates, licenses, consents, authorizations, approvals, registrations or franchises necessary or useful in the operation by Seller of its business (collectively, the "Assigned Permits"); and
(a) The rights viii. All books and benefits accruing to records maintained by Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) product manuals, operating manuals, and records relating to customer and trade names (accounts and lists and similar operating data, whether acquired from Purchaserin electronic, an Affiliated franchisor computer, paper or otherwise)other form, (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) books and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, records which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights Seller is required by law to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Dateretain.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Modern Technology Corp), Asset Purchase Agreement (Modern Technology Corp)
Purchased Assets. Subject to and upon the terms and conditions set forth hereinof this Agreement, at the Closing (as defined in Section 2.1 hereof), Seller shall agrees upon payment by Buyer to Seller of the Purchase Price in accordance with Section 1.5, to sell, convey, selltransfer, assign, transfer assign and deliver to Purchaser Buyer or cause to be sold, transferred, and Purchaser shall purchaseassigned to Buyer, acquire and accept Buyer agrees to purchase and acquire, the Hospital Facilities and all of Seller’s right, title and interest in and to all of Seller’s the tangible and intangible assets usedof Seller associated therewith, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) ), which assets shall include, without limitation, the following (referred to hereinafter collectively as the “Seller’s Assets” or “its Purchased Assets”), including without limitation:):
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) the real property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed described on Schedule 2.1(a)-11.1(a) of the Seller Disclosure Letter, together with all improvements, any leases which may be executed on the immovable construction in progress, any other buildings and fixtures thereon, and all rights, privileges and easements appurtenant thereto (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (collectively, the “Real Property LeaseProperty”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3);
(b) All rightthe tangible personal property, title and interestincluding, if anywithout limitation, to leasehold improvementsall major, fixtures, constructions, component parts and minor or other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliancesmachinery, equipment, furniture, vehicles, smallwaresfurniture and furnishings, utensils, glassware, table cloths, spare parts, tools, supplies, the current list and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described general location of which are set forth on Schedule 2.1(d1.1(b) of the Seller Disclosure Letter (collectively, the “Equipment”);
(ec) The rights supplies and benefits accruing to inventory owned by Seller (collectively, “Inventory”) as lessee under any leases and/or subleases of March 31, 2012 (the “Cutoff Date”) that are used or held for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used use solely in the operation of its Business the Hospital Facilities, together with any additions or deletions thereto in accordance with this Agreement;
(each an “Equipment Lease” d) the medical records of Seller in respect of the Acute Care Hospital patients, on the Date of Closing or discharged prior to Date of Closing, the records of Seller in respect of all residents of the SNF on the Date of Closing or discharged prior to Date of Closing, and collectively the medical records of the Physician Practices for patient encounters prior to the Date of Closing, the financial, patient, medical staff and personnel records of Seller relating to the Hospital Facilities including, without limitation, equipment records, medical administrative libraries, medical records, patient billing records, documents, catalogs, books, records, files, operating manuals and current personnel records, whether in electronic form or otherwise;
(e) the rights and interests, to the extent assignable, of Seller in the contracts, commitments, leases and agreements (the “Equipment LeasesContracts”)) including, each of which is without limitation the contracts listed on Schedule 2.1(e)1.1(e) of the Seller Disclosure Letter;
(f) All of Seller’s inventory in connection with Seller’s Businessthe licenses, which as approvals, qualifications, registrations, certifications, authorizations, and permits, to the extent assignable, held by Seller relating solely to the ownership, development, and operation of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1Hospital Facilities (including, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 without limitation, any pending or approved governmental approvals (the “InventoryPermits”);
(g) Seller’s Business as a going concernthe names, its Franchise Rightstrade names, trademarks and service marks (or variations thereof) of Seller associated with the Hospital Facilities (other than the trade names, trademarks, service marks and other intellectual property containing the words, “SunLink,” “SunLink Healthcare,” “HealthMont,” HealthMont of Georgia,” or any iteration or variation thereof), the goodwill associated therewith, and the applications and registrations, if any, associated therewith;
(h) the goodwill associated with the Hospital Facilities and the Purchased Assets;
(i) any rights to causes of action, lawsuits, judgments, claims, and demands, of any nature available to or being pursued by the Seller with respect to the Purchased Assets or the Hospital Facilities whether or not accrued and whether or not disclosed and all rights and defenses in respect of the Assumed Liabilities;
(j) all the proceeds, claims, refunds and rights of recovery under (i) property casualty insurance policies and benefits (but not its obligations ii) liability insurance policies to the extent insuring against, related to or liabilitiesproviding coverage for the Assumed Liabilities;
(k) under its Franchise Agreements, all intellectual property of Seller used in connection with its businessreceivables accrued, including without limitation, all trademarksaccounts and notes receivable, service marksreceivables arising from the rendering of services to patients at the Hospital Facilities, rights claims and settlements made pursuant to computer softwareMedicare, trade secrets (includingMedicaid, without limitationBlue Cross, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of CHAMPUS/TRICARE cost reports filed by the Seller’s right , or to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business be filed (collectively, the “LicensesAccounts Receivable”), in each case with respect to periods following the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i)Cutoff Date;
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s rightall deposits, title advances, pre-paid expenses and interest in and to its telephone numbers and credits accrued after the directory advertising for such telephone numbers, to the extent assignableCutoff Date;
(m) All domain namesthe other property, websites other than the Excluded Assets, of every kind, character or description owned by Seller which are used or held for use in the business of the Hospital Facilities, wherever located (exclusive of software, computers and other intellectual property assets located at SunLink’s offices which are used jointly to provide services to Seller and other hospital, nursing home facilities and physician clinics owned by Affiliates of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(mSeller), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except all cash and cash equivalents in the Hospital Accounts (as provided defined in Section 2.2(c), all claims, security the Management Agreement) on the Closing Date (exclusive of EHR Funds and other deposits, prepayments, prepaid expenses, refunds, causes or proceeds of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”ICTF receivables constituting Excluded Assets); and
(po) All tax credits the interest of Seller in all property of the foregoing types, arising or rights to credits available to acquired in the ordinary course of the business of Seller in connection with the operation Hospital Facilities between the date hereof and the Closing. Notwithstanding anything to the contrary in this Agreement, Buyer and Seller agree that the definition of Purchased Assets shall be amended to include, upon written request of Buyer delivered to Seller at any time before the Closing, Seller’s Business to the extent transferable to Purchaser but excluding Medicare or Medicaid provider numbers and any tip credits related Contracts or income tax credits usable by Seller up to the Closing Dateauthorizations.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Sunlink Health Systems Inc), Asset Purchase Agreement (Sunlink Health Systems Inc)
Purchased Assets. Subject to the entry of the Sale Order by the Bankruptcy Court and upon the exclusions set forth in Section 1.2, and in accordance with the terms and conditions set forth hereinof this Agreement, at the Closing Seller shall convey, Sellers agree to sell, assign, transfer transfer, convey and deliver to Purchaser Buyer, and Purchaser shall Buyer agrees to purchase, acquire and accept assume from Sellers, all of Seller’s right, title and interest in and to all of Seller’s tangible and intangible assets usedthe following (collectively, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Purchased Assets”), including without limitationas more specifically described in the Disclosure Schedules, free and clear of all Encumbrances (other than the Assumed Liabilities) to the maximum extent allowed by Section 363(f) of the Bankruptcy Code:
(a) The rights and benefits accruing to Seller as lessee under any immovable outstanding accounts receivable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property LeaseAccounts Receivable”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3);
(b) All rightThe equipment, title and interestmachinery, if anytools, to leasehold improvements, fixtures, constructions, component parts vehicles and other immovable (realtangible personal property set forth on Section 1.1(b) property owned by Seller and located on of the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold ImprovementsDisclosure Schedules;
(c) All rightCertain Contracts, title real property leases and interestany amendments, if anycodicils, to easementsside letter agreements, servitudesextensions and integrated agreements thereto, privileges, rights-of-way and other real rights of Seller pertaining to or accruing that relate primarily to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) set forth on Section 1.1(c) of the Disclosure Schedules; provided, however, that Buyer reserves the right to amend Section 1.1(c) of the Disclosure Schedules through and all accrued including the Closing Date; provided, that, other than with respect to any amendments with respect to the TGS Contract and the Malaysia Contract made by July 3, 2018 and any real property leases, Buyer shall be responsible for payment of actual costs and expenses in connection with any such amendments;
(d) To the extent assignable, Tax assets other than deposits for the payment of Taxes;
(e) Inventory, finished goods, raw materials, work in progress, packaging, supplies, parts, and other inventories;
(f) Seismic data, trademarks, know-how, trade secrets, patentable inventions, patents (whether or prepaid advertising rightsnot abandoned and regardless if listed on Section 1.1(f) of the Disclosure Schedules) and other intellectual property rights associated with the Business, including those set forth on Section 1.1(f) of the Disclosure Schedules;
(g) Customer lists, electronic media, books and records associated with the Purchased Assets and the design and operation thereof;
(h) Insurance claims and proceeds to the extent related to the Purchased Assets or the Assumed Liabilities;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to To the extent they relate to Seller’s Business (collectivelytransferable, the “Licenses”), in each case to the extent transferable by the SellerPermits, including without limitation those listed on Schedule 2.1(i)environmental Permits held by Sellers and required for the conduct of the Business as currently conducted or for the ownership and use of the Purchased Assets;
(j) All files, operating manuals and correspondence pertaining rights to any actions of any nature available to or being pursued by any Seller to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably extent related to the Business (collectivelyBusiness, the “Books and Records”)Purchased Assets or the Assumed Liabilities, whether arising by way of counterclaim or otherwise;
(k) All Prepaid expenses, credits, advance payments, claims, security, refunds, rights of Seller’s rightrecovery, title rights of set-off, rights of recoupment, and interest in deposits, other than: Tax deposits; bank deposits; deposits associated with Contracts that are not Assigned Contracts; professional retainers; prepaid insurance; and any right rights of setoff, recoupment and rights of recovery relating to lease the property identified in Schedule 2.1(a)-2Contracts that are not Assigned Contracts, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property other Excluded Assets or options to purchase the leased premises.Excluded Liabilities);
(l) All causes of Seller’s rightaction, title and interest in and to its telephone numbers and including causes of action under Chapter 5 of the directory advertising for such telephone numbersBankruptcy Code, related to the extent assignablePurchased Assets and against vendors from which a Seller has purchased goods or services during the 91-day period prior to the filing of the Bankruptcy Cases;
(m) All domain names, websites and other intellectual property of any kind or nature used The overriding royalty interests owned by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;the following State of Alaska oil and gas leases: ADL 391701; ADL 391704; ADL 391706; ADL 391707; ADL 391725; ADL 391731 and ADL 391732; and
(n) Except as Originals, or where not available copies, of all books and records provided in Section 2.2(c), that Sellers will be entitled to retain copies of all claims, security books and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Daterecords.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (SAExploration Holdings, Inc.)
Purchased Assets. Subject Purchaser will acquire from Seller, and Seller will Transfer, or cause to be Transferred, to Purchaser, as of the Closing, free and upon the terms and conditions set forth hereinclear of all Liens (other than Permitted Liens), at the Closing Seller shall convey, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept all of Seller’s right, title and interest in and to all the assets of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date set forth below (the “Real Property LeasePurchased Assets”; for the avoidance of doubt, the Purchased Assets do not include the assets purchased pursuant to the MSR Purchase Agreement):
(i) prepaid expenses, guaranties, warranties, credits, indemnities, deposits and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3similar rights related to the Purchased Assets or the Assumed Liabilities;
(bii) All rightAssigned Contracts, title including any rights, interests, claims and interestbenefits of Seller under, if anypursuant to, to leasehold improvementsor associated with, the Assigned Contracts;
(iii) furniture, fixtures, constructionsequipment (other than computers and technology equipment), component parts vehicles, tools and other immovable (real) tangible personal property owned by Seller and located on at the Leased PremisesJacksonville Facility as of the Closing Date, including without limitation those items listed on Schedule 2.1(b) (collectively, any of the “Leasehold Improvements”) and all architectural plans and mechanical drawings related foregoing purchased subject to the Leasehold Improvementsany conditional sales or title retention agreement in favor of any other Person;
(civ) All right, title and interestthe assets acquired by Purchaser in accordance with Section 2.04(a), if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to together with all Intellectual Property embodied therein or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) thereby (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Purchased Intellectual Property”);
(hv) All claims all books and rights records pertaining solely to, or used solely for, the Purchased Assets and the Business (but excluding, for the avoidance of doubt, any Tax Returns of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating its Affiliates that relate solely to its Business, including without limitation those listed Taxes attributable to taxable periods ending on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority prior to the extent they Closing Date or other Taxes for which Seller is responsible hereunder); provided, for the avoidance of doubt, Seller shall use its commercially reasonable efforts to provide any books and records that relate to, or are used for, the Purchased Assets and Business (but do not solely relate to Seller’s the Purchased Assets or the Business) to Purchaser and may redact or remove any information included therein that is not relevant to the Purchased Assets or the Business (collectively, and solely the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(iportion of such information that is not relevant);
(jvi) All filesall causes of action, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze)lawsuits, business booksjudgments, recordsclaims, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Businesscounterclaims, and demands of any correspondence relating nature available to the Business or reasonably related to the Business (collectivelybeing pursued by Seller, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numberseach case, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to the Purchased Assets (including without limitation or the Inventory)Assumed Liabilities, rights whether arising by way of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”)counterclaim or otherwise; and
(pvii) All tax credits or rights to credits available to Seller in connection all goodwill associated with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Dateforegoing.
Appears in 2 contracts
Sources: Asset Purchase Agreement (New York Community Bancorp, Inc.), Asset Purchase Agreement (Mr. Cooper Group Inc.)
Purchased Assets. Subject to At the Closing, and upon the terms and subject to the conditions set forth hereinin this Agreement, at the Closing Seller shall sell, transfer, convey, sell, assign, transfer assign and deliver to Purchaser the Purchaser, and the Purchaser shall purchasepurchase and receive from the Seller, acquire and accept all of the Seller’s 's right, title and interest in and to all of Seller’s tangible the property, assets and intangible assets usedrights owned, leased, used or held for use or by the Seller primarily (except as otherwise specifically provided in any way relating to its of Sections 2.1(a) through 2.1(q)) in connection with the Packaged Gas Business (other than the Excluded Assets Assets), of every kind, character and description, whether tangible, intangible, personal or mixed and wheresoever located, whether carried on the books of the Seller or not carried on the books of the Seller, due to expense, full depreciation or otherwise (as hereinafter defined) collectively, the "Purchased Assets"), free and clear of all liabilities, obligations and Liens (referred other than the Permitted Liens, the Assumed Liabilities and the rights of the Seller with respect to hereinafter collectively as “Seller’s Assets” or “its Assets”Joint Use Property pursuant to Section 7.25), including without limitationthe following:
(a) The rights and benefits accruing (i) subject to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise RightsSection 7.26 hereof, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s 's right, title and interest in and any right the Owned Real Property as set forth on Schedule 5.14(a) and, subject to lease obtaining the property identified in necessary Consents, the Real Property Leases as set forth on Schedule 2.1(a)-2, which includes all potential lease rights Seller may have5.14(b), including but not limited options the privileges, appurtenances, rights, easements and hereditaments appurtenant to lease adjacent property or options for the benefit of such Owned Real Property and Real Property Leases, and (ii) the Real Property Rent Prepayments with respect to purchase all periods from and after the leased premises.Closing Date;
(lb) All petty and drawer cash on hand at any Owned Real Property or Leased ▇▇▇▇ Property on the Closing Date;
(c) all of the Seller’s 's right, title and interest in and to its telephone numbers the Purchased Equipment, including those (i) motor vehicles and tractors (excluding, for purposes of Schedule 2.1(c)(i) only and not from the directory advertising definition of Purchased Equipment, cars and forklifts) set forth on Schedule 2.1(c)(i), (ii) tube trailers set forth on Schedule 2.1(c)(ii), (iii) Seller-leased vehicles used by Employees who become Transferred Employees (a list of all the leases with respect to such vehicles used by the Employees is set forth on Schedule 2.1(c)(iii), which Schedule shall be updated as of the Closing Date to reflect only those leases for vehicles provided to Transferred Employees), and (iv) bulk tanks set forth on Schedule 2.1(c)(iv) (but at all times subject to the rights of the Seller with respect to Joint Use Property pursuant to Section 7.25), as well as all manufacturers' warranties associated with such telephone numbersPurchased Equipment, to the extent assignablesuch warranties are assignable and except to the extent required by the Seller to pursue any claim the Seller may have under any such warranty relating to the period prior to the Closing;
(md) All domain namesall of the Seller's right, websites title and other intellectual property interest in and to the Purchased Inventory, as well as all manufacturers' warranties associated with such Purchased Inventory and all rights of the Seller against suppliers of such Purchased Inventory, to the extent such warranties are assignable and except to the extent required by the Seller to pursue any kind claim the Seller may have under any such warranty or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related right relating to Seller’s Business or the period prior to ▇▇▇▇’▇ ▇▇▇▇▇ Steak Housethe Closing;
(ne) Except as provided all of the Seller's right, title and interest in Section 2.2(c)and to all Purchased Intellectual Property;
(f) all of the Seller's right, all claims, security title and other deposits, prepayments, interest in and to deposits and prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties expenses to the extent such deposits and guarantees prepaid expenses relate to the Packaged Gas Business or the Purchased Assets with respect to Purchased Assets all periods from and after the Closing Date (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”"Prepaid Expenses");
(og) all of the Seller’s working cash's right, which shall be $1,000 per restaurant (title and interest in and to all claims, causes of action and guarantee rights with respect to the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business Purchased Assets, to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to that they arise from and after the Closing Date., excluding those referred in Section 2.2(p);
(h) subject to Section 7.9, all of the Seller's rights under, and interest in, all agreements, arrangements, contracts, policies, leases (including operating leases), conditional sales contracts, licenses, franchises, understandings, commitments and other binding arrangements (collectively, "Contracts") to which the Seller is a party or by or to which the Purchased Assets are bound or subject to the extent relating to the Packaged Gas Business (for the avoidance of doubt, with respect to any Contract that relates to both the Packaged Gas Business and one or more Excluded Business, the Purchaser shall only acquire all of the Seller's rights under, and interest in, that portion of such Contract that relates to the Packaged Gas Business), but, excluding all Contracts of the types described on Schedule 2.2
Appears in 1 contract
Sources: Asset Purchase Agreement (Airgas Northern California & Nevada Inc)
Purchased Assets. Subject to and upon the terms and conditions set forth herein, at the Closing Seller shall convey, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept The Purchased Assets are all of Seller’s rightthe assets of Sellers used in the Business, title and interest in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitationincluding:
(a) The All of the billboard displays and other out-of-home advertising structures (including rights to walls) set forth and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on described in Schedule 2.1(a)-12.2 attached hereto, together with all components, fixtures, parts, appurtenances, and equipment attached to or made a part thereof that are existing, under construction or for which Sellers have any leases which may be executed on rights (collectively, the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;"Structures"); 6
(b) All rightleases, title licenses, easements, other rights of ingress or egress, and interestall other grants of the right to place, if anyconstruct, to leasehold improvementsown, fixturesoperate or maintain the Structures on land, constructions, component parts buildings and other immovable (real) real property owned by Seller third parties, and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) all rights therein (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements"Site Leases"), which Site Leases are listed on Schedule 2.2(b);
(c) All rightof the real property owned in fee by Sellers and any rights therein, title and interestall buildings, if anyfacilities, to easementsstructures, servitudesfixtures, privileges, rights-of-way leasehold and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premisesimprovements located therein, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”2.2(c);
(d) All machinery (including without limitation all computer hardware used in connection rights under existing and pending sales and advertising contracts associated with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, suppliesStructures, and other corporeal (tangible), movable (personal) property located all rights to the advertising copy displayed on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) Structures as of the Closing Date (collectively, the “Equipment”"Advertising Contracts"), which Advertising Contracts are listed on Schedule 2.2(d) attached hereto;
(e) The rights All state and benefits accruing local licenses or permits/tags which Sellers have with respect to Seller as lessee under any leases and/or subleases the Structures and, to the extent assignable, all other Governmental Authorizations that are required for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business the Structures, (each an “Equipment Lease” and collectively collectively, the “Equipment Leases”"Permits"), each of which is Permits are listed on Schedule 2.1(e2.2(d);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed pertinent Books and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”)Records;
(g) Seller’s Business as a going concernAll tangible personal property, its Franchise Rightsincluding furniture, all vehicles, equipment, computer hardware and software, owned by Sellers and used in the operation of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”)Business;
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively Intangible Property used in connection with the “Assigned Contracts”) and all accrued or prepaid advertising rights;Business except the tradename Villepigue; and
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of rights (including any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”benefits arising therefrom), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights claims and demands of recovery, warranties and guarantees with respect to Purchased Assets whatever nature (including without limitation the Inventory), rights whether or not liquidated) of set off, and rights of recoupment of Seller (including any such item Sellers relating to the payment of taxes other than income taxes) Purchased Assets, including, without limitation, condemnation rights and proceeds, and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (rights against suppliers under warranties covering any of the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing DatePurchased Assets.
Appears in 1 contract
Purchased Assets. Subject (a) Seller owns and shall convey to Buyer at Closing good and upon marketable title to all of the terms Purchased Assets, free and conditions clear of all Liens of any nature whatsoever except for: (i) those Liens set forth hereinin the Title Commitment, or (ii) the Liens set forth on Schedule 3.4 attached hereto and (iii) Liens that do not materially adversely affect the use of or adversely affect the value of any Purchased Asset. Seller is in sole possession of, and has sole control of, the Purchased Assets. Except as set forth on Schedule 3.4(a) hereto, none of the Purchased Assets is leased, rented, licensed, or otherwise not owned by Seller. Schedule 1.32 contains a complete and accurate list of the animals included in the Included Assets, their identification number, their production use and the customer for which the production is used. In the event of any defect in title to real property included in the Purchased Assets, Buyer shall look solely to the title insurance policy issued pursuant to the Title Commitment for redress and none of Buyer, Seller, Sybron or Parent shall have any liability therefor.
(b) Parent owns and shall convey to Buyer at the Closing Seller shall convey, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept all of Seller’s its right, title and interest to (i) Parent's partnership interest in and to all of Seller’s tangible and intangible assets usedSeracon Diagnostics Company, held for use or in any way relating to its Business other than the Excluded Assets L.P. (as hereinafter definedii) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All Parent's right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related interest to the Leasehold Improvements;
(c) All rightAgreement of Limited Partnership of Seracon Diagnostics Company, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection Ltd. with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant)Laboratories, including without limitation Ltd. and (iii) the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to Non-Competition Agreement with ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;▇▇▇▇ free and clear of any Liens.
(nc) To Seller's Knowledge, the Purchased Assets include all of the assets of Seller which are used in or necessary for the current operation of the Business, excepting therefrom only any Retained Assets.
(d) To Seller's Knowledge, the Fixed Assets (excluding the Included Assets) and the Leased Assets are in good operating condition and repair, normal wear and tear excepted, free from any defects (except minor defects that do not interfere with the use thereof in the conduct of the normal operations of the Business), have been maintained consistent with industry standards, and are sufficient to carry on the Business as previously conducted by Seller.
(e) Except as provided in Section 2.2(c)set forth on Schedule 3.4(e) hereto, all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to the tangible Purchased Assets (including without limitation are physically located at the Inventory), rights of set offPremises or the Farm, and rights none of recoupment the Leased Assets are subject to any transfer, assignment, site equipment, or other operational limitations.
(f) The Inventory consists of Seller items of a quality and quantity currently useable and salable in the ordinary course of Business without material markdowns or material discounts.
(including g) To Seller's Knowledge, no notice of any such item violation of any Law relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Purchased Assets or their use has been received by the Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Date.
Appears in 1 contract
Purchased Assets. Subject to and upon Upon the terms and subject to the conditions set forth hereincontained in this Agreement, at the Closing Closing, Seller shall, and shall conveycause the Assigning Affiliates to, sell, convey, assign, transfer and deliver to Purchaser Purchaser, and Purchaser shall purchasewill purchase and acquire from Seller and the Assigning Affiliates, acquire and accept as applicable, all of Seller’s 's and the Assigning Affiliates' right, title and interest in in, to and to under the Project and all of Seller’s tangible 's and intangible the Assigning Affiliates' right, title and interest in, to and under other properties, assets and facilities used, or held for use use, primarily (or, to the extent set forth below, exclusively) in connection with its ownership of the Project (or, to the extent set forth below, on hand or customarily located at the Project or the Project Site identified or described in any way relating a Schedule hereto), each as in existence on the Closing Date, including all of Seller's and the Assigning Affiliates' right, title and interest in, to its Business other than and under the assets described below, but excluding all Excluded Assets (as hereinafter definedcollectively, the "Purchased Assets") free and clear of all liens, claims and encumbrances, to the fullest extent permitted by Section 363 of the Bankruptcy Code, other than Permitted Encumbrances specified in clause (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitationv) of the definition of such term:
(a) The rights parcels of immovable property and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date Personal Rights of this Agreement through the Closing DateUse described in Schedule 2.1(a), each of which is listed on Schedule 2.1(a)-1and all appurtenances thereto, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date all buildings, fixtures, component parts, other constructions and other improvements thereon and thereto, including all construction work in progress (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3"Owned Immovable Property");
(b) All right, title The immovable property leasehold estates and interestthe related lease or sublease agreements, if any, to leasehold improvementsdescribed in Schedule 2.1(b), fixturesand all appurtenances thereto, constructionstogether with all buildings, component parts fixtures and other immovable (real) property owned by Seller improvements thereon and located on the Leased Premisesthereto, including without limitation those items listed on Schedule 2.1(b) all construction work in progress (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements"Leased Immovable Property");
(c) All rightThe machinery, title mobile or otherwise, equipment, vehicles, tools, furniture and interestfurnishings, if any, to easements, servitudes, privileges, rights-of-way and other real rights tangible movable property that (i) are not Inventory and (ii) are (A) listed or described in Part I of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) or customarily located at the Project or the Project Site (collectively, the “Easements”"Owned Tangible Movable Property") or (B) leased and listed or described in Part II of Schedule 2.1(c) or customarily located at the Project or the Project Site, together with the related lease or sublease agreements (collectively, the "Leased Tangible Movable Property");
(d) All machinery The Inventory on hand at the Project (including without limitation all computer hardware used which is not Tangible Movable Property) or listed or described in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”"Purchased Inventory") and the Consumables on hand at the Project (which are not Tangible Movable Property);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances Project Contracts listed or other corporeal (tangible), movable (personal) property used described in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e) (the "Purchased Project Contracts");
(f) All The permits, registrations, licenses, franchises, certificates and other consents, approvals and authorizations of Seller’s inventory Governmental Authorities listed or described in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 2.1(f) (the “Inventory”"Permits");
(g) Seller’s Business as a going concernThe books, its Franchise Rightsrecords, all documents, drawings, reports, operating data, operating safety and maintenance manuals, inspection reports, engineering design plans, blueprints, specifications and procedures and similar items located at the Project Site or used primarily in support of the rights Project and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used specifically excluded in connection with its businessSection 2.2 hereof, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all any of the Seller’s right to do foregoing listed or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on described in Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims warranties and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising guarantees from third parties on or relating to its Businessany of the Purchased Assets, including without limitation those the warranties and guarantees from manufacturers, contractors, suppliers and other third parties listed on or described in Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights"Warranties");
(i) All licensesThe claims or causes of action against any third parties (including indemnification claims, permitscontribution claims or claims for refunds, consentsprepayments, use agreementsoffsets, approvalsrecoupment, authorizations insurance proceeds, condemnation awards, judgments and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), like) listed or described in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All filesThe advance payments, operating manuals and correspondence pertaining to prepayments, prepaid expenses, deposits, credits or the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business like listed or reasonably related to the Business described in Schedule 2.1(j) (collectively, the “Books and Records”"Prepaid Items");
(k) All of Seller’s right, title and interest Not less than ten (10) SO2 Emission Allowances in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.Project's USEPA Allowance Tracking System individual boiler accounts; and
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising Except for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c)Excluded Assets, all claimsother assets, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in actionproperties, rights and interests of recoverySeller of every kind, warranties nature and guarantees with respect to Purchased Assets (including without limitation the Inventory)description, rights of set offwhether tangible or intangible, real, personal or mixed, or fixed or contingent, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Datewherever situated.
Appears in 1 contract
Purchased Assets. Subject to the provisions of this Agreement, ▇▇▇▇▇▇ agrees to sell and upon the terms and conditions set forth herein▇▇▇▇▇ agrees to purchase, at the Closing Seller shall convey(as defined in Section 1.5 hereof), sell, assign, transfer Seller’s Business and deliver to Purchaser and Purchaser shall purchase, acquire and accept all of Seller’s right, title the properties and interest in assets of every kind and to all description of Seller’s tangible and intangible assets used, held for use or in any way Seller relating to its Business other than such business, including, without limitation, those assets listed on Schedule 1.1 and particularly described below (however, excluding the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(bset forth in Section 1.2 hereof) (collectively, the “Leasehold ImprovementsPurchased Assets”):
(a) all of Seller’s goodwill relating or attributable to or arising from Seller’s Business and the Purchased Assets;
(b) all architectural plans of Seller’s property (both real and mechanical drawings related to the Leasehold Improvementspersonal), plant and equipment, all as set forth on Schedule 1.1(b);
(c) All rightall of Seller’s office supplies, title and interestmachinery, if anyoffice equipment, to easementstelephone equipment, servitudesfurniture, privilegesfurnishings, rights-of-way fixtures, computer hardware and other real rights of Seller pertaining to computer equipment (including any cell phones or accruing to the benefit of the Leased Premisesother similar devices), including without limitation those items listed tools, instruments, vehicles, and other tangible personal property, all as set forth on Schedule 2.1(c) (collectively, the “Easements”1.1(c);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business)contracts, kitchen agreements, commitments, claims and other appliancesrights under any such orders, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, contracts and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described proposals set forth on Schedule 2.1(d1.1(d) (collectively, the “EquipmentAssumed Contracts”);
(e) The all franchise rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used operate the Seller’s regulated utility service in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e)franchise areas;
(f) All all contributions in aid of Seller’s inventory in connection with Seller’s Businessconstruction (“CIAC”), which as of the day before the Closing Date are those items listed and described set forth on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 Schedule
1.1 (the “Inventory”g);
(g) all construction work in process (“CWIP”), as set forth on Schedule (h) all inventory of the Seller as of the Closing Date as set forth on Schedule
(i) all of Seller’s general and other intangibles, trade secrets and information, know-how, methods, processes, formulae, drawings, material and performance specifications and all computer software, owned or licensed;
(j) all of Seller’s customer lists, lists of prospective customers, pending quotations, pending new business, files and records, personnel files and records;
(k) all of Seller’s licenses and permits that can be transferred to Buyer as set forth on Schedule 1.1(k) together with, if any, all rights of renewal and amenities thereto;
(l) the use of Seller’s mailboxes, telephone numbers (cellular and land line), facsimile numbers, electronic addresses and web sites, including passwords, user identifications and related information;
(m) all books and records of Seller relating to the assets being transferred including, without limitation, receivables journals and ledgers, invoices, receipts, canceled checks, repair and maintenance records, correspondence related to the operation of Seller’s Business as a going concernand correspondence and materials related to Seller’s tax returns, its Franchise Rightsincluding any declarations, reports or statements,
(n) all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all Seller’s intellectual property of Seller used in connection with its businessevery kind, including without limitation, limitation all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) logos and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising marketing materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence trade names and designations relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);; and
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business all domain names and web sites registered to the extent transferable to Purchaser but excluding any tip credits Seller or income tax credits usable by Seller up to the Closing DateShareholders that are related to the Business, including passwords, user identifications and related information. It is expressly agreed that the assets and properties sold hereunder shall include all assets and properties needed by Buyer to own and operate the Business, whether or not listed in any Schedule hereto.
Appears in 1 contract
Sources: Asset Purchase Agreement
Purchased Assets. Subject to and upon On the terms and subject to the fulfillment of the conditions set forth hereinhereof, CN hereby agrees to sell, transfer and assign to SLQ, and SLQ hereby agrees to purchase and accept from CN, as at the Closing Seller shall conveyDate, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept all of Seller’s CN's right, title and interest in the following real and to all of Seller’s tangible and intangible assets usedpersonal property comprising CN's Sherbrooke Line, held for use or in any way relating to its Business other than but excluding the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3Purchased Lands;
(b) All right, title all other real property and interest, if any, to leasehold improvements, fixtures, constructions, component parts appurtenances and other immovable (real) property owned operating rights now held and used by Seller and located CN in providing rail service on the Leased PremisesSherbrooke Line, including without limitation, all attached railway works and facilities, including without limitation those items listed subgrade, grade, rails, ties, rail fastenings, ballast, other track structure and materials, track inventory, trestles, bridges, culverts, signals, communication facilities (radio towers, signal bungalows and base station radios; excluding fibre optics and fibre optic right-of-way corridor as defined in Section 18.1), buildings, crossing protection devices, and other railway fixtures and appurtenances located on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold ImprovementsPurchased Lands;
(c) All rightall those hand tools, title in the engineering section buildings located on the Purchased Lands, subject to ordinary wear and interest, if any, to easements, servitudes, privileges, rights-of-way tear and such other real rights changes thereto as may occur in the ordinary course of Seller pertaining to or accruing business up to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”)Closing Date;
(d) All machinery (including without limitation all computer hardware used in connection leases, licenses, contracts, agreements and commitments by or with third parties affecting or relating to the operation or ownership of the Sherbrooke Line, whether or not known to CN (excluding CN's labour agreements, interline traffic agreements and maintenance of Seller’s BusinessCN's interswitching agreement with Quebec Southern Railway), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation CN's rights and obligations under those items leases, licenses, contracts and agreements listed in Schedule E, subject, however, to
(i) Section 3.4 in reference to confidential contracts;
(ii) the limitations set out in Section 7.2 on the assignment of leases, licenses, contracts and described agreements without consent; and
(iii) obligations or liabilities of CN arising out of or related to events occurring or conditions existing on Schedule 2.1(d) (collectivelythe Purchased Assets prior to the Commencement Date or the operation of CN's business thereon prior to the Commencement Date, and those that accrue after the “Equipment”)Commencement Date which are for benefits received by CN;
(e) The rights and benefits accruing except as otherwise provided in this Agreement or in other agreements referred to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rightsherein, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation duties and obligations associated with the trade names listed on Schedule 2.1(g), goodwill Sherbrooke Line and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business the railroad business thereon, to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Datewhich SLQ shall hereby succeed and assume.
Appears in 1 contract
Sources: Asset Purchase Agreement (Emons Transportation Group Inc)
Purchased Assets. Subject to and upon Upon the terms and subject to the conditions set forth hereinof this Agreement, at the Closing Seller shall conveyClosing, sell, assign, transfer and deliver to Purchaser and Purchaser the Buyer shall purchase, acquire and accept from the Asset Seller, and the Asset Seller shall sell, convey, assign and transfer to the Buyer, all of the Asset Seller’s right, title and interest in and to all the following specific assets, properties and rights owned or leased by the Asset Seller for the sole and exclusive use in the conduct of Seller’s tangible and intangible assets usedthe Acquired Businesses located at the Facility (except to the extent other locations are expressly set forth in this Section 1.2(a)), held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as collectively, the “Seller’s Assets” or “its Purchased Assets”), including without limitation:
(a) The rights free and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date clear of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1all Liens, together with any leases which may be executed on all rights now and hereafter attaching thereto:
i. all Inventory located at the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from Facility, excluding all finished goods for the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3Excluded Brands;
(b) All rightii. all finished goods for the Acquired Company Brands and/or CBA Brands located at either ABC, title and interest, if anyLLC’s macro breweries or, to leasehold improvementsthe extent not sold to wholesalers, fixturesdistribution centers;
iii. all finished goods for Shock Top located at ABC, constructionsLLC’s macro breweries or, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvementsextent not sold to wholesalers, distribution centers;
iv. all supplies (c) All rightfor the sake of clarification, title not including Anheuser-▇▇▇▇▇-branded kegs, cooperage and interestpallets, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware but which shall include approximately 94,000 CBA embossed kegs used in connection with the operation business of CBA (provided that Buyer shall not use such CBA embossed kegs without first removing or reasonably obfuscating the CBA name and maintenance of Seller’s Businesstrademarks)), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table clothsproduction supplies, spare parts, tools, supplies, other miscellaneous supplies and other corporeal (tangible), movable (personal) tangible property located at the Facility (provided such kegs may be located both on and off the Leased Premises premises of the Facility);
v. additional kegs shall be delivered at Closing (the “Specified Keg Inventory”) in an amount equal to 70,500 kegs and valued at $1,500,000 (or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d$21.28 ($21.2766) per keg) (collectively, the “EquipmentTarget Specified Keg Inventory Value”);
vi. all leasehold improvements and all machinery, equipment (e) The rights including all brewing and/or distilling equipment and benefits accruing to Seller as lessee under any leases and/or subleases for all vehicles), fixtures, trade fixtures, IT equipment, machineryIT devices (which for the sake of clarity excludes computers, appliances or other corporeal (tangiblelaptops, iPads, and similar computing devices), movable (personal) property used tools and furniture located at the Facility, including the Software embedded in any of the operation of its Business (each an “Equipment Lease” and collectively foregoing;
vii. the “Equipment Leases”), each of which is Contracts listed on Schedule 2.1(e1.2(a)(vii) and, for the sake of clarity, the Shock Top Agreement;
viii. all prepayments and prepaid expenses associated solely and exclusively with the Facility or the Purchased Assets, including any utility, security, and other deposits;
ix. all Permits solely to the extent that transfer is permitted by Law;
x. all of the Facility Owned Real Property, including all plants, buildings, fixtures, and other improvements located on such real property and all easements, licenses, rights of way, permits and appurtenances to all Facility Owned Real Property (including all appurtenant rights in and to public streets, whether or not vacated);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, xi. all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority employment records to the extent they relate legally permissible to Seller’s Business (collectivelytransfer;
xii. all advertising, marketing, and promotional materials and all other printed or written materials specific to the Acquired Company Brands, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i)CBA Brands and/or Shock Top;
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), xiii. all claims, security and other depositsrefunds, prepayments, prepaid expenses, refundscredits, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, recovery and rights of recoupment set-off of Seller (including any such item relating kind specific to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”)Purchased Assets; and
(pA) All tax credits all lists, records and other written information pertaining to accounts and referral sources specific to the Purchased Assets, the Acquired Company Brands and/or the CBA Brands; (B) all lists, records and other information pertaining to the vendors, suppliers, licensors, and customers exclusive to the Purchased Assets, the Acquired Company Brands and/or the CBA Brands; (C) and all ledgers, files and business and accounting records of every kind (including all financial, business and marketing plans) specific to the Purchased Assets the, Acquired Company Brands and/or the CBA Brands, whether evidenced in writing, electronic data, or rights otherwise stored at the Facility; provided for the sake of clarity, financial information is limited to credits available the financial information provided in Section 3.7 and Section 4.1 to Seller this Agreement as well as financial information provided in connection with the operation Data Room (for which is provided on an AS-IS Basis without any representation or warranty of Seller’s Business any kind); provided further, to the extent transferable any of the foregoing items contain information pertaining to Purchaser but excluding any tip credits or income tax credits usable by Seller up an Excluded Brand, such items shall be redacted prior to the Closing Dateits production.
Appears in 1 contract
Sources: Securities and Asset Purchase Agreement (Tilray Brands, Inc.)
Purchased Assets. Subject to and upon the terms and conditions set forth herein, at the Closing Seller shall convey, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept all of Seller’s right, title and interest in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Schedule 1 sets forth the only Patents that constitutes a Jounce Patent owned by Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;.
(b) All rightSeller (i) is the sole and exclusive owner of, and has good and valid title to, all of the Purchased Assets, free from Encumbrances; (ii) has not granted to any Third Parties any rights under the Purchased Assets (except for non-exclusive licenses granted to Third Parties solely for purposes of performing services on behalf of, and interestfor the benefit of, if anySeller), to leasehold improvementsand (iii) is listed in the records of the appropriate Governmental Authority as the sole and exclusive owner of record for each registration, fixturesgrant, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related application with respect to the Leasehold Improvements;Purchased Patents.
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real Seller has not granted any Third Party any rights of Seller pertaining to under any Purchased Assets that would conflict with or accruing to limit the benefit scope of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, assets or rights purported to be transferred to Buyer hereunder or ▇▇▇▇▇’s use of such assets or rights after Closing. Seller has the “Easements”);full and legal rights and authority to disclose the Purchased Know-How to Buyer free from Encumbrances.
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business)[***], kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises Seller has not received [***] or [***] that any [***] by Seller or Buyer [***] or otherwise relating to Seller’s Business[***], including without limitation those items listed and described on Schedule 2.1(d) (collectivelyor is [***], or otherwise [***], the “Equipment”);[***] of such [***].
(e) The rights All inventors of the inventions claimed in the Purchased Patents are accurately identified in the relevant Purchased Patents, applications and benefits accruing related filings and submissions in accordance with Applicable Law, and all inventors identified in such records are former or current employees or contractors of Seller who have, in each case, assigned all of their respective right, title, and interest in the applicable Purchased Patents to Seller as lessee under prior to the Agreement Date. As of [***], Seller has Prosecuted and Maintained all Purchased Patents in good faith and has complied with the USPTO duty of disclosure respecting the Prosecution and Maintenance thereof, and, to Seller’s knowledge, all issued patents included in the Purchased Patents are valid and enforceable without any leases and/or subleases for equipmentclaims, machinerychallenges, appliances oppositions, interference, or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);similar proceedings pending or threatened.
(f) All of Seller’s inventory Jounce employees, officers, and consultants who have been or are presently involved in connection with Seller’s Business, which as the development of the day before Purchased Assets have executed agreements effectively assigning to Jounce, or have existing obligations under Applicable Law requiring assignment to Jounce of, all inventions made during the Closing Date are those items listed course of and described on Schedule 2.1(f)-1as the result of their association with Jounce, which shall be not less than free from Encumbrances, and obligating each such individual to maintain as confidential the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);Purchased Assets.
(g) Neither Seller nor any of its Affiliates has made a claim against a Third Party alleging that a Third Party is violating or has violated, is infringing or has infringed, or is misappropriating or has misappropriated any Purchased Assets, and, to Seller’s Business as a going concernknowledge, its Franchise Rightsno Purchased Asset is being violated, all of the rights and benefits (but not its obligations infringed, or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);misappropriated by any Third Party.
(h) All claims and rights Seller has maintained intellectual property protection guidelines within its organization and, to Seller’s knowledge, there has not been any unauthorized disclosure of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Businessintellectual property rights, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;any Purchased Know-How, to any Third Party nor any disclosure of Purchased Know-How to any Third Party except under written obligations of confidentiality.
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees has no liabilities with respect to the Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing DateAssets.
Appears in 1 contract
Sources: Asset Purchase and License Amendment Agreement (Jounce Therapeutics, Inc.)
Purchased Assets. Subject to and upon the terms and conditions of this Agreement and excluding the assets of the Acquired Business retained by the Seller as set forth hereinin Section 1.1(b) herein and in SCHEDULE 1.1(A) and the Prepaids IN SCHEDULE 1.1(B) attached hereto, at the Closing "Closing" (as defined in Section 1.5 below) of the transactions contemplated by this Agreement, the Seller shall sell, transfer, convey, sell, assign, transfer assign and deliver to Purchaser the Buyer, and Purchaser the Buyer shall purchasepurchase from the Seller, acquire free and accept clear of all liens and encumbrances, all of Seller’s right, title and interest in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privilegesproperties, rights-of-way , assets and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business business as a going concern, its Franchise Rightsof every kind and nature, all of the rights and benefits (but not its obligations real, personal or liabilities) under its Franchise Agreementsmixed, all intellectual property of Seller used in connection with its businesstangible or intangible, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2wherever located, which includes all potential lease rights Seller may haveare owned, including but not limited options to lease adjacent property leased, licensed or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s the Acquired Business (collectively, the "Assets"), including, without limitation, the following Assets:
(i) all office supplies and similar materials which exist on the "Closing Date" (as defined in Section 1.5 below) and are used in the Acquired Business (the "Supplies");
(ii) all contracts, agreements, leases (including the Real Property Leases as herein defined), arrangements and/or commitments of any kind, whether oral or written, relating to the extent transferable Acquired Business as set forth on SCHEDULE 2.11 attached hereto (the "Contracts");
(iii) all customer lists, files, records and documents (including credit information) relating to Purchaser but excluding any tip credits or income tax credits usable by Seller up customers and vendors of the Acquired Business and all other business, financial and employee books, records, files, documents, reports and correspondence relating to the Closing DateAssets or the Acquired Business (collectively, the "Records");
(iv) all rights of the Seller, if any, under express or implied warranties from the suppliers of the Seller in connection with the Acquired Business;
(v) all furnishings, furniture, fixtures, tools, machinery, equipment and leasehold improvements owned by the Seller and used in the Acquired Business, whether or not reflected as capital assets in the accounting records of the Seller (collectively, the "Fixed Assets"), as set forth on SCHEDULE 2.7; and
(vi) all computers, computer programs, computer databases, hardware and software owned or licensed by the Seller and used in the Acquired Business;
(vii) all municipal, state and federal franchises, licenses, authorizations and permits of the Seller which are necessary to operate or are used in the Acquired Business;
(viii) all claims and rights of Seller related to or arising from the Acquired Business or the Assets; and
(ix) all of the goodwill of the Acquired Business.
Appears in 1 contract
Sources: Asset Purchase Agreement (Stratus Services Group Inc)
Purchased Assets. Subject to and upon On the terms and subject to the conditions set forth hereinof this Agreement, at the Closing Seller shall convey, sell, assign, transfer and deliver to Purchaser and Purchaser Closing:
(i) CMBF shall purchase, acquire and accept from Carlisle Industrial, and Carlisle Industrial shall transfer, sell, assign, convey and deliver to CMBF, free and clear of any Liens (other than Permitted Liens), all of Seller’s its right, title and interest in and to all of Seller’s tangible the assets, properties and intangible assets used, held for use or in any way relating to its Business rights of Carlisle Industrial other than the Carlisle Industrial Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “EasementsCarlisle Industrial Purchased Assets”);
(dii) All machinery (including without limitation all computer hardware used in connection with the operation CMBF shall purchase, acquire and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, suppliesaccept from Carlisle Intangible, and Carlisle Intangible shall transfer, sell, assign, convey and deliver to CMBF, free and clear of any Liens (other corporeal (tangiblethan Permitted Liens), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified Intellectual Property Rights set forth on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n2.3(a)(ii) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working CashCarlisle Intangible Purchased Assets”); and
(piii) All tax credits or CMBF shall purchase, acquire and accept from Carlisle LLC, and Carlisle LLC shall transfer, sell, assign, convey and deliver to CMBF, free and clear of any Liens (other than Permitted Liens), all of its right, title and interest in and to the Intellectual Property Rights set forth on Schedule 2.3(a)(iii) (the “Carlisle LLC Purchased Assets”); and
(iv) CMBF shall purchase, acquire and accept from the Sellers and their Affiliates, and the Sellers shall (and shall cause their applicable Affiliates to) transfer, sell, assign, convey and deliver to CMBF, free and clear of any Liens (other than Permitted Liens), all of their respective rights, titles and interests in and to all of the assets, properties and rights to credits available to Seller of Sellers and their Affiliates not specifically addressed in connection one of the enumerated categories above that are primarily used in the conduct of the Acquired Business, other than the Carlisle Industrial Excluded Assets (such assets, properties and rights, together with the operation of Seller’s Business to Carlisle Industrial Purchased Assets, the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to Carlisle Intangible Purchased Assets and the Closing DateCarlisle LLC Purchased Assets, the “Purchased Assets”).
Appears in 1 contract
Sources: Equity and Asset Purchase Agreement (Carlisle Companies Inc)
Purchased Assets. Subject to and upon On the terms and subject to the conditions set forth hereincontained in this Agreement, at the Closing Buyer shall, or shall cause the applicable Buyer Subsidiary to, purchase, and Seller shall sell, convey, sell, assign, transfer and deliver to Purchaser Buyer, or the applicable Buyer Subsidiary, the following assets that (except to the extent otherwise noted) are used in and Purchaser shall purchasenecessary for the conduct of the operations of the FOP Business (the "Assets"), acquire and accept but excluding all Excluded Assets (as defined in Section 2.2):
(a) All of Seller’s 's right, title and interest in and to the real property owned in fee (the "Owned Real Property") that is identified in Schedule 2.1(a) on which FOP Facilities are located, together with all buildings, fixtures and improvements located thereon (including all construction work-in-progress).
(b) All of Seller's right, title and interest, as lessee or sublessee, in and to the leasehold estates and the related lease or sublease agreements (the "Real Property Leases") respecting land, buildings, fixtures and real property improvements (whether owned or leased) (the "Leased Real Property") identified in Schedule 2.1(b), if any, together with all construction work-in-progress in respect of same.
(c) All of Seller's rights, privileges and easements appurtenant to its ownership of the Owned Real Property or its lease of the Leased Real Property as well as the right, by way of license, easement or the like, to locate certain identified Equipment to be sold hereunder, on other real property all as shown or described more specifically on Schedule 2.1(a), Schedule 2.1(b) or Schedule 2.1(c) (the "Easements").
(d) All of Seller's right, title and interest in and to the agreements, deeds, leases, easements, franchises, licenses, permits and other documents listed on Schedule 2.1(d), including without limitation the real property described therein (collectively, the "Pipeline Rights"), pursuant to which Seller has the right to construct, use, operate, maintain, repair and replace the pipelines, valve boxes, pumps, fittings and other machinery and equipment comprising a portion of the Equipment in, over, under and on the real property described in the documents comprising the Pipeline Rights (the "Pipeline Corridors"); provided that "Pipeline Rights" shall not include the Owned Real Property, Leased Real Property, Real Property Leases or Easements.
(e) All of Seller's right, title and interest in and to fixed or mobile machinery and equipment, as well as similar items of tangible personal property, including, without limitation, vehicle refueling tanks, pumps, pipelines, valve boxes, heating and pumping stations, fittings, trucks, tractors, trailers and other vehicles, tools, furniture and revenue metering equipment (collectively "Equipment") that (i) are not by their nature consumed in the ordinary course of business such that they constitute "Supplies" (as defined below), (ii) are used, owned or leased by Seller as of the Closing Date, (iii) are used exclusively in and necessary for the conduct of the operations of the FOP Facilities and not in the course of the operation of any other business of Seller, and (iv) in the ordinary course of Seller's business either (A) are permanently located at any FOP Facility or otherwise on the Owned Real Property or Leased Real Property, on an Easement or within a Pipeline Corridor for use primarily with the ownership or operation of the FOP Facilities (including Assets temporarily off-site for repair or other purposes), or (B) have historically been part of Seller's centralized or regional maintenance operations for the FOP Facilities, and have been allocated by Seller to the FOP Facilities for purposes of their divestiture. All such items of Equipment (other than furnishings or office equipment) having a net book value of $50,000 or more as of the close of the most recent fiscal quarter ended at least one month prior to the date of this Agreement are identified on Schedule 2.1(e).
(f) All of Seller's right, title and interest in and to inventories of spare parts intended to be consumed in the ordinary course of business, maintenance, shop and office supplies, and other similar items of tangible personal property on hand at any of the FOP Facilities as of the Closing and intended to be consumed in the ordinary course of business, as well as fuel supplies, if any, on hand and stored at any FOP Facility as of the Closing ("Supplies").
(g) All of Seller's right, title and interest in and to all written contracts and agreements specifically and exclusively relating to the FOP Facilities to which Seller is a party at the Closing (the "Assigned Contracts"), including, without limitation, the agreements identified on Schedule 2.1(g), which contains a list of the agreements (i) pursuant to which Seller paid or received $10,000 or more during its last fiscal year or expects to pay or receive $10,000 or more during its current fiscal year or expects to pay or receive an aggregate of $100,000, and (ii) that have a binding remaining term of at least one year which cannot be canceled by Seller without penalty on written notice of 90 days or less. The Assigned Contracts shall also include, without limitation, construction contracts relating to construction work-in-progress at the FOP Facilities; equipment leases (whether operating or capital leases) and installment purchase contracts; contracts or arrangements binding on the FOP Business which restrict the nature of the business activities in which the FOP Business may engage; leases as lessor or sublessor; and oral contracts if, but only if, the same are identified on Schedule 2.1(g). Notwithstanding the foregoing, neither the term "Assigned Contracts" nor Schedule 2.1(g) shall include any of the Pipeline Rights.
(h) All of Seller's right, title and interest in and to all of the Licenses in favor of Seller as of Closing that relate to or are necessary for or used in connection with the operation of the Assets as heretofore operated by Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”all of such Licenses being included on Schedule 2.1(h), including without limitation:except for and to the extent that such Licenses relate to Excluded Assets; provided that such Licenses shall be included within the Assets only to the extent they relate exclusively to the Assets and are lawfully transferable to Buyer.
(ai) The All of Seller's right, title and interest in and to all of the books, records, plans, drawings, instruction manuals and similar items located at the FOP Facilities and which relate exclusively to the FOP Business and the Assets, and other procedural manuals of Seller related primarily to the operation of the Assets, subject to the rights of Seller to make copies of and benefits accruing make non-exclusive use of the same and except to Seller as lessee under any immovable (real) property lease and/or sublease relating the extent such materials are subject to Seller’s Business existing on the date confidentiality or non-disclosure agreements in favor of this Agreement through the Closing Date, each of which third parties whose consent to transfer is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;not obtained.
(bj) All of Seller's right, title and interest, if any, in and to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which unexpired warranties as of the day before Closing that are transferable to Buyer, or the Closing Date are those items listed and described on Schedule 2.1(f)-1applicable Buyer Subsidiary which Seller has received from third parties which relate specifically to the Assets, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaserwarranties set forth in any equipment purchase agreement, an Affiliated franchisor construction agreement, lease agreement, consulting agreement or otherwise)agreement for architectural or engineering services, (including without limitation all of the Seller’s right to do or develop business it being understood that nothing in this paragraph shall be construed as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of representation by Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of that any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);such unexpired warranty remains enforceable.
(k) All of Seller’s 's right, title and interest in and any right to lease advance payments, prepayments, prepaid expenses, deposits and the property identified like (i) made by Seller on its behalf in the ordinary course of business specifically with respect to the Assets prior to the Closing, (ii) which exist as of such Closing, and (iii) with respect to which Buyer will receive the benefit after the Closing (collectively, "Prepayments"), which Prepayments are listed by category and approximate amount in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options 2.1(k) as of the close of the most recent fiscal quarter ended at least one month prior to lease adjacent property or options to purchase the leased premisesdate of this Agreement.
(l) All of Seller’s 's right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, those air pollution control credits related to the extent assignable;FOP Facilities which are identified on Schedule 2.1(l) as included in the Assets.
(m) All domain namesof Seller's right, websites title and interest in and to the right to receive mail and other intellectual property communications addressed to Seller or any of any kind its Affiliates insofar as such mail or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used other communication relates exclusively to the ownership or related to Seller’s Business operation of the Assets or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;the Assumed Liabilities after the Closing.
(n) Except as provided All of Seller's right, title and interest in Section 2.2(cand to those miscellaneous and sundry assets identified by category on Schedule 2.1(n), all claimsif any, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating which assets are ancillary to the payment ownership and operation of taxes other than income taxes) the Assets and all federal, state the FOP Business and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller customarily utilized in connection with the operation of Seller’s Business to the extent transferable to Purchaser therewith but excluding any tip credits or income tax credits usable by Seller up to the Closing Datenot otherwise enumerated above.
Appears in 1 contract
Purchased Assets. Subject to and upon the terms and conditions set forth As used herein, at the Closing Seller term "Purchased Assets" shall convey, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept all of Seller’s right, title and interest in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than include the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitationfollowing assets:
(a) The rights All machinery, equipment, furniture, trade fixtures, office equipment, and benefits accruing to Seller other personal property used or held for use in operating the Restaurants, as lessee under any immovable (realdescribed in Schedule 1.2(a) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date attached hereto (the “Real Property LeaseFF&E”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3);
(b) All rightThe leasehold improvements at the Restaurants, title and interest, if any, subject to leasehold improvements, fixtures, constructions, component parts and other immovable the terms of the respective Assumed Real Property Leases (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”as defined below) and all architectural plans and mechanical drawings related to the Leasehold ImprovementsLease Assignment Agreements (as defined below);
(c) All rightfood products, title paper and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to supplies used in operating the benefit of the Leased PremisesRestaurants, including without limitation those items listed all on-hand inventory of food, beverage and alcohol products at the time of Closing that is in good physical condition and quality, usable and saleable in the ordinary course, not spoiled, damaged or contaminated, and having an expiration date of at least one day after the Closing Date, and all food products, paper and supplies in-transit on Schedule 2.1(c) the Closing Date that were ordered in the normal course of business (collectively, the “Easements”"Inventory");
(d) All machinery The real property leases and/or subleases for the Restaurants, including all amendments, modifications, extensions, assignments, subleases, renewals and supplements thereto (including without limitation all computer hardware used the “Demised Premises”) identified in connection with Schedule 1.2(d) (the operation and maintenance of Seller’s Business“Assumed Real Property Leases”), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on copies of which have been delivered to Purchaser prior to the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”)date hereof;
(e) The rights All contracts and benefits accruing to Seller as lessee under any agreements identified in Schedule 1.2(e) attached hereto, including, without limitation, equipment leases and/or subleases for equipmentand the leasehold interests in such leased equipment and service contracts, machinery, appliances or other corporeal (tangible), movable (personal) property used in operating the operation of its Business Restaurants and assumed by Purchaser (each an “Equipment Lease” and collectively the “Equipment LeasesAssumed Seller’s Contracts”), each copies of which is listed on Schedule 2.1(e)have been delivered to Purchaser prior to Closing;
(f) All of Seller’s inventory in connection with Seller’s Business, which as of telephone and facsimile numbers used solely for the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”)Restaurants;
(g) Seller’s Business as a going concern, its Franchise Rights, all of The computer software licenses held by Seller with respect to the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed Restaurants identified on Schedule 2.1(g), goodwill and other intangible assets 1.2(g) attached hereto (collectively, “Intellectual PropertyAssumed Computer Licenses”);
(h) All claims federal, state and rights of Seller under all agreementslocal governmental permits, contracts, software license agreements, purchase licenses and sale orders and other executory contracts and commitments of Seller arising from or approvals (excluding liquor licenses) relating to its Businessthe Restaurants to the extent such permits, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” licenses and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rightsapprovals, if any, are assignable by Seller;
(i) All licenses, permits, consents, use agreements, approvals, authorizations prepayments and certificates of any Governmental Authority deposits for customer orders received by Seller prior to the extent they relate to Seller’s Business Closing but which orders remain unfilled as of the Closing Date (collectively, the “LicensesPurchaser’s Order Receivables”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All filesrights to indemnification, operating manuals warranties, claims and correspondence pertaining to the Equipment; causes of action of any kind and all customer defenses, counterclaims and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence choses in action relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);Purchased Assets and/or Assumed Liabilities; and
(k) All Change funds for each of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may haveRestaurants, including but register cash tills (the “Change Funds”). Notwithstanding the foregoing, the transfer of the Purchased Assets pursuant to this Agreement shall not limited options include the assumption of any liability related to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title Purchased Assets unless and interest in and to its telephone numbers and the directory advertising for such telephone numbers, except to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related Purchaser expressly assumes that liability pursuant to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Date1.4 below.
Appears in 1 contract
Purchased Assets. Subject to At the Closing and upon the terms and conditions set forth hereinin this Agreement, at the Closing Seller shall conveyhereby sells, selltransfers, assignassigns, transfer conveys, and deliver delivers to Purchaser the Buyer, and Purchaser shall purchasethe Buyer hereby purchases, acquire accepts, and accept all of receives from the Seller, the Seller’s entire right, title title, and interest in and to all of Seller’s tangible and intangible the assets usedof the Seller used exclusively in the Business, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitationincluding:
(ai) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed Inventory set forth on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real2(a)(i)(A) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property LeasePurchased Inventory”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interestSeller’s interest in or rights to, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed Customer Owned Inventory set forth on Schedule 2.1(b2(a)(i)(B) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Transferred Customer Owned Inventory”);
(gii) Seller’s Business as a going concernthe equipment, its Franchise Rightsmachinery, all supplies, tools, parts, office furnishings, furniture, fixtures, trailers and vehicles of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its businessBusiness located at the Premises, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names items listed on Schedule 2.1(g), goodwill and other intangible assets 2(a)(ii) (collectively, the “Intellectual Purchased Tangible Property”);
(hiii) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed the lease set forth on Schedule 2.1(h) 2(a)(iii), and all rights thereunder (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and RecordsTransferred Lease”);
(kiv) All of Seller’s rightthe contracts, title and interest in agreements and any License Agreements (other than the Transferred Lease) set forth on Schedule 2(a)(iv), and all statements of work and customer purchase orders related thereto, all open customer purchase orders relating to the Business, and all rights thereunder, including the right to lease receive payment for services performed, work-in-process, and unbilled receivables related thereto (the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable“Transferred Contracts”);
(mv) All all contracts and covenants of Employees, former employees, independent contractors, sales representatives, and consultants of the Seller with respect to competition, confidentiality, secrecy, Intellectual Property or similar matters, and all rights thereunder;
(vi) the rights to all Intellectual Property used in or necessary for the operation of the Business, including the Navio software and the other Intellectual Property listed on Schedule 2(a)(vi) (the “Transferred Intellectual Property”), but specifically excluding internet domain namesnames and email addresses of the Business and the License Agreements that are not Transferred Contracts (the “Excluded Licenses”);
(vii) all deposits, websites advance payments, and other intellectual property prepaid amounts held by Seller on the Closing Date with respect to any Transferred Contracts, if any (collectively, “Customer Prepaid Amounts”);
(viii) all telephone and facsimile numbers used by or related to the Business;
(ix) all business records of the Seller of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m)relating to the Business, which items are not used or including, without limitation, customer lists and all historic records related to Seller’s Business WMS or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak Houseother inventory management systems;
(nx) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory)indemnities, rights of set off, off and rights of recoupment of Seller (including any such item relating against third persons related to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”)Business;
(oxi) all insurance benefits, including proceeds payable at any time under Seller’s working cashinsurance policies, which shall be $1,000 per restaurant (arising from, or relating to, any of the “Working Cash”)Purchased Assets or Assumed Liabilities; and
(pxii) All tax credits or rights to credits available to the goodwill of the Seller in connection with the operation of Seller’s Business relating to the extent transferable Business. The assets described above in this Section 2(a) are hereinafter collectively referred to Purchaser but excluding as the “Purchased Assets.” Notwithstanding the foregoing, the Buyer is not acquiring any tip credits or income tax credits usable by Seller up to the Closing DateExcluded Assets.
Appears in 1 contract
Sources: Asset Purchase Agreement (Fortress International Group, Inc.)
Purchased Assets. Subject to and upon the terms and conditions set forth of this Agreement and in reliance upon the representations, warranties, covenants and agreements contained herein, at the Closing Seller Closing, the Company shall, and shall conveycause u-Nav Finland to, sell, assignconvey, transfer transfer, assign and deliver to Purchaser Acquirer, and Purchaser Acquirer shall purchasepurchase and acquire from the Sellers (including the Assumed Liabilities), acquire and accept all of Seller’s rightthe Sellers’ respective rights, title and interest in and to all of Seller’s tangible and intangible the following assets used, held for use or in any way relating to its Business other than (excluding the Excluded Assets Assets) to the extent the Sellers own such assets or have any rights, title or interest therein (as hereinafter defined) (referred to hereinafter collectively as collectively, the “Seller’s Assets” or “its Purchased Assets”), including without limitation:):
(a) The rights and benefits accruing to All Seller as lessee under any immovable Intellectual Property, including, but not limited to:
(reali) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is All Seller Registered Intellectual Property listed on Schedule 2.1(a)-1Section 2.10(a) of the Disclosure Schedule;
(ii) All trade secrets of the Sellers’, together including, but not limited to, tools, disks, designs, files, drawings, data and related documentation, and all similar property, tangible or intangible, owned or used in connection with any leases which may be executed on the immovable Business; and
(realiii) property listed on Schedule 2.1(a)-2 All claims (including claims for past infringement or any opportunities to lease that may arise from the date misappropriation of this Agreement through the Closing Date (the “Real Property Lease”Seller Intellectual Property) and any causes of action of the Sellers’ against other Persons (regardless of whether or not such claims and causes of action have been asserted by the Sellers) arising in connection with the Business, and all Franchise Rights rights of indemnity, warranty rights, rights of contribution, rights to refunds, rights of reimbursement and Franchise Agreements listed on Schedule 2.1(a)-3other rights of recovery possessed by the Sellers (regardless of whether such rights are currently exercisable) that have arisen in connection with the conduct of the Business;
(b) All rightrights to ▇▇▇ for or assert claims against and remedies against past, title present or future infringements of any or all of the Seller Intellectual Property owned or used in connection with the Business and interest, if any, rights of priority and protection of interests therein and to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) retain any and all architectural plans and mechanical drawings related to the Leasehold Improvementsamounts therefrom;
(c) All rightother Assets and Properties of the Sellers’ owned or used in connection with the Business, title including, but not limited to:
(i) all backlog orders, accounts receivable, notes receivable and interestother receivables of the Sellers’, if anyincluding, but not limited to, those receivables set forth on Schedule 1.1(c)(i);
(ii) all inventories and work-in-progress of the Sellers’, and all rights to collect from customers (and to retain) all fees and other amounts payable, or that may become payable, to easementsthe Sellers with respect to services performed by, servitudesor products sold by, privilegesthe Sellers on or prior to the Closing Date including, but not limited to, those inventories, works-in-progress, rights-of-way , and fees set forth on Schedule 1.1(c)(ii);
(iii) all equipment, materials, prototypes, tools, supplies, vehicles, furniture, fixtures, improvements and other real tangible assets of the Sellers’ including, but not limited to, the tangible assets set forth on Schedule 1.1(c)(iii);
(iv) all advertising and promotional materials possessed by the Sellers relating to the Business;
(v) all rights of Seller pertaining to the Sellers’ under the Contracts set forth on Schedule 1.1(c)(v);
(vi) the domain names of the Sellers’ set forth on Schedule 1.1(c)(vi);
(vii) all Governmental or accruing Regulatory Authority authorizations held by the Sellers in connection with the conduct of the Business;
(viii) all books, records, files (including all electronic files and back up copies thereof), customer lists and data of the Sellers’ related to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);Business; and
(d) All machinery (including without limitation all computer hardware used goodwill incident to the items listed in connection with the operation and maintenance of Seller’s BusinessSections 1.1(a), kitchen 1.1(b) and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal1.1(c) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);above; and
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or All other corporeal (tangible), movable (personal) property assets used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Atheros Communications Inc)
Purchased Assets. Subject to and upon 1.1.1 On the terms and subject to the conditions set forth hereincontained in this Agreement, at on the Closing Date (as such term is hereinafter defined), Seller shall convey, sell, assign, grant, convey, bargain, set over, transfer and deliver to Purchaser Buyer, and Purchaser Buyer shall purchasepurchase and acquire from Seller, acquire the following assets and accept all properties of Seller’s right, title and interest in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets Seller (as hereinafter defined) (referred to hereinafter collectively as “Seller’s the "Purchased Assets” or “its Assets”"), including without limitationexcept any of the following which are Excluded Assets:
(ai) The rights and benefits accruing to Seller as lessee under any immovable (real) the real property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed described on Schedule 2.1(a)-11.1.1A hereof, together with any leases which may be executed on the immovable (real) all interests in such real property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) leases and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwisecontract rights), all buildings, improvements and other structures located on such real property, all uses, easements and rights-of- way which benefit such real property, and all minerals (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurantsurface and subsurface), including without limitation clays and sands located on, at or below such real property (such assets and properties being collectively referred to herein as the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual "Owned Real Property”");
(hii) All claims all rights, title and rights interest of Seller under all agreementsthe leases or subleases of real property or interests in real property (including mineral, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from sand or relating to its Business, including without limitation those listed clay rights) described on Schedule 2.1(h) 1.1.1B hereof (each an “Assigned Contract” such leases and subleases being collectively referred to herein as the “Assigned Contracts”) "Leases" and all accrued the real property or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority interests in real property leased or subleased under the Leases being collectively referred to herein as the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i"Leased Real Property");
(jiii) All filesall of the assets and properties of Seller of every kind, operating manuals nature and correspondence description which are located at or on any of the Owned Real Property or Leased Real Property, except any such assets or properties which may be disposed of after the date hereof in the ordinary course of business consistent with past practice;
(iv) all of the assets and properties (wherever located) set forth in a detailed list of plant and equipment as of the date of the Balance Sheet (as such term is hereinafter defined) prepared from the accounting records of Seller and attached hereto as Schedule 1.1.1C, and all such assets and properties of the Business as may have been acquired by Seller after the date of the Balance Sheet which would be included on a list prepared in like manner from such accounting records as of the Closing Date, except any such assets or properties which have been or may be disposed of since the date of the Balance Sheet in the ordinary course of business consistent with past practice;
(v) all accounts, notes and other receivables (including, without limitation, amounts due from distributors or customers of the Business) and related deposits, security or collateral therefor arising out of the operations of the Business, as the same shall exist as of the Closing Date;
(vi) all inventories, inventories of parts, raw materials, work in process and finished goods which are held in connection with, or used or held for use in the business and operations of, the Business, except any such assets or properties which may be disposed of after the date hereof in the ordinary course of business consistent with past practice;
(vii) all drawings, blueprints, specifications, designs and data pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”)Purchased Assets;
(kviii) All all technology, know-how, designs, devices, processes, methods, inventions, drawings, schematics, specifications, standards, trade secrets and other proprietary information which are held in connection with, or used or held for use in, the manufacture of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignableclay face brick products;
(mix) All domain namesall patents and applications therefor and the licenses thereto, websites and other intellectual property of all trademarks and tradenames (including, without limitation, "Texas Clay", "Texas Clay Products", "Texas Clay Industries", "Building Better Places, Brick by Brick" and any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(mvariations thereof), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇trademark and tradename registrations, service marks and service m▇▇▇ Steak House;
registrations, copyrights and copyright registrations, the applications therefor and the licenses thereto, which are listed or described on Schedule 1.1.1D hereof (n) Except such assets and properties being hereinafter collectively referred to as provided in Section 2.2(cthe "Business Property Rights"), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection together with the operation of Seller’s Business to goodwill and the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Date.business appurtenant thereto;
Appears in 1 contract
Purchased Assets. Subject to and upon the terms and conditions set forth hereinof this Agreement, at on the Closing Seller shall Date, Sellers will sell, convey, sell, assign, transfer and deliver to Purchaser and Purchaser shall will purchase, acquire receive and accept delivery from Sellers, free and clear of all Liens (other than Permitted Liens), all of Seller’s right, title Sellers’ then existing properties and interest in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business (other than the Excluded Assets (as hereinafter definedAssets) (referred to hereinafter collectively as “Seller’s Assets” of every kind and nature, real, personal or “its Assets”)mixed, including without limitation:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Datetangible or intangible, each of which is listed on Schedule 2.1(a)-1wherever located, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and RecordsPurchased Assets”);
(k) All of Seller’s , including, without limitation, all right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbersSellers in, to and under:
2.1.1 All equipment and physical plant, including, without limitation, furniture, furnishings, trade fixtures, leasehold improvements, computers, servers, telephone equipment and all other owned and leased tangible personal property used in or useful to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified as listed on Schedule 2.1(m2.1.1 attached hereto and incorporated herein by this reference (the “Fixed Assets”), which items schedule will detail the applicable Seller(s) of each Fixed Asset;
2.1.2 All of the assets reflected on the Interim Financial Statement, other than (i) the Excluded Assets and (ii) those assets disposed of after the Interim Financial Statement Date in the ordinary course of business consistent with past practice;
2.1.3 All Intellectual Property Rights owned and used by Sellers in connection with the Business as currently conducted that are not used or related to Seller’s Business or to capable of assignment and that are listed on Schedule 2.1.3 (“IP Assets”) and the goodwill associated therewith, including, without limitation, the trade name “▇▇▇▇ ▇▇▇▇’▇▇▇.”
2.1.4 All of the Contracts, including, without limitation, the Third Person Licenses; provided, however, that Purchaser and BMB will together use good faith efforts to obtain a refund, for the benefit of BMB, of the *** deposit delivered to Thomson Elite pursuant to the Contract with Thomson Elite, as modified by the Addendum thereto dated December 29, 2005;
2.1.5 All rights to payment as a consequence of (i) deposits and prepayments listed on Schedule 2.1.5 attached hereto and incorporated herein by this reference, which schedule will detail the applicable Seller(s) for each deposit or prepayment, and (ii) refunds, rights of set off, rights of recovery, rights to payment or proceeds under contracts of insurance to the extent applicable to an Assumed Liability, and claims or causes of action relating to the Purchased Assets that arise on or after the Closing (except for refunds of Taxes to the extent provided in Section 10.3); provided, however, that nothing in the foregoing will be construed to prevent Seller from asserting any such rights, claims or causes of action as a defense in any legal proceeding;
2.1.6 Cash in an amount equal to the sum of (a) all client retainer balances that have been paid but not applied as of the Closing Date, as set forth in Schedule 2.1.6, and (b) payments received from clients for services that have not been rendered as of the Closing Date, as set forth in Schedule 2.1.6, which schedule will detail the applicable Seller(s) for each such client retainer or payment;
2.1.7 All general intangibles used by or useful to the Business, including, without limitation, all corporate goodwill of Sellers;
2.1.8 All other assets of Sellers used in or useful to the conduct of the Business, whether or not reflected on the books or records of Sellers or the Business;
2.1.9 All creative materials, advertising and promotional materials necessary or used in connection with the Business, wherever stored or located;
2.1.10 Except for the Retained Business Records, all files, documents, correspondence, studies, reports, books and records of Sellers (including all data and other information stored on discs, tapes or other media), client lists, client records and credit data, computer programs, software, and hardware owned and used by Sellers in connection with client matters of the Business that are open as of the Closing Date (collectively, the “Documents”), and
2.1.11 All rights and obligations of BMB under (i) that certain Lease dated December 15, 2003, by and between BMB, as tenant, and ▇▇▇ ▇▇▇▇▇ Steak House;
(n) Except ▇▇▇▇▇▇▇▇▇ Associates, as provided in Section 2.2(c)landlord, all claimsfor the premises at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, security and other deposits▇▇▇▇▇ ▇▇▇▇, prepayments▇▇▇▇▇▇▇▇▇▇, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant ▇▇▇▇▇ (the “Working CashCosta Mesa Lease”); and
(pii) All tax credits or rights that certain Lease dated September 13, 1995, by and between BMB, as tenant, and ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC, as landlord, for the premises at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “San Diego Lease”); and (iii) that certain Lease dated April 24, 2006, by and between BMB as tenant, and Broadway Tower 655, LLC as landlord, for the premises at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ (the “New San Diego Lease”). The Costa Mesa Lease, the San Diego Lease and the New San Diego Lease are collectively referred to credits available to Seller in connection with as the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Date“Office Leases.”
Appears in 1 contract
Sources: Asset Purchase Agreement (Lecg Corp)
Purchased Assets. Subject to and upon the terms and conditions set forth herein, at the Closing Each Seller shall convey, sell, assign, transfer transfer, convey and deliver to Purchaser Buyer, and Purchaser Buyer shall purchasepurchase from such Seller, acquire free and accept clear of all Liens other than Permitted Liens, all of such Seller’s 's right, title and interest in, to and under all of the following assets, properties and rights of such Seller, to the extent that such assets, properties and rights exist as of the Closing Date (other than Excluded Assets) (collectively, the Purchased Assets):
(i) all inventories of spare parts set forth on Schedule 2.1(a)(i) of the Seller Disclosure Schedules, all other inventories of the Business (including inventories of fuel), finished goods, raw materials, work in progress, packaging and supplies (Inventory);
(ii) all Contracts set forth on Part C of Schedule 4.2(b) (collectively, the Assigned Contracts);
(iii) all right, title and interest in and to, to the extent utilized primarily in the operation of the Project, (A) all of Seller’s tangible Intellectual Property and intangible assets used(B) the IT Assets;
(iv) all furniture, held for use or in fixtures, equipment (including any way relating to its Business cars, trucks, fork lifts and other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”industrial vehicles), including without limitation:
machinery, parts and other tangible personal property, in each case, to the extent utilized primarily in the operation of the Project and either (aA) The rights owned by Sellers and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-12.1(a)(iv)-1 (the Owned Tangible Personal Property) or (B) leased by Sellers and listed on Schedule 2.1(a)(iv)-2 (Leased Tangible Personal Property and, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectivelyOwned Tangible Personal Property, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”Tangible Personal Property);
(dv) All machinery (including without limitation all computer hardware used in connection with the operation Owned Real Property, Leased Real Property and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”)Entitled Real Property;
(evi) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipmentall Governmental Approvals, machineryincluding Environmental Approvals, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e4.2(f);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of but only to the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall extent such Governmental Approvals may be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) transferred under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets applicable Law (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor upon request or otherwise), (including without limitation all of application to the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”applicable Governmental Person);
(hvii) All claims all deposits, prepaid expenses, credits, advance payments, security, deposits, charges, sums and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating fees (including pursuant to its Business, including without limitation those listed on Schedule 2.1(h) (each an “any Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed set forth on Schedule 2.1(i2.1(a)(vii);
(jviii) All files, operating manuals all of Sellers’ rights under warranties and correspondence pertaining licenses received from third parties to the Equipment; all customer extent such warranties may be transferred under applicable Law and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records Contract (which financial records shall be certified by Queyrouze)including, business bookswithout limitation, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating upon request or application to the Business or reasonably related to the Business (collectively, the “Books and Records”applicable Person);
(kix) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain namesSellers possess or can readily obtain the same: all operating records, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m)engineering designs, which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c)blueprints, all claimsas-built plans, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set offspecifications, and rights equipment repair, safety, maintenance or service records of recoupment of Seller (including any such item Sellers relating to the payment Project (all of taxes other than income taxes) the foregoing, collectively, Books and all federal, state and local franchise and property tax credits (“Claims”Records);
(ox) Seller’s working cashall rights, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits claims, credits, causes of action or rights to credits available to Seller of set off against third parties held by Sellers in connection with the operation of Seller’s Business the Project, including rights under vendors’ and manufacturers’ warranties, indemnities and guaranties to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up authorized to the Closing Dateextent that such rights, claims, credits, causes of action or rights of set off may be transferred under applicable Law and Contract (including, without limitation, upon request or application to the applicable Person);
(xi) any claims, counterclaims, setoffs, rights of recoupment, equity rights or defenses that Sellers may have with respect to any Assumed Liabilities; and
(xii) all goodwill associated with any of the assets described in the foregoing clauses.
Appears in 1 contract
Sources: Asset Purchase Agreement (Hawaiian Electric Co Inc)
Purchased Assets. Subject to and upon 1.1.1 On the terms and subject to the conditions set forth hereincontained in this Agreement, at the Closing (as such term is hereinafter defined), Seller shall convey, sell, assign, grant, convey, transfer and deliver to Purchaser Buyer, and Purchaser Buyer shall purchasepurchase and acquire from Seller, acquire and accept all of Seller’s rightthe assets and properties of Seller of every kind, title nature and interest in and to all description as are existing as of Seller’s tangible and intangible assets usedthe Closing Date (as hereinafter defined)(wherever located) free of any Encumbrance (as hereafter defined), held for use or in any way relating to its Business other than except the Excluded Assets (as such term is hereinafter defined). The assets and properties to be sold, granted, conveyed, transferred, assigned and delivered by Seller to Buyer hereunder are hereinafter referred to collectively as the “Purchased Assets”. Without limiting the generality of the foregoing, the Purchased Assets shall include, without limitation, the following assets and properties of Seller, (except any of the following which are Excluded Assets):
(i) all accounts, notes, vendor rebates, agency commissions, credit card and other receivables (including, without limitation, amounts due from Seller’s customers whether recorded as accounts, notes, vendor rebate, agency commission, credit card or other receivables or reductions in accounts payable) and related deposits, security or collateral therefor (including, without limitation, recoverable customer deposits of Seller) reflected on the Audited Financial Statements (as hereinafter defined) (referred collectively, the “Purchased Receivables”);
EX10.1 AZZ_ BS Asset Purchase Agreement (Form 8-K Version) (3).DOC
(ii) all machinery, inventories, inventories of parts, computers, furniture, furnishings, fixtures, office supplies and equipment, automobiles, trucks, vehicles, returnable containers, tools and parts, raw materials and work in process;
(iii) all drawings, blueprints, specifications, designs and data of Seller;
(iv) all technology, know-how, designs, devices, processes, methods, inventions, drawings, schematics, specifications, standards, trade secrets and other proprietary information, and all patents and applications therefor;
(v) all right, title and interest of Seller in and to hereinafter collectively as the names “▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ Limited”, “▇▇▇▇▇▇▇▇▇ & Sawle” and all other derivations thereof and all trademarks and trade names, trademark and trade name registrations, service marks and service ▇▇▇▇ registrations, copyrights and copyright registrations relating specifically to such names, the applications therefor and the licenses thereto, together with the goodwill and the business appurtenant thereto;
(vi) all catalogues, brochures, sales literature, promotional material, samples and other selling material of Seller;
(vii) all books and records and all files, documents, papers, agreements, books of account and other records pertaining to the Purchased Assets or to Seller’s Assets” Business (other than those required by law to be retained by Seller, copies of which will be made available to Buyer);
(viii) all right, title and interest of Seller under all contracts, agreements, licenses, leases, sales orders, permits, purchase orders and other commitments (whether oral or written) by which any of the Purchased Assets are bound or affected, or to which Seller is a party or by which it is bound (the “its AssetsContracts”), including without limitation:
any employment contract to which any Transferred Employee (aas hereinafter defined) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date a party (the “Real Property LeaseEmployment Contracts”), and that Buyer has requested be assigned to it pursuant to Section 1.2 hereof;
(ix) The leasehold interest of Seller in and to property known principally as 100 and ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, St. Catharines, Ontario (the “▇▇▇▇▇▇▇▇ Property”) and any leased by the Seller in connection with Business and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, interest of Seller in and benefits of Seller to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on under the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, lease of the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements▇▇▇▇▇▇▇▇ Property;
(cx) All rightall lists of past, title present and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights qualified prospective customers of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”)Seller;
(dxi) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise goodwill relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances Purchased Assets or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern;
(xii) all governmental, its Franchise Rightsestablishment and product licenses and permits, approvals, license and permit applications and license and permit amendment applications which are permitted to be transferred or assigned pursuant to the terms thereof or applicable law;
(xiii) all of claims against third parties, whether or not asserted and whether now existing or hereafter arising, related to the rights and benefits (but not its obligations Business or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets the Purchased Assets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor all claims based on any indemnities or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights warranties in favor of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to any of the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”Assets); and
(pxiv) All tax credits all other assets and rights of every kind and nature, tangible or rights to credits available to Seller intangible, of Seller. Without limiting the generality of the foregoing, the Purchased Assets shall, except as set forth in Section 1.1.2 hereof, include all assets which are held in connection with with, or used or held for use in the operation operations of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable Business, including those set forth in a detailed list of plant and equipment as of the Balance Sheet Date (as such term is hereinafter defined) prepared from the accounting records of Seller and attached hereto as Schedule 1.1.1, and all such assets of Seller as may have been acquired by Seller up to which would be included on a list prepared in like manner from such accounting records as of the Closing Date, except any such assets which may have been disposed of since the Balance Sheet Date in the ordinary course of business on a basis consistent with past practice.
1.1.2 Anything herein contained to the contrary notwithstanding, certain other non-operating assets of Seller (including certain artwork located on the premises of the Business), which are not used in, or relevant to, the Business (collectively the “Excluded Assets”) are specifically excluded from the Purchased Assets and shall be retained by Seller. The Excluded Assets are listed on Schedule 1.1.2 hereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (Azz Inc)
Purchased Assets. Subject to and upon the terms and conditions set forth hereinof this Agreement, at the Closing Closing, the Seller shall sell, convey, selltransfer, assign, transfer assign and deliver to Purchaser Purchaser, and Purchaser shall purchasepurchase and acquire from the Seller, acquire free and accept clear of all Liens other than Permitted Liens, all of the Seller’s right, title and interest in and to (a) all of Seller’s tangible personal property located at the Owned Real Property and intangible assets used, held Leased Real Property; and (b) except for use or in any way relating to its Business other than the Excluded Assets Assets, all assets, properties, leases, rights, claims, and Contracts Related to the Fiber Business, wherever located, of every kind and description, whether real, personal, or mixed, tangible or intangible (as hereinafter defined) (referred to hereinafter collectively as collectively, the “Seller’s Assets” or “its Purchased Assets”), including without limitationthe following:
(ai) The rights all personal property and benefits accruing interests Related to Seller as lessee under any immovable (real) the Fiber Business, including machinery, tooling, designs, molds, furniture, office equipment, computer hardware, communications equipment, supplies, materials, vehicles and other tangible personal property lease and/or sublease relating to and interests therein owned, licensed or leased by the Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on express or implied warranty by the immovable (real) manufacturers or sellers or lessors of any item or component part thereof and all maintenance records and other documents relating thereto, including all such tangible personal property listed set forth on Schedule 2.1(a)-2 2.1(i);
(ii) all books and records necessary to operate the Fiber Business (or in the case of any opportunities to lease such books and records that may arise from are not exclusively used in the date Fiber Business, a copy of this Agreement through the Closing Date (the “Real Property Lease”) such books and records), including any and all Franchise Rights product specifications, developments, improvements, revisions or modifications and Franchise Agreements listed on Schedule 2.1(a)-3all personnel records of the Transferred Employees to the extent permitted by applicable Law;
(biii) All right, title all benefits associated with any pre-paid expenses Related to the Fiber Business (but not any insurance policies or any Tax refunds) and interest, if any, ▇▇▇▇▇ cash up to leasehold improvements, fixtures, constructions, component parts $2,500;
(iv) all goodwill and other immovable intangible properties Related to the Fiber Business;
(realv) property owned by Seller all (A) customer contact lists (including any marketing lists or lists used for the purpose of developing new customers) and located on related contact information, (B) customer pricing lists, (C) vendor contact information, and (D) vendor pricing lists, in each case, utilized in the Leased PremisesFiber Business at any time prior to the date hereof that is in Seller’s possession;
(vi) the Inventory;
(vii) all Proprietary Rights, including without limitation those the trade names “Canadian Harvest,” “OptaSmooth,” “OptaNatural,” “OptaMist,” “OptaGrade” and the other items listed set forth on Schedule 2.1(b2.1(vii) Related to the Fiber Business (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Acquired Intellectual Property”);
(hviii) All claims and all rights of the Seller (A) under all agreements, contracts, software license agreements, Contracts with its customers for the purchase and manufacturing, blending or sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those Fiber Products (x) as specifically listed on Schedule 2.1(h2.1(viii)(A) or (each an “Assigned Contract” and collectively the “Assigned Contracts”y) and all accrued or prepaid advertising rights;
(ithat are not required by their terms to be listed on Schedule 3.10(b) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business as Material Contracts (collectively, the “LicensesSales Contracts”), in each case to (B) under Contracts with its vendors for the extent transferable by the Seller, including without limitation those supply of Inventory (x) as specifically listed on Schedule 2.1(i);
2.1(viii)(B) or (jy) All files, operating manuals and correspondence pertaining that are not required by their terms to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business listed on Schedule 3.10(b) as Material Contracts (collectively, the “Books Vendor Contracts”), (C) under unpaid purchase orders with its vendors issued in the Ordinary Course of Business for the supply of Inventory that has not been received by Seller as of the Closing, including those purchase orders listed on Schedule 2.1(viii)(C) (the “Pending Vendor Purchase Orders”), (D) under customer purchase orders received in the Ordinary Course of Business that have not been invoiced and Recordshave not been fulfilled by the Seller as of the Closing, including those purchase orders listed on Schedule 2.1(viii)(D) (the “Pending Customer Purchase Orders”), (E) under Contracts regarding, concerning, or relating to the Acquired Intellectual Property or other Proprietary Rights (x) as specifically listed on Schedule 2.1(viii)(E) or (y) that are not required by their terms to be listed on Schedule 3.10(b) as Material Contracts (collectively, the “IP Contracts”), (F) to the Leased Real Property pursuant to the Real Estate Leases as specifically listed on Schedule 2.1(viii)(F), (G) under all other Contracts set forth on Schedule 2.1(viii)(G) (the “Listed Contracts”), and (H) under any Contract (excluding all purchase orders) entered into by Seller in the Fiber Business after the date of this Agreement that Purchaser has consented to in writing (the “Other Approved Contracts”) (the Sales Contracts, Vendor Contracts, Pending Vendor Purchase Orders, Pending Customer Purchase Orders, IP Contracts, Real Estate Leases, Listed Contracts, and Other Approved Contracts are sometimes hereinafter referred to, collectively, as the “Assumed Contracts”);
(kix) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.Owned Real Property;
(lA) all accounts, notes and other receivables (including unbilled receivables) arising out of the sale by the Seller of goods, services or products of the Fiber Business, excluding inter-company receivables from Seller or its Affiliates; and (B) any claim, remedy or other right relating to any of the foregoing;
(xi) all rights (including rights of recovery, rights of set off and rights of recoupment), claims, credits, defenses, causes of action (including counterclaims), choses in action and all other rights to bring any Action at law or in equity or to the extent arising out of or relating to any Purchased Asset or any Assumed Liability or Related to the Fiber Business;
(xii) all transferable licenses, governmental authorizations and other Permits Related to the Fiber Business; and (xiii) the computer equipment and other assets listed on Schedule 2.1(xiii). All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items Purchased Assets identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n3.1(b) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available transferred to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up prior to the Closing Date.
Appears in 1 contract
Purchased Assets. Subject to the terms, conditions and upon the terms and conditions set forth hereinother provisions of this Agreement, at the Closing Seller Closing:
(a) ERC shall conveygrant, sell, assign, transfer and deliver to Purchaser PropCo, and Purchaser PropCo shall purchasepurchase from ERC, acquire and accept all of Seller’s right, title and interest limited liability company interests (the “Transferred Landowner Interests”) in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets ERC Subs listed on Exhibit C (as hereinafter defined) (referred to hereinafter collectively as the “Seller’s Assets” or “its AssetsTransferred Landowners”), including without limitation:
free and clear of all Liens and Liabilities encumbering said ownership interests, with the exception of Liens and Liabilities (aif any) The rights and benefits accruing arising from or securing the Project Debt, as restructured pursuant to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;Reorganization Plans.
(b) All rightERC shall grant, title sell, assign, transfer and interestdeliver to DevCo, and DevCo shall purchase from ERC, the Transferred Development Contracts (if any) free and clear of all Liens and Liabilities encumbering ERC’s interests therein with the exception of Liens and Liabilities (if any) arising from or securing the Project Debt, as restructured pursuant to leasehold improvementsthe Reorganization Plans.
(c) ERC shall grant, fixturessell, constructionsassign, component parts transfer and deliver to ManagementCo, and ManagementCo shall purchase from ERC, free and clear of all Liens and Liabilities encumbering ERC’s interests therein, with the exception of Liens and Liabilities (if any) arising from or securing the Project Debt, as restructured pursuant to the Reorganization Plans:
(i) the Transferred Management Contracts (if any);
(ii) the B&R Notes (subject to the terms and conditions of the B&R Note Sharing Agreement);
(iii) all other assets of ERC relating to the Business, other than Excluded Assets and other immovable (real) property than assets owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(bTransferred Landowners (which are being transferred indirectly by PropCo’s acquisition of the Transferred Landowner Interests) (collectively, the “Leasehold ImprovementsOther Transferred Assets” and, together with the Transferred Landowner Interests, the Transferred Development Contracts, the Transferred Management Contracts and the B&R Notes, the “ERC Assets”), including:
(A) cash and all architectural plans and mechanical drawings related cash equivalents in an amount not to the Leasehold Improvementsexceed Ten Million Dollars ($10,000,000);
(cB) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items Contracts listed on Schedule 2.1(cExhibit D (as such Exhibit D may be modified from time to time by Redwood after the Execution Date) (collectively, the “EasementsTransferred Contracts”);
(dC) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipmentfurnishings, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare partssupplies, tools, suppliesmachinery, monitoring and other corporeal (tangible), movable (personal) equipment and other personal property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”)fixed assets;
(eD) The rights all IP, including all data pertaining to Retirement Communities and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal residents thereof (tangibleunless prohibited by Law), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”)all techniques, each of which is listed on Schedule 2.1(e)methodologies, processes, programs, brand standards and analyses related thereto;
(fE) All of Seller’s inventory in connection with Seller’s Businessoriginal books and records, which as including, to the extent permitted by applicable Law, (x) all personnel records for Transferred Employees, and (y) all Organizational Documents and minute books of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”)Transferred Landowners;
(gF) Seller’s Business as a going concernPermits, its Franchise Rights, all to the extent transferrable pursuant to applicable Law;
(G) causes of the action and rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its businessrecovery related thereto, including without limitationavoidance actions arising under the Bankruptcy Code;
(H) insurance policies; and
(I) Employee Plans other than ERC’s Growth Participation Plan.; and
(J) the real property at each of 701, all trademarks703, service marks, rights to computer software, trade secrets (including, without limitation, recipes) 705 and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇▇ Steak House;▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
(nd) Except as provided in Section 2.2(c)Kansas Owner shall grant, sell, assign, transfer and deliver to Redwood Kansas, and Redwood Kansas shall purchase from Kansas Owner, all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes assets of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant Kansas Owner (the “Working Cash”); Kansas Assets” and
(p) All tax credits or rights to credits available to Seller in connection , together with the operation ERC Assets, collectively the “Purchased Assets”) free and clear of Seller’s Business to all Liens, except for the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to Liens securing the Closing DateAssumed Kansas Liabilities.
Appears in 1 contract
Sources: Master Purchase and Sale Agreement
Purchased Assets. Subject On the Closing Date, and subject to the conditions hereinafter set forth, Seller shall sell, and upon Buyer shall buy, all of the terms following assets, properties and conditions set forth hereinrights of Seller (the "Purchased Assets"):
(a) All Authorizations (including the CATV Instruments relating thereto) that relate solely to the operation of the System;
(b) All real property, including, without limitation, all towers, fixtures, leaseholds, licenses, easements, rights-of-way, and other real property interests owned or held by Seller at the Closing Date (as defined in Section 2), but excluding agreements for the attachment of cable plant to third-party poles and through conduit, and used exclusively in connection with the System (collectively, the "Real Property");
(c) All tangible personal property owned by Seller shall conveyat the Closing Date and used exclusively in connection with the System (collectively, sellthe "Personal Property");
(d) All contracts, assignleases of personal property, transfer pole attachment (to the extent assignable) and deliver other agreements, licenses, commitments and understandings exclusively relating to Purchaser the System, other than the CATV Instruments, (i) in effect on the date of this Agreement or (ii) entered into by Seller after the execution of this Agreement which are made in the ordinary course of business consistent with past practice, but excluding any collective bargaining agreements, employment agreements and Purchaser shall purchaseemployee benefit plans (as defined under the Employment Retirement Income Security Act of 1974, acquire as amended ("ERISA"), and accept all those other contracts, leases, agreements, licenses, commitments and understandings set forth on Schedule 1.1(d) as those not to be assigned and assumed (subject to such exception, the "Business Contracts").
(e) All commitments and orders for CATV service to customers to be provided by the System existing at the Closing Date;
(f) All telephone numbers and listings exclusively relating to the System;
(g) All of Seller’s 's right, title and interest in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together manufacturers' warranties with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related respect to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”)Purchased Assets;
(h) All claims and rights of Seller under all agreementsavailable schematics, contractsblueprints, software license agreementsengineering data, purchase and sale orders current customer lists, system maps and other executory contracts and commitments of Seller arising from or technical information exclusively relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rightsSystem;
(i) All licensesother assets of whatever nature and wherever located owned by Seller and exclusively used in connection with the design, permitsconstruction or operation of the System, consents, use agreements, approvals, authorizations which assets shall include all of Seller's books and certificates of any Governmental Authority records or copies thereof relating exclusively to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);System; and
(j) All files, operating manuals and correspondence pertaining Accounts Receivable (as herein defined) of Seller that relate exclusively to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premisesSystem.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Northland Cable Properties Seven Limited Partnership)
Purchased Assets. Subject to and upon the terms and conditions set forth herein, at the Closing Seller shall convey, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept The Purchased Assets are all of Seller’s rightthe assets of Seller used in the Business, title and interest in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitationincluding:
(a) The All of the billboard displays and other out-of-home advertising structures (including rights to walls), including, without limitation, those set forth and benefits accruing to Seller as lessee under any immovable (realdescribed in Schedule 2.2(a) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1attached hereto, together with all components, fixtures, parts, appurtenances, and equipment attached to or made a part thereof that are existing, under construction or for which Seller has any leases which may be executed on rights (collectively, the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3"Structures");
(b) All rightleases, title licenses, easements, other rights of ingress or egress, and interestall other grants of the right to place, if anyconstruct, to leasehold improvementsown, fixturesoperate or maintain the Structures on land, constructions, component parts buildings and other immovable (real) real property owned by Seller third parties, and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) all rights therein (collectively, the “Leasehold Improvements”) "Site Leases"), 2 including, without limitation, those Site Leases listed on Schedule 2.2(b); and all architectural plans state and mechanical drawings related local licenses or permits/tags which Seller has with respect to the Leasehold ImprovementsStructures and, to the extent assignable, all other Governmental Authorizations that are required for the operation of the Structures, (collectively, the "Permits"), including, without limitation, those Permits listed on Schedule 2.2(b);
(c) All rightrights under existing and pending sales and advertising contracts associated with the Structures, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real all rights of Seller pertaining to or accruing to the benefit advertising copy displayed on the Structures as of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) Closing Date (collectively, the “Easements”"Advertising Contracts"), including, without limitation, those Advertising Contracts listed on Schedule 2.2(a) attached hereto;
(d) All machinery pertinent Books and Records;
(including without limitation all computer hardware e) All Intangible Property used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on Business except the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);trade name "Reyn▇▇▇▇"; ▇nd
(f) All rights (including any benefits arising therefrom), causes of Seller’s inventory in connection with Seller’s Businessaction, which as claims and demands of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be whatever nature (whether or not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(gliquidated) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its businessrelating to the Purchased Assets, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) condemnation rights and trade names (whether acquired from Purchaserproceeds, an Affiliated franchisor or otherwise), (including without limitation and all rights against suppliers under warranties covering any of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant)Purchased Assets. Notwithstanding the foregoing, including without limitation the trade names Purchased Assets shall not include the assets listed on Schedule 2.1(g), goodwill and other intangible assets 2.2(x) (collectively, “Intellectual Property”"Excluded Assets");
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Date.
Appears in 1 contract
Purchased Assets. Subject to and upon 1.1.1 On the terms and subject to the conditions set forth hereincontained in this Agreement, at the Closing (as such term is hereinafter defined), Seller shall sell, assign, grant, convey, transfer and deliver to Buyer, and Buyer shall purchase and acquire from Seller, the real property described in clause (xiii) of this Section 1.1.1 and all of the assets and properties of Seller of every kind, nature and description (wherever located) free of any Encumbrance (as hereafter defined) and all indebtedness, including, without limitation, the Seller Indebtedness (as hereafter defined), except the Excluded Assets (as such term is hereinafter defined). The assets and properties to be sold, granted, conveyed, transferred, assigned and delivered by Seller to Buyer hereunder are hereinafter referred to collectively as the “Purchased Assets.” Without limiting the generality of the foregoing, the Purchased Assets shall include, without limitation, the following assets and properties of Seller (except any of the following which are Excluded Assets):
(i) all accounts, notes, vendor rebate, agency commission, credit card and other receivables (including, without limitation, amounts due from Seller’s customers whether recorded as accounts, notes, vendor rebate, agency commission, credit card or other receivables or reductions in accounts payable) and related deposits, security or collateral therefor (including, without limitation, recoverable customer deposits of Seller);
(ii) all machinery, inventories, inventories of parts, computers, furniture, furnishings, fixtures, office supplies and equipment, automobiles, trucks, vehicles, returnable containers, tools and parts, raw materials and work in process;
(iii) all drawings, blueprints, specifications, designs and data of Seller;
(iv) all technology, know-how, designs, devices, processes, methods, inventions, drawings, schematics, specifications, standards, trade secrets and other proprietary information, and all patents and applications therefor;
(v) all right, title and interest of Seller in and to the names “AAA Galvanizers,” “AAA Galvanizing” and all other derivations thereof and all trademarks and trade names, trademark and trade name registrations, service marks and service ▇▇▇▇ registrations, copyrights and copyright registrations relating specifically to such names, the applications therefor and the licenses thereto, together with the goodwill and the business appurtenant thereto; provided, however, Seller may use the name “AAA” and “AAA Industries” in connection with any business that is not a galvanizing business or related to a galvanizing business;
(vi) all catalogues, brochures, sales literature, promotional material, samples and other selling material of Seller;
(vii) all books and records and all files, documents, papers, agreements, books of account and other records pertaining to the Purchased Assets or to Seller’s Business;
(viii) subject to the provisions of Section 1.1.4, all right, title and interest of Seller under all contracts, agreements, leases, sales orders, purchase orders and other commitments (whether oral or written) by which any of the Purchased Assets are bound or affected, or to which Seller is a party or by which it is bound (the “Contracts”), and that Buyer has requested be assigned to it pursuant to Section 1.2 hereof;
(ix) all lists maintained by Seller of past, present and prospective customers of Seller for the period in which the Seller has owned the Business;
(x) all goodwill relating to the Purchased Assets or Business as a going concern;
(xi) to the extent they are transferable, all governmental, establishment and product licenses and permits, approvals, license and permit applications and license and permit amendment applications;
(xii) all claims against third parties, whether or not asserted and whether now existing or hereafter arising, related to the Business or the Purchased Assets (including, without limitation, all claims based on any indemnities or warranties in favor of Seller relating to the Business or any of the Purchased Assets);
(xiii) except for the real property and improvements thereon of Seller located in Cicero, Illinois (the “Cicero Real Property”), all real property owned by Seller, together with all interests in such real property, all buildings, improvements and other structures located on such real property, all uses, easements, appurtenant rights and rights-of-way which benefit such real property and all minerals (including, without limitation, oil, gas, clay, sand and all other surface or subsurface minerals or materials and other substances of any nature however mined or severed) (the “Owned Real Property”); and
(xiv) all right, title and interest of Seller in and to the following domain name: ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, together with the goodwill and the business appurtenant thereto. Without limiting the generality of the foregoing, the Purchased Assets shall, except as set forth in Section 1.1.2 hereof and except for certain machinery, equipment and leasehold improvements which are leased by Seller attached hereto as Schedule 1.1.1(a), include all assets which are held in connection with, or used or held for use in the operations of the Business, including those set forth in a detailed list of plant and equipment as of the Balance Sheet Date (as such term is hereinafter defined) prepared from the accounting records of Seller and attached hereto as Schedule 1.1.1, and all such assets of Seller as may have been acquired by Seller which would be included on a list prepared in like manner from such accounting records as of the Closing Date, except any such assets which may have been disposed of since the Balance Sheet Date in the ordinary course of business on a basis consistent with past practice.
1.1.2 Anything herein contained to the contrary notwithstanding, (i) all of Seller’s cash, (ii) all rights of Seller relating to its joint venture with Zinco Services, SRL, an Italian entity, including cash and assets of the joint venture (which are not included on Seller’s balance sheet), (iii) the Cicero Real Property and Seller’s plant and equipment attributable to the Cicero Real Property (iv) certain other non-operating assets of Seller, which are not used in, or relevant to, the Business, including the minute book and stock transfer records of Seller and (v) Seller’s 2008 Lexus LS460 (collectively, the “Excluded Assets”) are specifically excluded from the Purchased Assets and shall be retained by Seller. The Excluded Assets are listed on Schedule 1.1.2 hereof.
1.1.3 Subject to Section 1.1.4 hereof, at the Closing, Seller shall execute and deliver to Buyer (i) a ▇▇▇▇ of Sale, Assignment and Assumption Agreement, in the form attached hereto as Exhibit A (the “▇▇▇▇ of Sale, Assignment and Assumption Agreement”), under the terms of which Seller shall sell, grant, convey, assign, transfer and deliver the Purchased Assets to Purchaser Buyer, and Purchaser (ii) such other bills of sale, deeds, instruments of assignment and other usual and customary documents as may be requested by Buyer in order to carry out the intentions and purposes hereof, which shall purchaseinclude general warranty deeds in the Form of Exhibit B (the “Deeds”) conveying the Owned Real Property to Buyer.
1.1.4 Notwithstanding the foregoing, acquire this Agreement shall not constitute an agreement to assign or transfer any Contract if an assignment or transfer or an attempt to make such an assignment or transfer without the consent of a third party would constitute a breach or violation thereof or affect adversely the rights of Buyer or Seller thereunder; and accept all any transfer or assignment to Buyer by Seller of Seller’s right, title and any interest in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating such Contract that requires the consent or approval of a third party shall be made subject to Seller’s Business existing such consent or approval being obtained. In the event any such consent or approval is not obtained on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities prior to lease that may arise from the date of this Agreement through the Closing Date (and Buyer waives as of the “Real Property Lease”) Closing Date the condition that such consent or approval be obtained, Seller shall continue to use all reasonable efforts to obtain any such consent or approval after the Closing Date until such time as such consent or approval has been obtained, and Seller will cooperate with Buyer in any lawful and economically feasible arrangement to provide that Buyer shall receive the interest of Seller in all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premisesbenefits under any such Contract, including without limitation those items listed on Schedule 2.1(b) (collectivelyperformance by Seller as agent if economically feasible; provided, however, that Buyer shall undertake to pay or satisfy the “Leasehold Improvements”) corresponding liabilities for the enjoyment of such benefit to the extent Buyer would have been responsible therefor hereunder if such consent or approval had been obtained as of the Closing Date. Seller shall pay and discharge, any and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rightsreasonable out-of-way and other real rights pocket costs of Seller pertaining seeking to obtain or accruing to obtaining any such contractual consent or approval whether before or after the benefit of the Leased PremisesClosing Date; provided, including without limitation those items listed on Schedule 2.1(c) (collectivelyhowever, the “Easements”);
(d) All machinery (including without limitation all computer hardware used such reasonable out-of-pocket costs shall not exceed $5,000. Nothing in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation this Section 1.1.4 shall be deemed a waiver by Buyer of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed right to have received on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day or before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, an effective assignment of all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property Contracts it has requested be assigned to it nor shall this Section 1.1.4 be deemed to constitute an agreement to exclude any Contracts from the terms of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premisesthis Agreement.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Azz Inc)
Purchased Assets. Subject At Closing, Buyer shall purchase and Seller shall sell, transfer, assign and deliver to Buyer for the consideration and upon the terms and conditions hereinafter set forth hereinforth, at all assets of the Closing Seller Fiberoptics Division (the "PURCHASED ASSETS") not otherwise expressly excluded pursuant to Section 1.2 of this Agreement. The Purchased Assets shall conveyinclude, sellbut not be limited to, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept all of Seller’s right, title and interest in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitationfollowing:
(a) The rights All outstanding and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is uncollected accounts and notes receivable listed on Seller's Aged Receivables Report attached hereto as Schedule 2.1(a)-1, together with any leases which may be executed on the immovable 1.1
(reala) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3"ACCOUNTS RECEIVABLE");
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located inventory listed on the Leased Premises, including without limitation those items listed on Inventory Report attached hereto as Schedule 2.1(b1.1
(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements"INVENTORY");
(c) All righttrademarks, title trade names, trade styles and interestlogos (and all goodwill associated therewith), if anyregistered or unregistered, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware applications and registrations therefor used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, suppliesFiberoptics Division, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise all licenses and patents relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) intellectual property used in the operation of its Business (each an “Equipment Lease” Fiberoptics Division and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller telephone numbers used in connection with its businessthe Fiberoptics Division, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, foregoing items including without limitation those listed on Schedule 2.1(h1(c) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rightshereto;
(id) All licenses, permits, consents, use agreements, approvals, authorizations The contracts and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed leases identified on Schedule 2.1(i)1(d) hereto;
(je) All files, operating manuals customer files and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”)Fiberoptics Division; and
(pf) All tax credits or rights to credits available to Seller personal property such as furniture, equipment, tools, machinery used in connection with the operation of Seller’s Business to Fiberoptics Division (the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Date"PERSONAL PROPERTY"), including those items listed on Schedule 1.1(e). EXCEPT AS SPECIFICALLY PROVIDED IN ARTICLE III, SELLER IS SELLING THE PURCHASED ASSETS TO BUYER IN AS IS, WHERE IS CONDITION. ALL WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO THE PURCHASED ASSETS AND THE DIVISION, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED.
Appears in 1 contract
Sources: Asset Purchase Agreement (International Research & Development Corp)
Purchased Assets. Subject to the provisions of this Agreement and upon except as expressly excluded in paragraph (b), the terms Seller agrees to sell and conditions set forth hereinthe Buyer agrees to purchase, at the Closing Seller shall convey(as defined in Section 1.6 hereof), sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept all of Seller’s rightthe properties, title assets and interest in business of the Seller of every kind and to all of Seller’s description, tangible and intangible assets usedintangible, held for use or in any way relating to its Business other than wherever located, as the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing same may exist on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”"Purchased Assets") including without limitation the following:
(i) all of the Seller s inventories of new and all architectural plans and mechanical drawings related to the Leasehold Improvementsused manufactured homes;
(cii) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit all of the Leased PremisesSeller s steps, including without limitation those items listed on Schedule 2.1(c) (collectivelytools, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliancesdecorator kits, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, suppliescomputer hardware and software and other personal property;
(iii) all leasehold improvements and all leasehold interests created by, and other corporeal (tangible), movable (personal) property located on all rights of the Leased Premises or otherwise relating to Seller’s Business, including without limitation Seller under those items leases listed and described on Schedule 2.1(d1.1(a) hereto (collectively, the “Equipment”"Leases");
(eiv) The rights all customer purchase orders, purchase contracts and benefits accruing purchase commitments which are outstanding as of the date of the Closing relating to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation purchase of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e)manufactured homes;
(fv) All of Seller’s inventory in connection with Seller’s Business, which as all of the day before Seller s rights under manufacturer and/or supplier product warranties, guarantees and similar rights and assurances which have been provided with respect to manufactured home inventories and other personal property included among the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”)Purchased Assets;
(gvi) Seller’s Business as a going concern, its Franchise Rights, all of rights with respect to prepaid amounts received by the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority prior to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business Closing under dealer volume incentive or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbersrebate programs, to the extent assignable;that such prepaid amounts relate to manufactured homes included in inventory and purchased by the Buyer at Closing ("Prepaid Volume Incentive Amounts"); 7
(mvii) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets amounts payable following the Closing under the Greentree Financial Retail Volume Bonus Program (including without limitation the Inventory"Greentree Bonus Program"), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment extent that such amounts relate to manufactured homes sold by the Buyer following the Closing (the "Buyer s Pro-Rata Share of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);the Greentree Bonus Amount"):
(oviii) Seller’s working cashall authorizations, which shall be $1,000 per restaurant (consents, approvals, licenses, orders, permits, exemptions, concessions, grants, franchises, filings or registrations issued to the “Working Cash”); and
(p) All tax credits Seller by any governmental authority or rights to credits available to Seller agency in connection with the operation of Seller’s Business the Business, to the extent transferable the same are legally transferable;
(ix) all books, records, manuals and other materials (excluding the Seller s corporate and stock records) related to Purchaser but excluding any tip credits or income tax credits usable by used in connection with the Business or the Purchased Assets, including mailing lists, customer lists, sales contracts and/or orders, marketing materials, market research data and business files; and
(x) all of the Seller up to the Closing Dates goodwill, trade secrets, proprietary information, designs, styles, trademarks, trademark applications, and retail location trade names.
Appears in 1 contract
Sources: Asset Purchase Agreement (Southern Energy Homes Inc)
Purchased Assets. Subject to and upon On the terms and subject to the conditions set forth hereinof this Agreement, Seller shall, at the Closing Seller shall conveyClosing, sell, transfer, convey, assign, transfer grant and deliver to Purchaser and Purchaser shall purchaseshall, at the Closing, purchase and acquire from Seller, free and accept clear of all of Seller’s Liens (except as set forth on Schedule 2.1), all right, title and interest in and to all of Seller’s properties, rights, interests, tangible and intangible assets used, held for use or in any way relating to its Business of Seller (other than the Excluded Assets (as hereinafter definedAssets) (referred to hereinafter collectively as the “Seller’s Assets” or “its Purchased Assets”), including without limitation:
(ai) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3FF&E;
(bii) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold ImprovementsReceivables;
(ciii) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”)all Inventory;
(div) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”)Purchased Contracts;
(ev) The rights all patents, copyrights, trademarks and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances service marks (whether registered or other corporeal (tangibleunregistered), movable all names (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”variations thereof), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed all assumed fictional business names and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its businesstrade names, including without limitation, the items set forth on Schedule 2.1(v) hereto;
(vi) all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant)other Intellectual Property, including without limitation the trade names listed Intellectual Property described on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”2.1(vi);
(hvii) All claims all design tools, order management and rights other management tools, manufacturing tools and test equipment, including laboratory testing equipment, whether located at the facilities of Seller under or the facilities of a third party;
(viii) all agreementsSeller Advance Payments, contractsSeller Customer Deposits, software license agreementsSeller Customer Prepayments and LC Deposits;
(ix) the Leased Real Property;
(x) all Books and Records; provided however that Seller shall be entitled to retain a copy thereof (subject to Section 2 of the Noncompetition Agreement executed by Seller)
(xi) to the extent transferable, purchase and sale orders and other executory contracts and commitments of Seller arising all Licenses from or any Governmental Authority relating to its the operation of the Business;
(xii) all rights in and sponsorship of the Assumed Benefit Plans and any associated funding media, assets, reserves and credits, the benefit of the insurance policies and service agreements in relation to the Assumed Benefit Plans and all Books and Records in connection with the Assumed Benefit Plans;
(xiii) to the extent transferable, all insurance policies held by Seller or that may have been issued to Seller and in effect at any time during Seller’s operation of the Business, including without limitation those listed limitation, on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rightsLeased Real Property, including the right to any proceeds thereunder other than rights under the Sellers Policies covering Excluded Liabilities which shall be paid for the benefit of the Shareholders;
(ixiv) All licensesall guarantees, permitswarranties, consents, use agreements, approvals, authorizations indemnities and certificates similar rights in favor of Seller or any Governmental Authority to of the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i)Purchased Assets;
(jxv) All filesall telephone and facsimile numbers, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Businesspost office boxes, and any correspondence relating to bank accounts but not the Business or reasonably related to the Business (collectively, the “Books and Records”)cash contained therein that is an Excluded Asset;
(kxvi) All of Seller’s rightall domain names and Internet addresses, title and interest in and any right content with respect to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may haveInternet websites, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest such content in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignableelectronic form;
(mxvii) All domain namesall rights, websites and other intellectual property claims, causes of action against any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak HousePerson;
(nxviii) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes goodwill of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”)Business; and
(pxix) All tax credits all other tangible or intangible property, rights and assets of Seller other than Seller Claims. With respect to credits available to Seller any Purchased Asset both (i) of a type not described in connection with clauses (i) through (xviii) above and (ii) not reflected on the operation Closing Date Balance Sheet, if such asset has specifically related Liabilities, Purchaser at its option shall either (x) expressly accept such asset and assume the related Liabilities or (y) reject such asset as a Purchased Asset, in which case it shall remain an asset of Seller’s Business , provided, that in no event shall Purchaser assume or be deemed to the extent transferable to Purchaser but excluding assume any tip credits or income tax credits usable by Seller up to the Closing DateExcluded Liabilities hereunder unless it expressly accepts such asset.
Appears in 1 contract
Purchased Assets. Subject to and upon the terms and conditions set forth herein, at (i) At the Closing Seller (as defined below), Sellers shall convey, and the Shareholder shall cause Sellers to sell, assign, transfer transfer, convey and deliver to Purchaser Buyer and Purchaser Buyer shall purchase, acquire accept and accept purchase all of Seller’s right, title and interest in and to all of Seller’s the assets, properties, rights, interests, claims and goodwill of Sellers, tangible and intangible assets usedintangible, held for use or of every kind and description, as the same shall exist as of the Closing Date (as defined below), including, without limitation, the assets, properties and rights of Sellers reflected in any way relating to its Business other than the Schedule of Purchased Assets attached hereto and labeled Schedule 1.1(a), together with all assets, properties and rights acquired by Sellers of a similar nature since the date of such Schedule, less such assets, properties and rights as may have been disposed of since said date in the ordinary course of business; but specifically excluding the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as the “Seller’s Assets” or “its Purchased Assets”).
(ii) The Purchased Assets include, without limitation, all right, title, and interest in and to all of the assets of Sellers, including without limitation:
all of their (aA) The rights tangible personal property (such as tangible capital machinery and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery equipment (including without limitation all computer hardware used in connection with the operation manufacturing and maintenance of Seller’s Businesswarehousing equipment), kitchen computer and other appliancescommunications equipment, equipmentinventories, raw materials, work in progress, supplies, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal mobile equipment); (tangibleB) intellectual property (including any patent, registered or unregistered trademark or tradename, copyright, franchise, strategic alliance or joint venture), movable goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the laws of all jurisdictions; (personalC) property located on the Leased Premises or otherwise relating leases, (including equipment leases), subleases, and rights thereunder with respect to Seller’s Businessboth real and personal property; (D) accounts, including without limitation those items listed notes, trade and described on Schedule 2.1(d) (collectively, the “Equipment”);
other receivables; (e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipmentpurchase orders, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreementsinstruments, purchase and sale orders commitments for raw materials, goods and other executory contracts services and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority rights thereunder to the extent they relate to Seller’s Business such items can be transferred, assigned, conveyed and/or delivered; (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
E) securities; (jF) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, rebates, discounts earned, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller recoupment;, (including any G) franchises, approvals, permits, licenses, orders, registrations, certificates, variances, and similar rights obtained from governments and governmental agencies to the extent such item items can be transferred, assigned, conveyed and/or delivered; (H) books, records, financial statements, ledgers, accounting systems, files, documents, collateral information, databases, plans, specifications, technical information, websites, electronic data and files, correspondence, pricing schedules, catalogs, advertising and promotional materials, studies, reports, customer and contractor lists, marketing and recruiting processes, employment and training manuals, and other printed or written material relating to the payment of taxes other than income taxes) Purchased Assets and all federalproprietary rights pertaining to such materials; (I) all phone numbers, state domain names and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business social media accounts related to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to Purchased Assets;, and (J) all other tangible and intangible assets of the Closing DateBusiness; provided, however, that the Purchased Assets shall not include the Excluded Assets.
Appears in 1 contract
Purchased Assets. Subject to At the Closing, each of ADL Technology and upon the terms and conditions set forth hereinADL Engineering shall sell, at the Closing Seller shall convey, sell, assign, transfer and deliver to Purchaser Buyer, and Purchaser Buyer shall purchase, acquire acquire, accept and pay for, and LSI shall cause Buyer to purchase, acquire, accept and pay for, all of Sellereach of ADL Technology’s and ADL Engineering’s right, title and interest in and to all of Seller’s tangible the properties, assets and intangible assets used, held for use or in any way relating to its Business other than rights (excluding the Excluded Assets (as hereinafter defineddefined hereinafter)) of each Company, personal or mixed, tangible or intangible (referred to hereinafter collectively as collectively, the “Seller’s Assets” or “its Purchased Assets”). Subject to the immediately preceding sentence, including without limitationthe Purchased Assets shall include the following:
(a) The rights all cash and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date cash equivalents of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) ADL Technology and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3ADL Engineering;
(b) All right, title all Receivables of ADL Technology and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold ImprovementsADL Engineering;
(c) All rightall office, title and interest, if any, to easements, servitudes, privileges, rights-of-way warehouse and other real rights equipment, machinery, leasehold improvements, computers and computer software, vehicles (the “Motor Vehicles”), fixtures, office materials and supplies, spare parts and other tangible (or movable) personal property of Seller pertaining to or accruing to the benefit every kind and description owned as of the Leased PremisesClosing Date by ADL Technology or ADL Engineering, including without limitation those items fixed assets listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with of the operation agreements, contracts and maintenance purchase orders for the sale of Seller’s Business)goods and products by ADL Technology and ADL Engineering and the agreements, kitchen contracts and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items purchase orders listed and described on Schedule 2.1(d) ), and the rights thereunder (collectively, the “EquipmentAssumed Contracts”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights ADL Technology and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of SellerADL Engineering’s right, title and interest in and to its telephone numbers Intellectual Property, including all goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the directory advertising for such telephone numbers, to the extent assignableLaws of all jurisdictions;
(mf) All domain namesall customer files and records of ADL Technology and ADL Engineering, websites including all written technical information, employment records, data, specifications, research and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m)development information, which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak Houseengineering drawings, operating guides and manuals, computer programs, tapes and software;
(ng) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expensescredits, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including other than any such item items relating to the payment of taxes other than income taxesTaxes), whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent;
(h) all of ADL Technology’s and ADL Engineering’s goodwill in and going concern value of each Business;
(i) all federaltelephone numbers, state Internet websites and local franchise domain names and property tax credits advertising used in the Business;
(“Claims”j) all of ADL Technology’s and ADL Engineering’s right, title and interest in the Employee Benefit Plans set forth in Schedule 2.1(j);
(ok) Sellerall of ADL Technology’s working cashand ADL Engineering’s rights to insurance proceeds relating to the Purchased Assets and Assumed Liabilities;
(l) to the extent transferable under applicable Law, which shall be $1,000 per restaurant (the “Working Cash”)all Permits; and
(pm) All tax credits or rights to credits available to Seller in connection with the operation all files, books and records (including computer records) of Seller’s Business ADL Technology and ADL Engineering relating to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Dateforegoing.
Appears in 1 contract
Purchased Assets. Subject to and upon the terms and conditions set forth hereinherein (including, without limitation Section 12.1 hereof), at the Closing each Seller shall convey, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept all of such Seller’s right, title and interest in and to all of such Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (each Seller’s assets being collectively referred to hereinafter collectively as “such Seller’s Assets” or “its Assets”, and all of the Sellers’ assets being collectively referred to hereinafter as the “Assets”), including without limitation:
(a) The rights and benefits accruing to such Seller as lessee under any immovable (real) property lease and/or sublease relating to such Seller’s Business existing on the date of this Agreement through the Closing DateBusiness, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (each a “Real Property Lease” and collectively the “Real Property LeaseLeases”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3options or rights to purchase or otherwise acquire the immovable (real) property that is, or may hereafter become, subject to the Real Property Leases or that is, or may hereafter become, contiguous to such immovable (real) property;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by such Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of such Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s its Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to such Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to such Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable movable
(personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of such Seller’s inventory inventory, including without limitation all perishable and non-perishable meats, fish, poultry, vegetables, and other foodstuffs, beverages, including without limitation all liquor, beer and wine (to the extent the transfer of liquor, beer and wine is not prohibited by applicable law), paper goods, condiments and other items held for sale or consumption in connection with such Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 Business (the “Inventory”);
(g) Such Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its businesssuch Seller, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”)) but expressly excluding the “▇▇▇▇’▇ ▇▇▇▇▇ Steak House” franchise for the Baton Rouge, LA location and the other restaurant interests of ▇▇▇▇▇ in “Ninfa’s Mexican Restaurant”, “T.J. Ribs”, “Ruffino’s” and “Montana’s Rib and Chop House”;
(h) All claims and rights of such Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of such Seller arising from or relating to its Business, including without limitation and those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to such Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be copies, certified by Queyrouze)an officer of such Seller, of all other financial records, business books, records, ledgers, files, documents, business plans, budgets, financial statements, correspondence, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of such Seller’s right, title and interest in and any right to lease the property identified in on Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.;
(l) All of such Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory)warranty rights, rights of set off, and rights of recoupment of such Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);; and
(on) Each Seller’s normal operating level of cash contained in such Seller’s working cashcash banks, which shall be not less than $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ruths Chris Steak House, Inc.)
Purchased Assets. Subject Upon and subject to and upon the terms and conditions set forth hereinprovided in this Agreement, Seller shall, at the Closing Seller shall Closing, convey, sell, assigntransfer, transfer assign and deliver to Purchaser and Purchaser shall purchase, acquire and accept Buyer all of Seller’s 's right, title and interest in and to all of Seller’s tangible its assets and intangible assets usedproperties (real, held for use or in any way relating to its Business other than personal and intangible), including, but not limited to, the items specifically listed and described below and on the schedules attached hereto (but excluding Excluded Assets (as hereinafter definedAssets) (referred to hereinafter collectively as “Seller’s collectively, the "Purchased Assets” or “its Assets”), including without limitation:"):
(a) The rights All merchandise, inventories, materials and benefits accruing supplies of Seller, including items in transit from vendors and also including guaranties and warranties running to the benefit of Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3regard thereto;
(b) All rightcash on hand and at banks, title and interestother cash items of Seller at the close of business on the Closing Date, if any, to leasehold improvements, fixtures, constructions, component parts all receivables and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related accrued payments or obligations which have inured or shall inure to the Leasehold Improvementsbenefit of Seller;
(c) All rightmachinery, title and interestequipment, if anyoffice equipment, to easementsfurniture, servitudescomputers, privilegesleasehold improvements, rights-of-way fixtures, trade fixtures, supplies and other real personal property owned by Seller and rights of Seller pertaining to or accruing to the benefit of the Leased Premisesevery kind and description, including tangible and intangible, and all warranties and guaranties thereto and rights of action of Seller therefor, including, without limitation those items listed limitation, all automobiles, trucks, trailers, automotive equipment and other vehicles owned by Seller, all of which vehicles are described on Schedule 2.1(c) (collectively, the “Easements”);
(d) (reserved)
(e) All machinery (including of the right, title and interest of Seller or its affiliates in and to all Intellectual Property of Seller, including, without limitation limitation, any Web page or HTML site, and any and all computer hardware variations or derivations thereof and in and to all logos, insignias and advertising materials bearing the names "Sunshine" or "Sunshine Promotions," to the name of Seller and all brand names and trademarks and all technology and technical information related to, necessary for or used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies's business, and other corporeal (tangible)all secrecy agreements of Seller or its affiliates with others, movable (personal) property located on the Leased Premises or otherwise including employees, relating to Seller’s Businessdisclosure, including without limitation those items listed and described on Schedule 2.1(d) (collectively, assignment or patenting of any of the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e)foregoing;
(f) All of the right, title and interest of Seller in, to and under all leases, subleases, licenses and/or other occupancy agreements affecting the real property described in Schedule 2.1(d) (individually a "Lease" and collectively, the "Leases"), the estates created thereunder and all improvements, fixtures, affixations and fittings located on the premises covered thereby owned by Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all All of the rights right, title and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property interest of Seller used in connection with its businessand to all agreements, including without limitationcontracts and contract rights, all trademarkspurchase and sales contracts and orders, service markslicense agreements, rights to computer softwarefranchises, booking agreements, trade secrets and barter agreements and all other agreements and contracts relating to or necessary for the operation of Seller's business ("Contracts"), including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor those listed or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed described on Schedule 2.1(g), goodwill ) and other intangible assets (collectively, “Intellectual Property”)to all Governmental Authorizations listed or described on Schedule 5.7;
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, credits and prepaid expensesitems, refunds, causes of action, choses in actionactions, pending litigation, judgments, settlements, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory)rights of set-off, rights of set offrecoupment and demands on others of every kind and nature relating to the Purchased Assets or related to or arising from the operation of Seller's business, whether now existing or hereafter arising;
(i) All original files and rights of recoupment records of Seller (including any such item relating all financial records and computer runs and programs related thereto) pertaining to the payment of taxes other than income taxes) Purchased Assets and all federalother books, state records, files, documents, correspondence, reports and local franchise lists of suppliers and property tax credits customers including, but not limited to, general ledger, all sales and credit records, accountants' working papers, advertising and sales material, literature and personnel and payroll records of Seller (“Claims”provided, however, that Tax Returns may be copies) (the "Records"), to which Seller shall have access pursuant to Section 8.4(a);
(oj) Seller’s working cash, which shall be $1,000 per restaurant (The Seller as a going concern and the “Working Cash”)goodwill thereof; and
(pk) All tax credits other assets, properties, rights and the entire business, of every kind and nature, owned or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable held by Seller up or in which Seller has an interest (except for the Excluded Assets), known or unknown, fixed or unfixed, ▇▇▇▇▇▇ or inchoate, accrued, absolute, contingent or otherwise, whether or not specifically referred to the Closing Datein this Agreement, including, without limitation, all Governmental Authorizations, securities, automobiles, trucks and trailers.
Appears in 1 contract
Purchased Assets. Subject to and Section 2.5, upon the terms and subject to the conditions set forth hereinin this Agreement, at the Closing Closing, Seller and Parent, as applicable (collectively, the “Seller Parties” and each a “Seller Party”), shall convey, sell, assign, transfer transfer, convey and deliver to Purchaser Buyer, and Purchaser B▇▇▇▇ shall purchase, acquire and accept from the Seller Parties, all of Seller’s the Seller Parties’ right, title and interest in in, to and to under all of the following assets of the Seller Parties, in each case free and clear of all Liens other than Permitted Liens (collectively, the “Purchased Assets”):
(i) All Seller Intellectual Property primarily related to the Business, including (A) all media properties, content and archives (including all content owned by Seller (including all newsletters, stories, articles, articles and other editorial content, and message boards/comments) and Seller’s tangible and intangible assets usedrights with respect to any content licensed to Seller (e.g., held for use photographs, graphics, videos, articles, etc.), appearing on any Seller Website or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”publication), records, digital files (including without limitation:
all digital files for digital versions of any publications, and any audio files and/or podcasts, including in each case archival copies thereof), research material, technical information (ain each case, whether such materials are evidenced in writing, electronically, or otherwise) The rights and benefits accruing to (B) the media properties and other assets and Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is Intellectual Property listed on Schedule 2.1(a)-12.1(a) of the Disclosure Letter and (ii) the Seller Intellectual Property embodied in the physical, together with any leases which may be executed on print archives of the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from Men’s Journal, Men’s Fitness and Adventure Sports Network publications and the date content of this Agreement through the Closing Date such printed materials (the “Real Property LeaseTransferred Intellectual Property”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3);
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items Contracts listed on Schedule 2.1(b) of the Disclosure Letter, as such Contracts may be renewed or modified following the Agreement Date in accordance with the Agreement (collectively, the “Leasehold ImprovementsAssumed Contracts”) and all architectural plans and mechanical drawings related to rights of the Leasehold ImprovementsSeller Parties arising thereunder;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”)intentionally deleted;
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business)furniture, kitchen and other appliancesoffice supplies, office equipment, furniturecomputers and laptops, vehiclestrade fixtures and furnishings located at 2▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, smallwares▇▇▇▇▇▇▇▇, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal ▇▇ ▇▇▇▇▇ (tangible), movable (personalthe “Carlsbad Office”) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items as listed and described on Schedule 2.1(d) of the Disclosure Letter (collectively, the “EquipmentTransferred Tangible Assets”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licensescopies of all Books and Records of the Business, permitswhether print or digital, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business including (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business), financial and accounting records, copies of the Assumed Contracts, customer lists, vendor lists, customer files and correspondence, billing and receivables history, marketing materials, media kits, electronic mailing lists, market research and any other document or asset utilized in marketing or publicizing the Business and (ii) all physical, print archives of the Men’s Journal, Men’s Fitness and Adventure Sports Network publications (collectively, the “Transferred Books and Records”);
(kf) All all Seller Data collected or generated through the operation of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may haveBusiness, including but not limited options the Seller Data described on Schedule 2.1(f) of the Disclosure Letter (the “Transferred Data”); provided that Seller shall be entitled to lease adjacent property or options to purchase retain copies of the leased premises.
(l) All of Seller’s right, title Transferred Data as and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignablerequired under Law or under Seller’s document retention policies;
(mg) All domain namesto the extent transferable, websites all rights and other intellectual property of claims under any kind and all transferable warranties extended by suppliers, vendors, contractors, manufacturers and licensors, and rights to refunds or nature used by Seller rebates, in its Business except for those items identified on Schedule 2.1(m), which items each case that are not used or primarily related to Seller’s Business any of the Purchased Assets or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak Housethe Business;
(nh) Except as provided in Section 2.2(cto the extent transferable, those licenses, permits, approvals and authorizations issued by a Governmental Authority that are primarily related to the Business;
(i) intentionally deleted;
(j) such accounts receivable (including notes, book debts and other amounts due or accrued, whether billed or unbilled), prepaid expenses and deposits of the Seller Parties in each case (A) to the extent arising from, related to or in respect of the Business and (B) limited solely to the period from and after the Effective Time, and subject to reconciliation in accordance with Section 3.3 (the “Post-Closing Accounts Receivable”);
(k) all rights under or with respect to any claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties rights of set-off, credit, defenses or counterclaims and guarantees with respect other rights of recoupment, including recoveries by settlement, judgment or otherwise in connection therewith, to the extent exclusively related to the Purchased Assets (or Assumed Liabilities, including without limitation the Inventory), all rights of set off, to seek and rights of recoupment of Seller (including any such item relating obtain injunctive relief and to sue for and recover Losses for infringement to the payment extent exclusively related to the Purchased Assets or Assumed Liabilities and any copyright or trademark opposition Proceedings for the benefit of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”)Business; and
(pl) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business goodwill to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up exclusively related to the Closing DateBusiness (the “Transferred Goodwill”).
Appears in 1 contract
Sources: Asset Purchase Agreement (Arena Group Holdings, Inc.)
Purchased Assets. Subject to and upon the terms and conditions set forth hereinof this Agreement, at the Closing Buyer shall purchase from Seller, and Seller shall convey, sell, assign, transfer and deliver assign to Purchaser and Purchaser shall purchaseBuyer, acquire and accept on the Closing Date (as hereinafter defined), all of Seller’s rightassets related to or used in connection with the operation of the Business, title and interest in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) ), (collectively referred to hereinafter collectively herein as the “Seller’s Assets” or “its Purchased Assets”), including without limitationfree and clear of any and all Liens, other than Permitted Liens, which shall include the following:
(a) The All of Seller’s rights and benefits accruing to Seller as lessee obligations under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed Contracts identified on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable 2.1(a) attached hereto (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (collectively the “Real Property LeaseAssigned Contracts”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3);
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed of Seller’s Accounts Receivable that are identified on Schedule 2.1(b) (collectivelyattached hereto, the “Leasehold Improvements”) and all architectural plans schedules, records and mechanical drawings other documentation related to such Accounts Receivable, including, without limitation, all license fees and maintenance fees owing or to become owing under Assigned Contracts, advance payments, claims for refunds and deposits and other prepaid items existing on the Leasehold ImprovementsClosing Date, and all notes, chattel paper or other documents or instruments evidencing the payment obligations of the account or note debtors;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premisestangible personal property owned by Seller, including without limitation those items listed on the tangible personal property identified in the fixed asset schedule attached hereto as Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery With the exception of confidential personnel records regarding employees (including without limitation except as may be waived in writing by any affected employee), all computer hardware of Seller’s records related to or used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises Business or otherwise relating pertaining to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”)Purchased Assets;
(e) The rights and benefits accruing to Seller as lessee To the extent transferable, the Permits required under any leases and/or subleases for equipmentLaws applicable to or affecting the Business, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each all of which is listed are set forth on Schedule 2.1(e);
(f) All of Seller’s inventory Real Property Leases, Leased Real Property and Leasehold Improvements identified in connection with Seller’s Business, which the real property schedule attached hereto as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”2.1(f);
(g) All Inventory of Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights Proprietary Rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rightsSeller;
(i) All licensesinsurance benefits, permitsincluding rights and proceeds, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority arising from or relating to the extent they relate to Seller’s Business (collectively, Purchased Assets or the “Licenses”), in each case Assumed Liabilities prior to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i)Closing Date;
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies claims of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence Seller against third parties relating to the Business or reasonably related to the Business (collectivelyPurchased Assets, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to whether ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c)or inchoate, all claimsknown or unknown, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”)contingent or non-contingent; and
(pk) All tax credits or rights to credits available to Seller in connection The goodwill associated with the operation of Seller’s Business to Purchased Assets and the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing DateBusiness.
Appears in 1 contract
Sources: Asset Purchase Agreement (Kulicke & Soffa Industries Inc)
Purchased Assets. Subject Pursuant to and upon the terms and subject to the conditions set forth hereinin this Agreement, at on the Closing Date herein below provided for but effective as of the Effective Date, Seller shall hereby agrees to sell, grant, transfer, convey, sell, assign, transfer assign and deliver to Purchaser Buyer, and Purchaser shall purchaseBuyer agrees to purchase and acquire from Seller, acquire and accept all of Seller’s rightthe properties, title assets and interest in and to all of Seller’s tangible and intangible assets rights owned, used, held acquired for use use, or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” arising or “its Assets”), including without limitation:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation Business, whether tangible or intangible, and maintenance of whether or not recorded on Seller’s Businessbooks and records, except for and excluding the Retained Assets provided for in Section 1.2 below (all the foregoing being collectively referred to as the “Purchased Assets”). The Purchased Assets shall include, kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectivelybut not be limited to, the “Equipment”);following:
(eA) The Certain rights of Seller under its occupancy leases covering the premises known as (y) ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Anaheim Lease” and benefits accruing to Seller as lessee under any leases and/or subleases for equipment(z) ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., machinery▇▇▇▇▇ ▇▇▇, appliances or other corporeal ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (tangible), movable (personal) property used in the operation of its Business “Burbank Lease” (each an a “Equipment Facilities Lease” and collectively the “Equipment Facilities Leases”), a true and complete copy of each of which is listed on Facilities Lease being included at Schedule 2.1(e)1.1(A) attached hereto;
(fB) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(gx) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller vehicles used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets the conduct of the Business (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise“Vehicles”), (including without limitation y) furniture, furnishings, fixtures, equipment, machinery, trade fixtures, leasehold improvements, computers, computer discs, telephone systems and security systems (“Equipment”), and (z) supplies, training and course materials, computer training kits and manuals, catalogs, advertising copy and other properties of a similar type used or held for use in the conduct of the Business (“Inventory” and, together with the Vehicles and Equipment, the “Tangible Personal Property”), a listing of all of the which is included at Schedule 1.1(B) attached hereto;
(C) All of Seller’s right (u) telephone and facsimile numbers, (v) permits and other governmental authorizations pertaining to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurantthe Business, to the extent such authorizations may legally be assigned (“Governmental Permits”), including without limitation (w) goodwill with customers, vendors or prospective customers, and all customer lists, relating to the trade names listed on Schedule 2.1(gconduct of the Business (“Goodwill”), goodwill (x) security or similar deposits relating to the Business (“Deposits”), (y) prepaid advertising (inclusive of yellow page advertising), prepaid expenses and other prepayments relating to the conduct of the Business (“Prepayments”), and (z) all other intangible assets relating to the Business or any of the Purchased Assets (collectively, the foregoing being collectively called the “Intellectual Intangible Personal Property”), a listing of all of which is included at Schedule 1.1(C) attached hereto;
(hD) All claims of Seller’s software (including rights under Seller’s software licenses) used in the conduct of the Business (“Software”), but excluding the CMS software otherwise provided for in the Franchise Agreement (as defined in Section 3.5(B)), a listing of the Software being included at Schedule 1.1(D) attached hereto;
(E) All of Seller’s accounts and notes receivable, and other rights to receive payment, from customers, employees or others arising from the conduct of the Business (“Receivables”), a listing of all of which (showing, as to each, the name of the account debtor, the amount owed and an aging schedule thereof) is included at Schedule 1.1(E) attached hereto;
(F) All rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory any agreements or contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
which (i) All licenseswere entered into in the ordinary course of the Business by Seller (excluding those entered into with respect to employment of any person, permitsinsurance agreements and other agreements of a nature and character as relate exclusively to any of the Retained Assets or Retained Liabilities), consents(ii) were entered into in the ordinary course of the Business with customers or prospective customers which benefit the Business from and after the Effective Date, use including, but not limited to, computer training center agreements, approvalsrights to receive payment from customers for services to be performed and invoiced after the Effective Date, authorizations rights to payment with regard to coupon sales and certificates of any Governmental Authority to the extent they relate to Seller’s Business redemptions, PC Club sales, corporate technical club sales or applications, and future training classes (collectively, the “LicensesCustomer Contracts”), and (iii) at the election of Buyer (which Buyer may make by delivery of a writing to Parent at any time before or after the Effective Date), any agreements entered into by Parent for the benefit of the Business consistent with practices employed in each case the operations of other affiliates of the Parent conducting businesses similar to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(pG) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business book and records, books of account, files, invoices, accounting records, and correspondence relating to any of the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Dateforegoing (“Records”).
Appears in 1 contract
Sources: Asset Purchase Agreement (New Horizons Worldwide Inc)
Purchased Assets. Subject to and upon The Purchased Assets shall include the terms and conditions set forth herein, at the Closing Seller shall convey, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept all of Seller’s right, title and interest in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitationfollowing items:
(a) The rights all furniture, fixtures, equipment (including office equipment), machinery, parts, computer hardware, automobiles and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Datetrucks, each of which is listed on Schedule 2.1(a)-1inventory, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any supplies, parts and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3other tangible personal property of Seller (“Tangible Assets”);
(b) All right, title all leasehold interests and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned improvements created by Seller and located on the Leased Premisesall leases, including without limitation those items listed on Schedule 2.1(b) (collectivelycapitalized leases, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvementsof personal property under which Seller is a lessee or lessor;
(c) All rightall trade accounts receivable, title notes receivable, negotiable instruments and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”)chattel paper;
(d) All machinery (including without limitation all computer hardware used deposits and rights with respect thereto in connection with the operation Business and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”)all rebates due from vendors;
(e) The subject to Section 1.5, all contracts, claims and rights (and benefits accruing arising therefrom) relating to Seller as lessee or arising out of the Business, and all rights against suppliers under warranties covering any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in of the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e)Tangible Assets;
(f) All of Seller’s inventory in connection with Seller’s Businessall sales orders and sales contracts, which as purchase orders and purchase contracts, quotations and bids generated by the operation of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”)Business;
(g) Seller’s Business all Intellectual Property (as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used defined in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”Section 5.16);
(h) All claims and rights of Seller under subject to Section 1.5, all agreements, contracts, software license agreements, purchase distribution agreements, sales representative agreements, service agreements, supply agreements, franchise agreements, computer software agreements and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rightstechnical service agreements;
(i) All licensesall customer lists, permits, consents, use agreements, approvals, authorizations customer records and certificates of any Governmental Authority information relating to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i)Business;
(j) All files, operating manuals all books and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectivelyBusiness, the “Books including blueprints, drawings and Records”)other technical papers, payroll, employee benefit, accounts receivable and payable, inventory, maintenance and asset history records, ledgers and books of original entry, all insurance records and Permit files;
(k) All of Seller’s rightall rights in connection with prepaid expenses, title advances and interest in and any right credits with respect to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.Purchased Assets;
(l) All of Seller’s rightall sales and promotional materials, title catalogues and interest in and to its telephone numbers and the directory advertising for such telephone numbers, literature relating to the extent assignableBusiness;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
all transferable Permits (n) Except as provided defined in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”5.9); and
(pn) All tax credits or rights all lock boxes relating to credits available the Business to Seller in connection with the operation of which Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Dateaccount debtors remit payments.
Appears in 1 contract
Sources: Asset Purchase Agreement (Mediware Information Systems Inc)
Purchased Assets. Subject (a) At the Closing, subject to and upon the terms and conditions set forth hereinof this Agreement, at the Closing Seller shall EXACT will sell, convey, sell, assign, transfer and deliver to Purchaser Genzyme, and Purchaser shall purchaseGenzyme will purchase from EXACT, acquire and accept all of SellerEXACT’s rightrights, title and interest interests in and to the following assets (collectively, the “Purchased Assets”):
(i) the Transferred Technology, including all Actions and rights to ▇▇▇ at law or in equity for any past or future infringement or other impairment of any of the Transferred Technology and the right to receive all proceeds and damages therefrom;
(ii) all of SellerEXACT’s tangible rights under the Transferred In-License Agreement and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation:
(a) The rights all contracts and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is licenses listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real2.1(a)(ii) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property LeaseAssigned Contracts”);
(iii) all Supporting Materials;
(iv) all of EXACT’s rights under any confidentiality agreement relating to any of the Purchased Assets; and
(v) all claims of EXACT against Third Parties relating to any Purchased Assets, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or otherwise. Notwithstanding any other provision of this Agreement, the transfer of the Purchased Assets pursuant to this Agreement (the “Sale”) and will not include the assumption of any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;liabilities except those Genzyme expressly assumes pursuant to Section 2.3.
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and assets of EXACT other immovable (real) property owned by Seller and located on than the Leased Premises, including without limitation those items listed on Schedule 2.1(b) Purchased Assets (collectively, the “Leasehold ImprovementsRetained Assets”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit are not part of the Leased PremisesSale, including without limitation those items listed on Schedule 2.1(c) (collectivelyand are not being transferred to Genzyme pursuant to this Agreement. For the avoidance of doubt, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business)Retained Assets include, kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date but are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;limited to:
(i) All licensesall of EXACT’s cash, permits, consents, use agreements, approvals, authorizations cash equivalents and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i)short-term investments;
(jii) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business minute books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising stock records and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”)seals of EXACT;
(kiii) All of Seller’s right, title and interest in and any right to lease the all real property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may haveassets, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All leasehold rights, of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignableEXACT;
(miv) All domain names, websites all of EXACT’s plant and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak Houseequipment;
(nv) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, EXACT’s rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes under contracts other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”)the Assigned Contracts;
(ovi) Sellerall of EXACT’s working cash, which shall be $1,000 per restaurant (the “Working Cash”)personnel records; and
(pvii) All tax credits all Intellectual Property Rights owned or rights in-licensed by EXACT that are not included in the Transferred Technology, including the Patent Rights listed on Schedule 2.1(b)(vii) (plus all Patent Rights first filed after the Effective Date that claim priority (direct or indirect, in whole or in part) to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Datesuch Patent Rights).
Appears in 1 contract
Sources: Collaboration, License and Purchase Agreement (Exact Sciences Corp)
Purchased Assets. Subject to and upon Upon the terms and subject to the conditions set forth hereinof this Agreement, at on the Closing Date, Seller shall conveysell, selltransfer, assign, transfer convey and deliver to Purchaser Buyer, and Purchaser Buyer shall purchasepurchase from Seller, acquire free and accept clear of all of Seller’s Encumbrances (except Permitted Encumbrances), all right, title and interest in of Seller in, to and to under substantially all of Seller’s tangible the assets and intangible assets used, held for use or in any way relating to its Business properties of Seller (other than the Excluded Assets Assets), used in the ownership or operation of the Pharmacies, as the same shall exist on the Closing Date, including the following (as hereinafter defined) (referred to hereinafter collectively as collectively, the “Seller’s Assets” or “its Purchased Assets”), including without limitation:):
(a) The rights Any and benefits accruing to all Seller as lessee under owned personal property located at the Operate Location Pharmacies, including all furniture, fixtures, equipment, leasehold improvements and signage (collectively, the “Personal Property”);
(b) Any and all prescriptions, prescription files and records, customer lists and patient profiles, including refill status reports and insurance coverages, any immovable (real) property lease and/or sublease relating to Seller’s Business existing on files or records maintained electronically, any files or records added between the date of this Agreement through and the Closing Date, in each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on case related to the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) Pharmacies (collectively, the “Leasehold ImprovementsRecords”) and all architectural plans and mechanical drawings related to the Leasehold Improvements);
(c) All rightExcept for the Excluded Inventory, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to all inventory located at the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 Pharmacies (the “Inventory”);
(gd) Seller’s Business All improvements, fixtures, and fittings thereon, and other appurtenants located at any Operate Location Pharmacies (such as a going concernappurtenant rights in and to public streets) including prepaid rent, its Franchise Rightsrent credits and tenant improvement credits and allowances paid or made with respect to the Premises;
(e) Except as expressly set forth in Section 2.2, all of the rights papers, documents, computerized databases and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property records of Seller used in connection with its businessrelating to the Purchased Assets, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipespersonnel, labor relations and workers’ compensation records relating to employees hired by Buyer, DEA records, environmental control records and plans and specifications relating to the buildings, fixtures and other improvements located at the Pharmacies;
(f) Any guarantees, warranties, indemnities and trade names similar rights relating to Purchased Assets;
(whether acquired from Purchaserg) All rights in, an Affiliated franchisor or otherwise), to and under the Assumed Contracts (including without limitation all of the Seller’s right any Security Deposits adjusted for pursuant to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”Section 3.4);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;The Parata Equipment; and
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any Any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably mutually agreeable assets related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premisesPharmacies.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Date.
Appears in 1 contract
Purchased Assets. Subject to and upon Upon the terms and subject to the conditions set forth contained herein, at the Closing Seller Closing, Sellers shall sell, convey, selltransfer, assign, transfer assign and deliver to Purchaser Purchaser, and Purchaser Table of Contents shall purchasepurchase and acquire from Sellers, acquire free and accept clear of all Liens (other than Permitted Liens), all of Seller’s Sellers’ right, title and interest in and to all of Seller’s properties and assets, whether tangible and intangible assets usedor intangible, used or held for use or by Sellers in any way relating to its the conduct of the Business (other than the Excluded Assets (as hereinafter definedAssets) (referred to hereinafter collectively as the “Seller’s Assets” or “its Purchased Assets”). Without limiting the generality of the foregoing, including without limitationthe Purchased Assets shall include all of Sellers’ right, title and interest in and to the following to the extent used or held for use in the conduct of the Business:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3Inventory;
(b) All rightall machinery, title and interest, if any, to leasehold improvementsequipment, fixtures, constructionsfurniture, component parts computers, tools, parts, supplies and other immovable (real) tangible personal property owned by Seller and located on used, or held for use, in connection with the Leased Premisesoperation of the Business, including without limitation those items the equipment and machinery listed on Schedule in Section 2.1(b) (collectively, of the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold ImprovementsSeller Disclosure Schedule;
(c) All the real property identified in Section 2.1(c) of the Seller Disclosure Schedule (“Purchased Real Property”), including, all mines, dumps, impoundments, ▇▇▇▇▇ pads, tailings, buildings, plants, warehouses, railroad tracks, rights of way, easements, facilities and other improvements and fixtures thereon and appurtenances thereto and all mining rights, mineral rights, mineral claims, riparian rights, water rights, water claims, water allocations and water delivery contracts associated therewith;
(d) all accounts receivable of Sellers identified on the Books and Records as of the close of business on the Closing Date other than any Excluded Receivables;
(e) subject to Section 2.2(j), all Contracts (A) that were entered into prior to the filing of the Bankruptcy Cases to which ASARCO is a party that (i) have been assumed by ASARCO prior to the date hereof (the “Assumed Pre-Petition Contracts”) or (ii) are assumed by ASARCO in accordance with Section 2.5 (Contracts referred to in (i) and (ii) collectively referred to herein as, the “Pre-Petition Contracts”), (B) that have been entered into by ASARCO subsequent to the filing by ASARCO of its voluntary petition for relief under Chapter 11 of the Bankruptcy Code, but if entered into after the date hereof, solely to the extent entered into in the Ordinary Course of Business (the “Post-Petition Contracts”), and (C) to which any Non-Debtor Seller is a party on the date hereof or entered into after the date hereof in the Ordinary Course of Business (the “Non-Debtor Contracts”, together with the Pre-Petition Contracts and the Post-Petition Contracts, the “Assumed Contracts”), which may include (to the extent assignable):
(i) all leases, subleases, licenses or other agreements relating to the occupancy of real property identified in Section 2.1(e)(i) of the Seller Disclosure Schedule, together with all of Sellers’ right, title and interestinterest in and to all fixtures and improvements located thereon and all appurtenances, if anyrights, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to interests incidental thereto, leased, subleased, licensed or accruing to occupied by Sellers and used or held for use in the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) Business (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with Leasehold Property,” the operation Leasehold Property and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and Purchased Real Property collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Real Property”);
(hii) All claims all leases of equipment, fixtures, furniture, computers, tools, parts, supplies and other tangible personal property leased by Sellers and used or held Table of Contents for use in the Business and identified in Section 2.1(e)(ii) of the Seller Disclosure Schedule;
(iii) all Contracts with any Transferred Employees, which for clarification shall not include the Collective Bargaining Agreements which are expressly excluded from Assumed Contracts;
(iv) all Contracts through which any computer software system or program is licensed to any Seller;
(v) all Contracts governing Tolling Arrangements with other Persons;
(vi) all Contracts with any customer of any Seller;
(vii) all Contracts with any supplier of any Seller;
(viii) the insurance policies identified in Section 2.1(e)(viii) of the Seller Disclosure Schedule;
(ix) certain Seller Employee Benefit Plans as and to the extent provided in Article VIII, and the assets related thereto;
(x) all confidentiality agreements entered into between ASARCO and any prospective bidder in connection with the transactions contemplated hereunder;
(xi) the leases and other assets assumed pursuant to the Mission Mine Settlement Agreement and the Order of the Bankruptcy Court entered on April 9, 2008 approving the Mission Mine Settlement Agreement, including the Access Agreement executed by certain of the parties to the Mission Mine Settlement Agreement on April 13, 2007 and corresponding Tribal Council Resolution numbers 07-192 and 07-562, and two settlement agreements related to water rights issues in Arizona and the Southern Arizona Water Rights Settlement Agreement that were approved by the Bankruptcy Court in the Order entered under Docket No. 2320;
(xii) all rights of ASARCO under the Hayden Settlement Agreement and the Mission Mine Settlement Agreement, including in respect of those certain trusts created pursuant thereto;
(xiii) all leases of real property identified in Section 2.1(e)(xiii) of the Seller under Disclosure Schedule pursuant to which any Seller is a lessor of any Purchased Real Property;
(xiv) the royalty agreements identified in Section 2.1(e)(xiv) of the Seller Disclosure Schedule;
(xv) the other Contracts identified in Section 2.1(e)(xv) of the Seller Table of Contents Disclosure Schedule;
(xvi) Santa ▇▇▇▇ ▇▇ Agreement and, subject to Section 2.7, Silver ▇▇▇▇ LLC Agreement.
(f) all agreementsprepaid rentals, contractsdeposits, software license agreementssecurity deposits, purchase and sale orders advances and other executory contracts and commitments prepaid expenses of any Seller arising from other than those paid in connection with or relating to its Businessany Excluded Asset;
(g) all motor vehicles identified in Section 2.1(g) of the Seller Disclosure Schedule;
(h) subject to Section 2.7, including without limitation those listed on Schedule 2.1(h) the limited liability company interests of Silver ▇▇▇▇ owned by any Seller (each an “Assigned Contract” and collectively the “Assigned ContractsSilver ▇▇▇▇ Interests”) and all accrued or prepaid advertising rights);
(i) All licensesall copyrights, permitsincluding copyrights in software, consentsand all software and associated documentation developed or owned by Sellers for use in the Business (the “Proprietary Software”), use agreements, approvals, authorizations including all goodwill associated with such Proprietary Software and certificates all rights of Sellers to ▇▇▇ for and receive damages or other relief in respect of any Governmental Authority past infringement or other violation of any rights thereto;
(j) all Patents identified in Section 2.1(j) of the Seller Disclosure Schedule, including all goodwill associated with such Patents and all rights of Sellers to ▇▇▇ for and receive damages or other relief in respect of any past infringement or other violation of any rights thereto;
(k) all Trademarks identified in Section 2.1(k) of the extent they relate to Seller’s Business Seller Disclosure Schedule (collectively, including the name “LicensesASARCO”), including all goodwill associated with such Trademarks and all rights of Sellers to ▇▇▇ for and receive damages or other relief in respect of any past infringement or other violation of any rights thereto;
(l) all Books and Records;
(m) all Permits used or held for use in the operation of the Business and listed in Section 2.1(m) of the Seller Disclosure Schedule, in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent same are assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes rights to any Tax refunds or credits for Taxes related to the ownership or operation of action, choses in action, rights of recovery, warranties and guarantees with respect to the Business or the Purchased Assets and that are attributable to any taxable periods (including without limitation or portions thereof) beginning after the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating Closing Date or that relate to the payment portion of taxes other than income taxesTransaction Taxes paid by Purchaser pursuant to Section 9.1 if (and only if) and Sellers have not borne any Transaction Taxes or Sellers have received refunds or credits of all federal, state and local franchise and property tax credits (“Claims”)Transaction Taxes borne by them pursuant to Section 9.1;
(o) Seller’s working cash, which shall be $1,000 per restaurant (all patented and unpatented mining claims identified in Section 2.1(o) of the “Working Cash”)Seller Disclosure Schedule; andand Table of Contents
(p) All tax credits all rights and claims (whether contingent or rights to credits available to Seller absolute, matured or unmatured and whether in connection with the operation of Seller’s Business tort, contract or otherwise) against any Person relating to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by adversary proceedings listed in Section 2.1(p) of the Seller up to the Closing DateDisclosure Schedule.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Sterlite Industries (India) LTD)
Purchased Assets. Subject to and upon the terms and conditions set forth hereinof this Agreement, at on the Closing Date, Seller shall sell, convey, sell, assign, transfer and deliver to Purchaser Buyer, and Purchaser Buyer shall purchase, acquire and accept all of from Seller’s right, title and interest the following specified assets used by Seller in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its connection with the Business other than (the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation:"PURCHASED ASSETS"):
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) Leasehold interests in real property lease and/or sublease relating to Seller’s Business existing on covered by the date of this Agreement through the Closing DateLeases, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed leasehold improvements located on Schedule 2.1(a)-3such real property;
(b) All rightmachinery, title apparatus, back office equipment, computer hardware and interestequipment (except as expressly excluded in Subsection 2.1.2), if any, to leasehold improvements, furniture and fixtures, constructions, component parts supplies (including merchandise bags and gift boxes) and other immovable (real) personal property of every type owned by Seller and located on used in connection with the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, Business at the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold ImprovementsAcquired Stores;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to Inventory located at the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”)Acquired Stores;
(d) All machinery (including without limitation all computer hardware used of Seller's rights and interests arising under or in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”)Assumed Contracts;
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e)All Prepaid Expenses;
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”)Intellectual Property;
(g) Seller’s Business as a going concernAll books and records and all files, its Franchise Rightsdocuments, all of the rights papers and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), agreements (including without limitation all those contained in computerized media) pertaining to the Purchased Assets or the Assumed Liabilities (excluding the minute and stock record books of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims Customer and rights of Seller under all agreementsvendor records, contractsmailing lists, software license agreementssales materials, purchase advertising materials and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rightsrelated documentation;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates Cash in the amount of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), $250 in each case to of the extent transferable by 25 cash registers located at the Seller, including without limitation those listed on Schedule 2.1(i)Acquired Stores;
(j) All filesof the rights and interests of G.F. ▇▇▇▇▇▇▇▇, operating manuals ▇▇ly▇ ▇▇▇▇▇▇▇▇, ▇▇e GFS Trust and correspondence pertaining to the EquipmentAS Trust arising under or in connection with the Purchased Assets; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);and
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection goodwill associated with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Dateforegoing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Pacific Sunwear of California Inc)
Purchased Assets. Subject to and upon the terms and conditions set forth herein, at the Closing Seller shall convey, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept all of Seller’s All right, title and interest of Seller in those certain assets, rights and to all properties of the Seller which are used in the Seller’s tangible 's confections operations and intangible assets usedattached hereto, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitationincluding:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to All of Seller’s Business existing on the date 's ownership interest, evidenced by Notarial Deeds, of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3Fleer GmbH;
(b) All rightof Seller's ownership interest in Fleer Espanola, title SA and interestDr. Torrents, if anySA, being a fifty (50%) percent interest in each corporation or, to leasehold improvementsthe extent such ownership interest is required to be sold to the other shareholders in Fleer Espanola, fixturesSA or Dr. Torrents, constructionsSA, component parts and other immovable (real) property owned by Seller and located on pursuant to the Leased PremisesBy-Laws of Fleer Espanola, including without limitation those items listed on Schedule 2.1(b) (collectivelySA or Dr. Torrents, the “Leasehold Improvements”) SA, any and all architectural plans and mechanical drawings related to the Leasehold Improvementsproceeds from such sale thereof as determined under said By-Laws;
(c) All rightof the fixed assets owned by Seller and used in connection with the Confection Operations, title including, without limitation, machinery, equipment, computer equipment and interesthardware, if anyfurniture, to easementsfixtures, servitudesleasehold improvements, privilegesoffice furnishings, rights-of-way telephone systems, office supplies and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) equipment wherever located (collectively, the “Easements”)"Fixed Assets") as specifically set forth in this Schedule 1.1;
(d) All machinery tradenames, tradename rights, trademarks (including without limitation all computer hardware used in connection with the operation registrations and maintenance of Seller’s Businessapplications therefor), kitchen and other appliancestrademark rights, equipmentlogos, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, suppliestrade dress, and other corporeal (tangible)goodwill associated therewith, movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed of Seller and described on Schedule 2.1(d) ▇▇▇▇▇ ▇. ▇▇▇▇▇ Corp. (collectively, the “Equipment”)"Trademarks") as specifically set forth on this Schedule 1.1;
(e) The All unexpired leases of the Confection Operations, including equipment leases and any rights to occupy real property, which Buyer shall have assumed in accordance with the applicable provisions of the Bankruptcy Code and benefits accruing thereupon assigned to Seller Buyer pursuant to this Agreement, (collectively, the "Assumed Leases") as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed specifically set forth on this Schedule 2.1(e)1.1;
(f) All of Seller’s inventory in connection with Seller’s Businessthe accounts, which royalties and trade receivables of the Confection Operations, outstanding as of the day before Closing Date, excluding any intercompany or related company accounts (collectively, the Closing Date "Accounts Receivable"), accounts receivable as of February 28, 1998, are those items listed and described set forth on this Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”)1.1;
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of All inventory owned by Seller used in connection with its businesswith, or used to operate, the Confection Operations, including without limitationgoods, all trademarksfinished goods, service marksraw materials, rights to computer softwarepackaging, trade secrets (includingsupplies and personal property, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of wherever located on the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets Closing Date (collectively, “Intellectual Property”the "Inventory"), the types of Inventory as of February 28, 1998 are set forth on this Schedule 1.1;
(h) All claims technology, know-how, processes, projects in development, product formulations, lists of materials and rights of Seller under all agreementssuppliers, contractsmanufacturing methods and procedures, quality control standards and methods, computer software license agreementsmodifications, purchase source codes, enhancements and sale orders derivative works, intellectual property rights, patents, patent applications, patent rights, inventions (whether or not patentable), trade secrets, copyrights (including registrations and applications therefor) and other executory contracts and commitments proprietary information of Seller arising from or relating to its Businessthe Confection Operations which can readily be expressed in written documents (collectively, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights"Technical Information");
(i) All licensesbooks and records, permitsfiles, consentsdocumentation, use agreementscorrespondence, approvalscustomer lists, authorizations all advertising, packaging and certificates promotional materials, business records, financial, tax, manufacturing and purchase records, customers and suppliers lists, repair and warranty records, manuals, literature, production and inventory records, sales records, programs and software related to the Confection Operations, documents relating to the ownership, use, maintenance, or repair of any Governmental Authority to of the extent they relate to Seller’s Business (collectivelyPurchased Assets, the “Licenses”)cost records, inventory records, and copies of all financial, tax, and other books and records that Buyer, in each case its good faith judgment, determines to be necessary for the extent transferable operation of the Confection Operations by Buyer after the Seller, including without limitation those listed on Schedule 2.1(i)Closing Date;
(j) All filesexecutory oral or written contracts and agreements, operating manuals and correspondence pertaining including all of Seller's contract rights with respect to the Equipment; all customer Purchased Assets, sales and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Businesspurchase orders, and any correspondence relating purchased product service and warranty agreements, all of which Seller shall have assumed in accordance with the applicable provisions of the Bankruptcy Code and thereupon assigned to the Business or reasonably related Buyer pursuant to the Business this Agreement, (collectively, the “Books and Records”)"Assumed Contracts") as specifically set forth on this Schedule 1.1;
(k) All of Seller’s rightWhatever rights, title and interest Seller has in any licenses, certificates, permits, computer software and any right programs including source codes (subject to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options of third party licensors) and 800 telephone numbers relating to lease adjacent property or options the Confection Operations to purchase the leased premises.extent the same are transferable;
(l) All of Seller’s right, title advertising and interest in and to its telephone numbers and the directory advertising for such telephone numbers, promotional programs relating to the extent assignableConfection Operations as in effect on the Closing Date;
(m) All domain names, websites goodwill and other intellectual intangible property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak Housethe Confection Operations;
(n) Except as provided in Section 2.2(c)All other assets, all claims, security including prepaid expenses and other depositsassets, prepaymentsas set forth on the February 28, prepaid expenses1998 balance sheet (attached to the Agreement as Exhibit 2.3(d)) and/or the Closing Date Balance Sheet of the Confection Operations. All other assets, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, properties and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which are not specifically set forth in this Schedule 1.1 as Purchased Assets shall be $1,000 per restaurant retained by Seller and not transferred hereunder (the “Working Cash”"Excluded Assets"); and
(p) All tax credits or rights to credits available to Seller in connection with , including, but not limited to, the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Date.following:
Appears in 1 contract
Sources: Asset Purchase Agreement (Marvel Entertainment Group Inc)
Purchased Assets. Subject to and upon Upon the terms and subject to the conditions set forth hereinof this Agreement, at the Closing and effective as of the Effective Time, Seller shall convey, sell, assignconvey, transfer and deliver assign to Purchaser Purchaser, free and clear of all Liens except Permitted Liens, and Purchaser shall purchase, acquire purchase and accept from the Seller, effective as of the Effective Time, all of the Seller’s rightrights, interest and title and interest in and to the following assets, properties and rights, whether owned, leased or licensed by the Seller, but excluding in all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than cases the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as collectively, the “Seller’s Assets” or “its Purchased Assets”), including without limitation:):
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Dateall fixed assets, each of which is listed on Schedule 2.1(a)-1including machinery, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All rightequipment, title and interesttools, if anyspare parts, to leasehold improvementswarehouse supplies, furniture, furnishings, fixtures, constructionsoffice equipment, component parts telecommunications equipment, computer systems, motor vehicles, mobile equipment, rolling stock and other immovable (real) tangible personal property owned by Seller and located on used or held for use in connection with the Leased Premisesconduct of the Business, including without limitation those the items listed on or described in Schedule 2.1(b1.1(a) (collectively, the “Leasehold ImprovementsOwned Personal Property”);
(b) all trade and merchandise inventories used or held for use in connection with the Business (wherever located), including all architectural plans finished goods, all goods held for sale, all work in process, materials, spare parts, components, accessories, supplies, packaging materials, raw materials and mechanical drawings related items and including prepaid in-transit and prepaid on-order inventories (the “Inventory”), but excluding any Excluded Inventory removed from the Premises by the Seller pursuant to the Leasehold ImprovementsSection 2.3(c);
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit all of the Leased PremisesSeller’s interests in (i) the Contracts, including without limitation those items listed each of the Contracts set forth on Schedule 2.1(c1.1(c), (ii) orders to purchase Inventory or acquire services from the Business placed by customers of the Business, which are outstanding as of the Effective Time, and (iii) orders to purchase supplies or other goods for use in the Business by the Seller which are outstanding as of the Effective Time (collectively, the “EasementsAssumed Contracts”);
(d) All machinery all records (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personalthan Excluded Records) property located on the Leased Premises or otherwise relating to Seller’s the Purchased Assets and the Business, including without limitation those items listed related to purchases and described on Schedule 2.1(d) sales of Inventory made by the Seller, compliance with building codes and other governmental permits, orders or requirements; to the Assumed Liabilities and all customer lists, customer, subcontractor and supplier files, asset ledgers, financial records, Inventory records, catalogs, warranty documents, consulting studies relating to the Business and copies of all personnel files related to Continuing Employees, to the extent permitted by Applicable Law (collectively, the “EquipmentFiles and Records”);
(e) The to the extent transferable or assignable by their terms and pursuant to Applicable Law, all licenses, permits, approvals, authorizations, registrations, certificates, variances or similar rights and benefits accruing to Seller as lessee under issued by any leases and/or subleases Governmental Authority for equipmentthe Business, machinery, appliances or other corporeal including those set forth on Schedule 1.1(e) (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment LeasesAssigned Permits”), each of which is listed on Schedule 2.1(e);
(f) All all accounts receivable of the Business (including all retainage and holdbacks owed to the Seller’s inventory in connection with Seller’s Business, which ) outstanding as of the day before Effective Time, including, to the Closing Date are extent not paid as of the Effective Time, those items listed and described set forth on Schedule 2.1(f)-1, which shall be not less than 3.3(c) of the minimum inventory levels as listed and described on Schedule 2.1(f)-2 Seller’s Disclosure Letter (the “InventoryAccounts Receivable”);
(g) Seller’s Business as a going concernall usable and transferable prepayments, its Franchise Rights, all of prepaid expenses and deposits paid by the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its businessrespect to the Business, including without limitationlease, all trademarks, service marks, rights to computer software, trade secrets security and utility deposits and prepayments under any Assumed Contract;
(including, without limitation, recipesh) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s rights to discounts, credits and rebates under any vendor incentive program benefits, in each case which accrued prior to, but remain unpaid as of, the Closing Date;
(i) the right to do bill for and collect on any unbilled revenue of the Business;
(j) all rights of the Seller under non-disclosure or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurantconfidentiality, Intellectual Property assignment, non-compete, or non-solicitation agreements with Employees or with third parties to the extent related to the Business, Purchased Assets or Employees;
(k) all claims of the Seller against third parties arising from or relating to the Business, the Purchased Assets or the Assumed Liabilities (including rights and proceeds arising therefrom and rights or claims to payments to the extent primarily related to the Purchased Assets under any Seller Insurance Policies);
(l) all Intellectual Property owned, licensed, used or held for use by the Seller in connection with the operation of the Business, including without limitation the trade names listed websites, domain names, software and tradenames set forth on Schedule 2.1(g), goodwill and other intangible assets 3.14(a) of the Seller’s Disclosure Letter (collectively, the “Seller Intellectual Property”);
(hm) All claims all advertising, marketing and rights of Seller under promotional materials and all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from printed or relating to its Businesswritten materials, including without limitation those listed on Schedule 2.1(h) website content (each an “Assigned Contract” and collectively including all of the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, or the “Licenses”Owner’s rights to any content developed by the Seller or the Owner and posted to a third-party website), in each case social media accounts and telephone numbers that are related to the extent transferable or used by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak Housethe conduct of the Business;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item goodwill relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);Business; and
(o) Seller’s working cashall other assets or interests (other than Excluded Assets) to which the Seller or any Affiliate thereof has any right by ownership, use or otherwise or in which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits Seller has a conveyable or rights to credits available to Seller in connection with assignable interest on the operation of Seller’s Business Closing Date and which relate to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing DateBusiness.
Appears in 1 contract
Purchased Assets. Subject to and upon the terms and conditions set forth herein, at the Closing Seller shall convey, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept The Purchased Assets are all of Seller’s rightthe assets of Sellers used in the Business, title and interest in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitationincluding:
(a) The All of the billboard displays and other out-of-home advertising structures (including rights to walls) set forth and benefits accruing to Seller as lessee under any immovable (realdescribed in Schedule 2.2(a) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1attached hereto, together with all components, fixtures, parts, appurtenances, and equipment attached to or made a part thereof that are existing, under construction or for which Sellers have any leases which may be executed on rights (collectively, the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;"Structures"); 6
(b) All rightleases, title licenses, easements, other rights of ingress or egress, and interestall other grants of the right to place, if anyconstruct, to leasehold improvementsown, fixturesoperate or maintain the Structures on land, constructions, component parts buildings and other immovable (real) real property owned by Seller third parties, and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) all rights therein (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements"Site Leases"), which Site Leases are listed on Schedule 2.2(b);
(c) All rightof the real property owned in fee by Sellers and any rights therein, title and interestall buildings, if anyfacilities, to easementsstructures, servitudesfixtures, privileges, rights-of-way leasehold and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premisesimprovements located therein, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”2.2(c);
(d) All machinery (including without limitation all computer hardware used in connection rights under existing and pending sales and advertising contracts associated with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, suppliesStructures, and other corporeal (tangible), movable (personal) property located all rights to the advertising copy displayed on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) Structures as of the Closing Date (collectively, the “Equipment”"Advertising Contracts"), which Advertising Contracts are listed on Schedule 2.2(d) attached hereto;
(e) The rights All state and benefits accruing local licenses or permits/tags which Sellers have with respect to Seller as lessee under any leases and/or subleases the Structures and, to the extent assignable, all other Governmental Authorizations that are required for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business the Structures, (each an “Equipment Lease” and collectively collectively, the “Equipment Leases”"Permits"), each of which is Permits are listed on Schedule 2.1(e2.2(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed pertinent Books and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”)Records;
(g) Seller’s Business as a going concernAll tangible personal property, its Franchise Rightsincluding furniture, all vehicles, equipment, computer hardware and software, owned by Sellers and used in the operation of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”)Business;
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively Intangible Property used in connection with the “Assigned Contracts”) and all accrued or prepaid advertising rights;Business except the tradename Villepigue; and
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of rights (including any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”benefits arising therefrom), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights claims and demands of recovery, warranties and guarantees with respect to Purchased Assets whatever nature (including without limitation the Inventory), rights whether or not liquidated) of set off, and rights of recoupment of Seller (including any such item Sellers relating to the payment of taxes other than income taxes) Purchased Assets, including, without limitation, condemnation rights and proceeds, and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (rights against suppliers under warranties covering any of the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing DatePurchased Assets.
Appears in 1 contract
Purchased Assets. Subject to and upon the terms and conditions set forth hereinof this Agreement, at the Closing Seller shall convey, agrees to sell, assign, assign and transfer and deliver to the Purchaser and the Purchaser shall purchase, acquire and accept agrees to purchase from the Seller all of Seller’s rightthe property, title assets and interest in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business rights (other than the Excluded Assets as specified in Section 1.2) of the Seller's Yacht World Division business (as hereinafter definedthe "Business"). The assets to be purchased (the "Purchased Assets") (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitationinclude the following:
(a) The rights the equipment leases, conditional sales contracts, title retention agreements and benefits accruing to other agreements between the Seller as lessee under any immovable (real) property lease and/or sublease and third parties relating to Seller’s computer hardware and equipment used exclusively by Seller in connection with the Business existing on the date of described in Schedule 1.1(a) to this Agreement through (the Closing Date, each "Assumed Equipment Leases") and the full benefit of which is listed on Schedule 2.1(a)-1, together with all service contracts relating to any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 Assumed Equipment Leases or any opportunities to lease that may arise from equipment or assets covered by the date of this Agreement through the Closing Date (the “Real Property Lease”) and any Assumed Equipment Leases and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3options, including options to purchase, under Assumed Equipment Leases;
(b) All rightexcept for the fixtures, title furniture, and interestfurnishings currently used by personnel of the Business, if anyall fixed assets, to leasehold improvementsmachines, machinery, equipment, fixtures, constructionsfurniture, component parts furnishings, goods, chattels, and other immovable (real) tangible property of all kinds owned by Seller and located on used exclusively in the Leased PremisesBusiness (the "Fixed Assets"), including including, without limitation limitation, those items listed on described in Schedule 2.1(b1.1(b) (collectivelyto this Agreement, the “Leasehold Improvements”) and all architectural plans inventories and mechanical drawings related to supplies used exclusively in the Leasehold ImprovementsBusiness;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit goodwill of the Leased PremisesBusiness, including including, without limitation those items listed on Schedule 2.1(c) (collectivelylimitation, the “Easements”)exclusive right to use the domain name, e-mail addresses, telephone lines and telephone numbers currently used by the Seller exclusively in connection with the Business;
(d) All machinery all trade marks, trade names and service marks, copyrights, patents or patent rights (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Businesspatents pending), kitchen logos and designs, trade secrets, technical information, know-how (whether confidential or otherwise), software and other appliancesintellectual property (including applications for any of these) (collectively the "Intellectual Property") owned by the Seller, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, suppliesused exclusively in the Business, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”1.1(d);
(e) The Seller' rights under those contracts, agreements, real and benefits accruing to Seller as lessee under any leases and/or subleases for equipmentpersonal property leases, machinerycommitments, appliances entitlements and engagements whether written or other corporeal oral (tangible), movable (personal"Contracts") property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller customers in connection with the operation of Seller’s Business to be assumed by Purchaser, whether written or oral (the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Date."Assumed Contracts"), a list of which is attached as Schedule 1.1
Appears in 1 contract
Purchased Assets. Subject to and upon Upon the terms and subject to the conditions set forth hereinof this Agreement, at the Closing Seller Closing, Sellers shall convey, selltransfer, assign, transfer convey and deliver to Purchaser Purchaser, and Purchaser shall purchase, acquire free and accept clear of all Encumbrances (other than Permitted Liens and other than claims of Seller’s third parties under the Assigned Contracts based on, related to or in connection with circumstances occurring prior to the Closing Date, which the parties acknowledge and agree are Excluded Liabilities), the Purchased Assets. The term “Purchased Assets” means, collectively, all right, title and interest in of Sellers in, to and to under the following assets only (and, for purposes of clarity, shall not include the Excluded Assets): (a) all of Seller’s tangible the personal property owned by Sellers and intangible assets used, held used (or allocated for use or use) in any way relating to its the Business other than (i) located at the Excluded Assets Leased Premises (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”defined in Section 5.6(b)), including laboratory equipment, accessories, machinery, apparatus, furniture, fixtures, computer hardware and office equipment, including, without limitation:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed those items identified on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable 2.1(a)(i) attached hereto and (realii) property listed located in California and Wisconsin and identified on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”2.1(a)(ii) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
attached hereto; (b) All rightall inventory, title work-in-process, and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned supplies maintained by Seller and located on Sellers at the Leased PremisesPremises in connection with the Business, including including, without limitation those items limitation, such inventory, work-in-process and supplies listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
attached hereto; -7- (c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items all Governmental Authorizations listed on Schedule 2.1(c) (collectively, the “Easements”);
attached hereto; (d) All machinery all of Sellers’ rights under the Business Contracts (including without limitation all computer hardware used as defined in connection with the operation and maintenance of Seller’s BusinessSection 5.16(a)), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, suppliesincluding the Existing Lease (which shall constitute a “Business Contract” as defined herein), and other corporeal all of Sellers’ rights under the Joint Contracts (tangibleas defined in Section 5.16(a), movable (personal) property located on solely as such rights apply to the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed in each case as such rights apply under the Business Contracts and described on Schedule 2.1(d) (collectively, the “Equipment”);
Joint Contracts from and after the Closing Date; (e) The rights all of Sellers’ Intellectual Property Rights, telephone and benefits accruing telecopy listings with respect to Seller as lessee under any leases and/or subleases for equipmentthe Leased Premises, machinery, appliances or other corporeal (tangible), movable (personal) property used in and going concern value and goodwill related to the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
Business; (f) All of Seller’s inventory in connection with Seller’s respect to the Business, which any and all past and pending documents of sales and service information, customer lead lists, customer lists (including the Customer List, as defined in Section 5.18), payor and supplier lists, inventory cost records, machinery and equipment records, mailing lists, sales and purchasing materials, quality control records and procedures, standard operating procedures, analytical methods, validation documents and reports, books of account, customer records and records quotations, purchase orders, sales, brochures, advertising materials, samples, display materials, and all files related to the day before Business on the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than Business’ server (including the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”ComplyID library);
; (g) Seller’s Business as a going concernall claims of Sellers against third parties relating to the Purchased Assets, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant)or inchoate, including without limitation known or unknown, contingent or non-contingent, to the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
extent arising after the Closing Date; (h) All claims and all rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or Sellers relating to its Businessdeposits and prepaid expenses relating to the Purchased Assets, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” the security deposit with respect to the Existing Lease; and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations all warranties (express and certificates of implied) that continue in effect with respect to any Governmental Authority to the extent they relate to Seller’s Business Purchased Asset (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies consent of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxesa third party) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to based on a claim arising after the Closing Date. 2.2.
Appears in 1 contract
Sources: Asset Purchase Agreement
Purchased Assets. Subject to and upon the terms and conditions set forth herein, at the Closing Seller shall convey, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept The Purchased Assets are all of Seller’s rightthe assets of Seller used in the Business, title and interest in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitationincluding:
(a) The All of the billboard displays and other out-of-home advertising structures (including rights to walls), including, without limitation, those set forth and benefits accruing described in Schedule 2.2(a) attached hereto, together with all components, fixtures, parts, appurtenances, and equipment attached to or made a part thereof that are existing, under construction or for which Seller as lessee under has any immovable rights (real) property lease and/or sublease relating collectively, the "Structures"); and all state and local licenses or permits/tags which Seller has with respect to Seller’s Business existing on the date Structures and, to the extent assignable, all other Governmental Authorizations that are required for the operation of this Agreement through the Closing DateStructures, each of which is (collectively, the "Permits"), including, without limitation, those Permits listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-32.2(a);
(b) All rightleases, title licenses, easements, other rights of ingress or egress, and interestall other grants of the right to place, if anyconstruct, to leasehold improvementsown, fixturesoperate or maintain the Structures on land, constructions, component parts buildings and other immovable (real) real property owned by Seller third parties, and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) all rights therein (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements"Site Leases"), including, without limitation, those Site Leases listed on Schedule 2.2(b);
(c) All rightrights under existing and pending sales and advertising contracts associated with the Structures, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real all rights of Seller pertaining to or accruing to the benefit advertising copy displayed on the Structures as of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) Closing Date (collectively, the “Easements”"Advertising Contracts"), including, without limitation, those Advertising Contracts listed on Schedule 2.2(c) attached hereto;
(d) All machinery rights and interests in joint venture arrangements, however organized, engaged in the outdoor advertising business (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business"Joint Venture Agreements"), kitchen and other appliancesincluding, equipmentwithout limitation, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items Joint Venture Agreements listed and described on Schedule 2.1(d) 2.2 (collectively, the “Equipment”d);
(e) The All rights and benefits accruing interests in agreements to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal manage structures on behalf of third parties (tangible"Management Agreements"), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”)including, each of which is without limitation, those listed on Schedule 2.1(e2.2(a);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”)The Office Lease;
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights All pertinent Books and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”)Records;
(h) All claims tangible personal property, including furniture, equipment, computer hardware and rights software, owned by Seller and used in the operation of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its the Business, including without limitation save and except those items listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights2.2(x);
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to Intangible Property used in connection with the extent they relate to Seller’s Business (collectively, except the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);trade name "Reyn▇▇▇▇"; ▇nd
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records rights (which financial records shall be certified by Queyrouzeincluding any benefits arising therefrom), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights claims and demands of recovery, warranties and guarantees with respect to Purchased Assets whatever nature (including without limitation the Inventory), rights of set off, and rights of recoupment whether or not liquidated) of Seller (including any such item relating to the payment of taxes other than income taxes) Purchased Assets, including, without limitation, condemnation rights and proceeds, and all federalrights against suppliers under warranties covering any of the Purchased Assets. Notwithstanding the foregoing, state and local franchise and property tax credits the Purchased Assets shall not include the assets listed on Schedule 2.2(x) (“Claims”collectively, "Excluded Assets");
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Date.
Appears in 1 contract
Purchased Assets. Subject to and upon Section 2.2, the terms and conditions set forth herein, at the Closing Seller "Purchased Assets" shall convey, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept consist of all of Seller’s the Company's and each of its Subsidiaries' entire right, title and interest in and to all of Seller’s tangible and intangible assets usedthe following, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitationwherever located:
(a) The rights and benefits accruing to Seller as lessee under any immovable all of the outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company set forth in Section 2.1(a)(i) of the Disclosure Letter (real) property lease and/or sublease relating to Seller’s Business existing on collectively with the date direct or indirect Subsidiaries of this Agreement through such Subsidiaries, the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3"Transferred Subsidiaries");
(b) All right, title all Owned Real Property and interest, if any, to leasehold all rights of the Company in respect of the Leased Real Property (including subleaseholds) described in Section 6.14 of the Disclosure Letter and all improvements, fixtures, constructionsand fittings thereon, component parts and easements, rights-of-way, and other immovable appurtenants thereto (real) property owned by Seller such as appurtenant rights in and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(bto public streets) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements"Real Property");
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premisesall tangible personal property, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliancesmachinery, equipment, furniture, vehicles, smallwarestrailers, utensilstools, glassware, table clothsinstruments, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets inventories (including, without limitation, recipesraw materials, purchased goods, goods and work in process, supplies (including storeroom supplies) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwisefinished goods), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant)pallets, including without limitation the trade names listed on Schedule 2.1(g)office and laboratory equipment, goodwill materials, fuel and other intangible assets similar personal property not normally included in inventory, that relates primarily to the Business or is otherwise included in the Purchased Assets (collectively, “Intellectual the "Tangible Personal Property”");
(hd) All all warranties and all claims in respect of deposits, prepayments and refunds and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating set off against third parties that relate primarily to its the Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(ie) All licenses, permits, consents, use agreements, approvals, authorizations any and certificates all rights of any Governmental Authority an insured party in respect of insurance claims to the extent they related to the Business or to the Purchased Assets, all to the extent provided in the Insurance Claims Agreement;
(f) all Permits, Orders and similar rights obtained from Governmental Entities, that relate primarily to Seller’s Business (collectivelythe Business, the “Licenses”)Owned Real Property, the Leased Real Property or are otherwise included in each case the Purchased Assets, but only to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i)their terms;
(jg) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business all books, records, ledgers, files, documents, business correspondence, customer files, supplier lists, parts lists, vendor lists, lists, plats, architectural plans, budgets, financial statementsdrawings and specifications, creative materials, advertising and promotional materials, corporate policy documentsstudies, architectural plansreports, mechanical drawingsand other similar printed or written commercial materials, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating that relate primarily to its the Business, the Owned Real Property, the Leased Real Property or are otherwise included in the Purchased Assets or that are owned by the Transferred Subsidiaries;
(h) all agreements, contracts, leases, subleases, indentures, mortgage documents and any correspondence relating commitments, instruments, documents and commitments creating security interests, guarantees, customer orders, purchase orders, dealer and distributorship agreements, supply agreements, licenses, sublicenses, joint venture agreements, partnership agreements and other similar arrangements and commitments and rights thereunder, that relate primarily to the Business or reasonably related to the Business Purchased Assets (collectively, but excluding this Agreement and the “Books Ancillary Agreements, "Contracts"), including, without limitation, those Contracts set forth in Section 6.4 of the Disclosure Letter, the Consultancy Agreements and Records”)Collective Bargaining Agreements listed in Section 6.7(a) of the Disclosure Letter and any agreement to which an Available Employee is a party;
(i) all accounts and notes receivable arising in respect of the operation of the Business;
(j) the Business-Related Intellectual Property;
(k) All of Seller’s rightthe tangible or physical materials embodying all computer software, product literature and advertising material, specifications, credit information, inventory, marketing, personnel, financial, title and interest in other documents, data and any right similar information and material, however stored, that relate primarily to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options Business or to lease adjacent property or options to purchase the leased premises.Purchased Assets;
(l) All the cash, cash equivalents and short term investments held by the Transferred Subsidiaries (other than ▇▇▇▇▇▇-▇▇▇▇▇▇ Inc.) as of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignableClosing Date;
(m) All domain names$1,000,000 in aggregate value of cash, websites cash equivalents and other intellectual property of any kind or nature used short term investments held by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇-▇▇▇▇▇▇ Steak HouseInc. (the "▇▇▇▇▇▇-▇▇▇▇▇▇ Retained Cash Amount");
(n) Except as provided the assets in respect of the Assumed Pension Plan and the life insurance policies underlying the Split Dollar Agreements listed on Section 2.2(c)6.7(a) of the Disclosure Letter and the assets, all claimsif any, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses transferred in action, rights of recovery, warranties and guarantees accordance with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”Section 9.1(h); and
(po) All tax credits all other assets of the Company or rights to credits available to Seller in connection with the operation any of Seller’s Business its Subsidiaries that relate primarily to the extent transferable to Purchaser but excluding any tip credits Business or income tax credits usable by Seller up to the Closing DatePurchased Assets.
Appears in 1 contract
Purchased Assets. Subject to and upon the terms and conditions set forth herein, at the Closing Seller shall convey, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept The Purchased Assets are all of Seller’s rightthe assets of Seller used in the Business, title and interest in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitationincluding:
(a) The All of the billboard displays and other out-of-home advertising structures (including rights to walls), including, without limitation, those set forth and benefits accruing to Seller as lessee under any immovable (realdescribed in Schedule 2.2(a) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1attached hereto, together with all components, fixtures, parts, appurtenances, and equipment attached to or made a part thereof that are existing, under construction or for which Seller has any leases which may be executed on rights (collectively, the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3"Structures");
(b) All rightleases, title licenses, easements, other rights of ingress or egress, and interestall other grants of the right to place, if anyconstruct, to leasehold improvementsown, fixturesoperate or maintain the Structures on land, constructions, component parts buildings and other immovable (real) real property owned by Seller third parties, and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) all rights therein (collectively, the “Leasehold Improvements”) "Site Leases"), including, without limitation, those Site Leases listed on Schedule 2.2(b); and all architectural plans state and mechanical drawings related local licenses or permits/tags which Seller has with respect to the Leasehold ImprovementsStructures and, to the extent assignable, all other Governmental Authorizations that are required for the operation of the Structures, (collectively, the "Permits"), including, without limitation, those Permits listed on Schedule 2.2(b);
(c) All rightrights under existing and pending sales and advertising contracts associated with the Structures, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real all rights of Seller pertaining to or accruing to the benefit advertising copy displayed on the Structures as of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) Closing Date (collectively, the “Easements”"Advertising Contracts"), including, without limitation, those Advertising Contracts listed on Schedule 2.2(a) attached hereto;
(d) All machinery rights and interests in joint venture arrangements, however organized, engaged in the outdoor advertising business (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business"Joint Venture Agreements"), kitchen and other appliancesincluding, equipmentwithout limitation, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items Joint Venture Agreements listed and described on Schedule 2.1(d) 2.2 (collectively, the “Equipment”d);
(e) The All rights and benefits accruing interests in agreements to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal manage structures on behalf of third parties (tangible"Management Agreements"), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”)including, each of which is without limitation, those listed on Schedule 2.1(e2.2(b);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”)The Office Lease;
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights All pertinent Books and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”)Records;
(h) All claims tangible personal property, including furniture, equipment, computer hardware and rights software, owned by Seller and used in the operation of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its the Business, including without limitation save and except those items listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights2.2(x);
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to Intangible Property used in connection with the extent they relate to Seller’s Business (collectively, except the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);trade name "Reyn▇▇▇▇"; ▇nd
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records rights (which financial records shall be certified by Queyrouzeincluding any benefits arising therefrom), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights claims and demands of recovery, warranties and guarantees with respect to Purchased Assets whatever nature (including without limitation the Inventory), rights of set off, and rights of recoupment whether or not liquidated) of Seller (including any such item relating to the payment of taxes other than income taxes) Purchased Assets, including, without limitation, condemnation rights and proceeds, and all federalrights against suppliers under warranties covering any of the Purchased Assets. Notwithstanding the foregoing, state and local franchise and property tax credits the Purchased Assets shall not include the assets listed on Schedule 2.2(x) (“Claims”collectively, "Excluded Assets");
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Date.
Appears in 1 contract
Purchased Assets. Subject Seller hereby sells, conveys, assigns and delivers to Buyer, free and upon the terms and conditions set forth hereinclear of all Encumbrances, at the Closing Seller shall convey, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept all of Seller’s right, title and interest of Seller in and to all of methods, technologies, equipment, resources, rights, and Intellectual Property exclusively or primarily used or relating to Seller’s tangible current operations in the GeneFunction Factory and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”)Non-Compete Field, including without limitationlimitation the following:
(a) The rights All assets reflected and/or described on the asset list attached as Schedule 2.1(a) and benefits accruing to Seller as lessee under any immovable all other assets of a lesser value and not included on such Schedule 2.1(a) (real) property lease and/or sublease including, for example, assets exclusively or primarily used or relating to Seller’s Business existing on current operations in the date of this Agreement through GeneFunction Factory and in the Closing Date, each of which is Non-Compete Field that are fully depreciated that are not listed on such Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”2.1(a) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(bcertain consumable assets) (collectively, the “Leasehold ImprovementsSpecified Tangible Assets”).
(b) and all architectural plans and mechanical drawings related All of Seller’s owned Intellectual Property relating to the Leasehold Improvements;GeneFunction Factory and the Non-Compete Field, and any other transgenic plant applications, in each case in existence at the time of Closing or having a Conception Date on or before the May Transition Date, including without limitation the Intellectual Property listed on Schedule 2.1(b), including the patents and patent applications set forth therein (collectively, the “Transferred Intellectual Property”).
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way business records and other real rights documents, discs, tapes and other records of Seller, relating to services previously provided to Buyer by Seller under the Existing Contract, including (but not limited to) all bids, contracts, supplier records, drawings, designs, specifications, process information, performance data, software, programs, and other information or data related to the business and operations of Seller pertaining to or accruing to solely in the benefit Buyer’s Field, but excluding original copies of the Leased Premisesaccounting and corporate books of Seller, including without limitation those items listed on Schedule 2.1(c) (collectivelywhich books Seller will retain and permit Buyer access to or, in the “Easements”);event Seller desires to dispose of such books, will turn over to Buyer. Notwithstanding the foregoing, Seller shall be allowed to maintain copies of all such business records for the sole purpose of complying with the requests of any Governmental Body or its auditing firm.
(d) All machinery (including without limitation all computer hardware used The Royalty Buy-Out Option as included in connection with Section 4.2 of the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);Existing Contract Amendment.
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);Leased Real Property.
(f) All of Seller’s inventory data and materials and other Intellectual Property and project technology developed and delivered under the Existing Contract, as specified in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);Section 2.8 below.
(g) Seller’s Business as a going concernAll other claims, its Franchise Rights, all of the rights and benefits (but not its obligations causes of action with respect to the Non-Compete Field from and against parties other than Seller, liquidated or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);unliquidated.
(h) All claims The purchased assets described in Section 2.1 and rights of the licensed assets described in Section 2.2 below collectively shall be referred to as the “Acquired Assets.” Seller under all agreements, contracts, software license agreements, purchase hereby agrees that it shall execute and sale orders deliver to Buyer such assignment and other executory contracts and commitments of Seller arising from or relating conveyance documents that Buyer reasonably requests to its Business, including without limitation effectuate the transactions contemplated hereby. The Acquired Assets shall not include those assets listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant hereto (the “Working CashExcluded Assets”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Date.
Appears in 1 contract
Purchased Assets. Subject to and upon On the terms and subject to the conditions set forth hereinin this Agreement, at the Closing Closing, Seller shall, and shall conveycause its Subsidiaries to, sell, convey, assign, transfer and deliver to Purchaser Purchaser, free and clear of all Liens, except for Permitted Liens, and Purchaser shall purchase, acquire and accept from the Seller Group, the following Assets owned by the Seller Group (collectively, but excluding the Excluded Assets, the “Purchased Assets”):
(i) the Seller Group’s leasehold interest in all Leased Real Property set forth on Section 2.01(a)(i) of Sellerthe Disclosure Schedule together with the Seller Group’s right, title and interest in in, to and to under all of Seller’s tangible facilities, buildings, structures, improvements and intangible assets usedfixtures thereon (and any planned or contemplated improvements or fixtures, held for use including any Contracts, documents or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”plans related thereto), including without limitation:
(a) The rights all easements and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller way pertaining to thereto or accruing to the benefit of the Leased Premisesthereof, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”)and all other appurtenances pertaining thereto;
(dii) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of SellerGroup’s right, title and interest in, to and under (A) all machinery, equipment, furniture, tangible personal property (other than IT Assets) and interests therein, and (B) all vehicles (other than forklifts), in and any right each case, to lease the property identified extent located on or used in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property connection with the Leased Real Property or options to purchase used or held for use primarily in the leased premises.Distribution Business;
(liii) All of Sellerthe Seller Group’s right, title and interest in in, to and under (A) all of the IT Assets located at any location listed on Section 2.01(a)(iii) of the Disclosure Schedule, (B) laptop computers issued to its telephone numbers and Business Employees as of the directory advertising for such telephone numbers, Closing to the extent assignablethat any leasehold interest in such laptop computers can be assigned, or such laptop computers have been “bought-out”, as contemplated in Section 2.02(c), and (C) forklifts that are located on or used in connection with the Leased Real Property or used or held for use primarily in the Distribution Business to the extent that any leasehold interest in such forklifts can be assigned, or such forklifts have been “bought-out”, as contemplated in Section 2.02(c);
(miv) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak Houseall Inventory;
(nA) Except as provided in all Contracts (and all rights thereunder) that primarily relate to the Distribution Business including the Distribution Agreement and the Supply Agreement and those Contracts listed on Section 2.2(c2.01(a)(v) of the Disclosure Schedule and (B) the Purchaser Portions of the Shared Contracts (collectively, the “Assumed Contracts”), but excluding, for the avoidance of doubt, all claims, security and other deposits, prepayments, prepaid expenses, refunds, Specified Excluded Contracts;
(vi) all causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, claims and rights of recoupment of Seller (including any such item with or against Third-Parties primarily relating to the payment Distribution Business, any Purchased Asset or Assumed Liability, including unliquidated rights under manufacturers’ and vendors’ warranties specifically related thereto and all claims and rights under sales Contracts, statements of taxes work, purchase orders and other similar commitments in connection therewith;
(vii) all rights, title and interest in the Business Intellectual Property (other than income taxesa 50% joint ownership interest in the Online Program Source Code);
(viii) and all federalgovernmental qualifications, state and local franchise and property tax credits registrations, franchises, licenses, permits, approvals or authorizations used primarily in the conduct of the operation of the Distribution Business to the extent transferrable by applicable Law (the “ClaimsAssumed Permits”);
(oix) Seller’s working cashall Assets assumed by, which shall be $1,000 per restaurant and rights transferred to, Purchaser expressly in accordance with ARTICLE VI;
(x) all goodwill to the extent in respect of the Distribution Business or related to any Purchased Assets;
(xi) all Assets to the extent reflected in the Final Post-Closing Statement;
(xii) the issued and outstanding capital stock or other equity interests of the Persons set forth on Section 2.01(a)(xii) of the Disclosure Schedule (the “Working CashPurchased Interests,” and such Persons, the “Purchased Entities”);
(xiii) other than any Excluded Assets of the types described in Section 2.01(b)(x), Section 2.01(b)(xi) or Section 2.01(b)(xvi) below, all books, records, files and papers of the Seller Group, whether in hard copy or computer format, relating to, used, or held for use primarily in the Distribution Business, including any Contracts, financial and accounting records, marketing plans and market research, sales and promotional literature, manuals and data, sales and purchase correspondence, payroll, personnel and employment records of Transferred Employees (including, for the avoidance of doubt, copies of Forms I-9 of U.S. Transferred Employees), to the extent such records can be transferred under applicable Law (provided that if any records of Transferred Employees cannot be transferred under applicable Law, copies of such records shall be included as Purchased Assets and transferred to Purchaser);
(xiv) a 50% joint ownership interest in the Online Program Source Code;
(xv) any other assets (whether tangible or intangible, but excluding forklifts and IT Assets) primarily used in the conduct of the operation of the Distribution Business; and
(pxvi) All tax credits all Purchased Entity Plans and any trusts, vendor contracts or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Dateother assets related thereto.
Appears in 1 contract
Purchased Assets. Subject to and upon the terms and conditions set forth hereinof this Agreement, at the Closing (as defined in Section 2.1 hereof), Seller shall agrees upon payment by Buyer to Seller of the Purchase Price in accordance with Section 1.6, to sell, convey, selltransfer, assign, transfer assign and deliver to Purchaser Buyer and Purchaser shall purchaseBuyer agrees to purchase and acquire, acquire the Hospital Facilities and accept all of Seller’s right, title and interest in and to all of Seller’s the tangible and intangible assets usedof Seller associated therewith, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) ), which assets shall include, without limitation, the following (referred to hereinafter collectively as the “Seller’s Assets” or “its Purchased Assets”), including without limitation:):
(a) The rights and benefits accruing to the approximately 8.53 acres, more or less, of owned Real Property of Seller located in Fulton, Missouri, shown as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing tract 1A on the date plat of this Agreement through survey prepared by ▇▇▇▇▇▇▇▇ Engineering Consultants dated September 26, 2012 the Closing Date, each metes and bounds of which is listed are described on Schedule 2.1(a)-11.1(a), together with all improvements, any leases which may be executed on the immovable construction in progress, any other buildings and fixtures thereon, and all rights, privileges and easements appurtenant thereto (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (collectively, the “Owned Real Property LeaseProperty”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3);
(b) All rightall the leasehold rights and interests of Seller in the leased real property located in Fulton, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable Missouri (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold ImprovementsLeased Real Property”) and all architectural plans and mechanical drawings related to the Leasehold Improvementsunder lease agreements referenced in Schedule 1.1(b);
(c) All rightthe tangible personal property, title including, without limitation, the equipment, vehicles, furniture and interestfurnishings, if any, to easements, servitudes, privileges, rights-of-way the current list and other real rights general location of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed which are set forth on Schedule 2.1(c) (collectively, the “Easements”1.1(c);
(d) All machinery (including without limitation all computer hardware used the rights and interests of Seller in connection with the operation and maintenance of Seller’s Business), kitchen equipment and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal personal property leased by Seller under the operating leases (tangible), movable (personal“Personal Property Leases”) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d1.1(d) (collectively, the “EquipmentLeased Personal Property”);
(e) The rights all receivables generated by or pertaining to the business and benefits accruing to operations of Seller as lessee and the rendering of healthcare services, including without limitation (but in each case exclusive of Retained Accounts Receivable) (i) receivables and reimbursement under any leases and/or subleases for equipmentMedicare, machineryMedicaid, appliances or other corporeal CHAMPUS/TRICARE (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment LeasesGovernment Programs”), Blue Cross and other third party payors arising from the rendering of services to patients at the Healthcare Facilities, all patient, trade and other account receivables and assets included in working capital, credits, offsets, or reimbursements, together with any and all accrued interest thereon existing as of the close of business on the Closing Date; (ii) all claims for payment and/or reimbursement under Government Programs and other third party payors, in each case arising from the rendering of which is listed on Schedule 2.1(eservices to patients at the Healthcare Facilities or other actions of Seller prior to Closing (collectively, the “Accounts Receivable”);
(f) All of Seller’s inventory in connection with Seller’s Businessthe inventory, which including supplies and spare parts, owned by Seller as of the day before the Closing Date that are those items listed and described on Schedule 2.1(f)-1, which shall be not less than used or held for use in the minimum inventory levels as listed and described on Schedule 2.1(f)-2 operation of the Healthcare Facilities (the “Inventory”);
(g) Seller’s Business the medical records of Seller in respect of the Hospital patients, on the Date of Closing or discharged prior to Date of Closing, and the medical records of the ▇▇▇▇▇▇ Medical Clinic and the OMOB for patient encounters prior to the Date of Closing (except for records of patients belonging to a provider for whom the Hospital is acting merely as a going concern, its Franchise Rightslandlord or records of patients belonging to providers who at one time owned portions of the OMOB), all financial, patient, medical staff and personnel records of Seller relating to the Healthcare Facilities including, without limitation, equipment records, medical administrative libraries, medical records, patient billing records, documents, catalogs, books, records, files, operating manuals and current personnel records;
(h) the rights and benefits interests, to (but not its obligations or liabilitiesi) under its Franchise Seller’s Medicare and Medicaid provider agreements (the “Provider Agreements, all intellectual property ”) and (ii) the rights and interests of Seller used in connection with its businessunder contracts, including without limitationcommitments, all trademarksleases and agreements of Seller listed on Schedule 1.1(h) (the “Contracts”);
(i) the licenses, service markspermits, rights certificates, certificates of need, accreditations held by Seller relating to computer softwarethe ownership, trade secrets development, and operation of the Healthcare Facilities (including, without limitation, recipes) any pending or approved governmental approvals and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names Medicare provider number and other matters listed on Schedule 2.1(g1.1(i), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned ContractsPermits”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All filesthe names, operating manuals trade names, trademarks and correspondence pertaining to service marks (or variations thereof) of Seller associated with the Equipment; all customer Healthcare Facilities (other than the trade names, trademarks, service marks and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies other Intellectual Property containing the words, “Crown Healthcare,” “Crown Healthcare Investments,” “MedCare,” “MedCare South,” “SunLink,” “HealthMont,” HealthMont of three years of financial records (which financial records shall be certified by QueyrouzeMissouri,” or any iteration or variation thereof), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Businessall goodwill associated therewith, and any correspondence relating to the Business or reasonably related to the Business (collectivelyall applications and registrations, the “Books and Records”)if any, associated therewith;
(k) All of Seller’s right, title the goodwill associated with the Healthcare Facilities and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.Purchased Assets;
(l) All the other property, other than the Excluded Assets, of Seller’s rightevery kind, title character or description owned by Seller and interest solely used or held solely for use in and to its telephone numbers and the directory advertising for such telephone numbersbusiness of the Hospital or the Purchased Assets, to the extent assignablewherever located;
(m) All domain names, websites the rights and other intellectual property interests of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak Houseoperating and capitalized leases of personal property;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment interest of Seller (including any such item relating to in all property of the payment foregoing types, arising or acquired in the ordinary course of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to business of Seller in connection with the operation of Seller’s Business to Healthcare Facilities between the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to date hereof and the Closing DateClosing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sunlink Health Systems Inc)
Purchased Assets. Subject BFF agrees to and upon will sell, convey, transfer, assign and deliver to DZLP at the Closing (as hereinafter defined), free and clear of all liens, mortgages, pledges, encumbrances and charges of every kind (except those which DZLP has expressly agreed in Section 2.2 hereof to assume), on the terms and subject to the conditions set forth hereinin this Agreement, all of the assets, properties and business of BFF of every kind and description, real, personal and mixed, tangible and intangible, of BFF wherever located (except those assets of BFF which are specifically excluded from this sale by Section 1.2 hereof) as they shall exist at the Closing Seller Date (as hereinafter defined), in each case used exclusively in the Business (collectively, the "Purchased Assets"). Without limiting the generality of the foregoing, but subject to Section 1.2 hereof, the Purchased Assets shall conveyinclude the following:
1.1.1 all machinery, sellequipment, assigntools, transfer supplies, leasehold improvements, construction in progress, furniture and deliver to Purchaser fixtures, automobiles and Purchaser shall purchasetrucks and other fixed assets owned by BFF (the "Purchased Fixed Assets");
1.1.2 all inventories of BFF (the "Purchased Inventory");
1.1.3 all receivables of BFF, acquire including without limitation all trade accounts receivable arising from sales of inventory in the ordinary course of business, notes receivable and accept insurance proceeds receivable (the "Purchased Receivables");
1.1.4 all of Seller’s right, title the interest of and interest the rights and benefits accruing to BFF as lessee under (i) all leases of real property and all improvements to and buildings thereon including without limitation those described in and to all Section 4.4.2 of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets BFF Disclosure Schedule (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”the "Purchased Leasehold Premises"), including without limitation:
and (aii) The rights all leases or rental agreements covering machinery, equipment, tools, supplies, furniture and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts automobiles and trucks and other immovable (real) property owned by Seller and located on the Leased Premisesfixed assets, including without limitation those items listed on described in Section 4.11 of the BFF Disclosure Schedule 2.1(b(the "Purchased Leased Property") (collectively, the “Leasehold Improvements”leasehold rights described in clauses (i) and all architectural plans and mechanical drawings related (ii) are collectively referred to as the "Purchased Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”Rights");
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, 1.1.5 all of the rights and benefits (but not its obligations or liabilities) accruing to BFF under its Franchise Agreementsall sales orders, sales contracts, supply contracts, purchase orders and purchase commitments made by BFF in the ordinary course of business, all intellectual property other agreements to which BFF is a party or by which it is bound and all other choses in action, causes of Seller used in connection with its businessaction and other rights of every kind of BFF (the "Purchased Contract and Other Rights");
1.1.6 all operating data and records of BFF, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) the Centers' customer lists, financial, accounting and trade names credit records, correspondence, budgets and other similar documents and records (whether acquired from Purchaserthe "Purchased Records");
1.1.7 all of the proprietary rights of BFF, an Affiliated franchisor or otherwise), (including without limitation all trademarks, trade names, patents, patent applications, licenses thereof, trade secrets, technology, know-how, formulae, designs and drawings, computer software, slogans, copyrights, processes, operating rights, other licenses and permits, and other similar intangible property and rights relating to the products or business of the Seller’s right to do Centers (the "Purchased Proprietary Rights");
1.1.8 all cash and cash equivalents and investments, whether short- term or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant)long-term, of the Centers, including without limitation bank accounts, certificates of deposit, treasury bills and securities (the trade names listed on Schedule 2.1(g), goodwill "Purchased Cash and other intangible assets (collectively, “Intellectual Property”Investments");
(h) All claims 1.1.9 all prepaid and rights deferred items of Seller under all agreementsBFF, contracts, software license agreements, purchase other than prepaid rentals and sale orders and other executory contracts and commitments of Seller arising from or relating to its Businesstaxes, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” prepaid insurance and collectively the “Assigned Contracts”) unbilled charges and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence deposits relating to the Business or reasonably related to operations of the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant Centers (the “Working Cash”"Purchased Prepaid Items"); and
1.1.10 all of the goodwill of BFF (p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Date"Purchased Goodwill").
Appears in 1 contract
Purchased Assets. Subject to and upon On the terms and subject to the conditions set forth hereincontained in this Agreement, at the Closing Purchaser agrees to purchase and accept from Seller, and Seller shall convey, agrees to sell, assign, transfer transfer, convey and deliver to Purchaser and Purchaser shall purchaseat Closing, acquire and accept all of Seller’s right, title and interest in and to the following assets free and clear of all of Seller’s tangible liens and intangible assets used, held for use or in any way relating to its Business other than security interests (the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Purchased Assets”), including without limitation:):
(a) The rights Furniture, furnishings, fixtures, televisions, kitchen and benefits accruing to Seller as lessee under any immovable other equipment and non-consumable items located in the Hotel or used in the operation of the Business (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Datecollectively, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property LeaseFF&E”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3);
(b) All rightAn assortment of operating inventories and supplies consisting of housekeeping and laundry supplies, title food and interestbeverage stock, if any, to leasehold improvements, fixtures, constructions, component parts paper and other immovable (real) property owned by Seller accounting supplies and located on the Leased Premises, including without limitation those similar consumable items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “EasementsOperating Supplies”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(lc) All of Seller’s right, title and interest in and to its telephone numbers all advance reservations, bookings for use of banquet facilities, the restaurant and the directory advertising for such any meeting rooms, and other deposits;
(d) Any telephone numbers, to the extent assignablefacsimile numbers, email addresses, websites or other communication assets used primarily in connection with Seller’s Business;
(me) All domain namescomputer hardware, websites software and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak Houseaccessories;
(nf) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased The Gaming Assets (including without limitation the Inventory)“Gaming Assets”) (together with items (a) through (e) collectively, rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“ClaimsPersonal Property”);
(og) Seller’s working cash, Any Contracts and Leases which shall be $1,000 per restaurant (the “Working Cash”); andPurchaser agrees to assume pursuant to Section 5.1;
(ph) All tax credits intangible personal property owned by Seller and used primarily or rights to credits available to Seller exclusively in connection with the operation of Seller’s Business Business, including without limitation all rights to the name “Speedway Hotel and Casino”, and all other plans, specifications, drawings, engineering reports, surveys, player and customer lists, vendor lists, records and information and all patents, inventions, trade secrets and licenses owned by Seller with respect to the foregoing (collectively, the “Intangible Property”);
(i) Subject to Section 3.2, all books, records, ledgers, files, information, data and other written materials to the extent transferable related to Purchaser but excluding any tip credits the ownership or income operation of Seller’s Business, including, without limitation, books and records relating to Taxes which are payable in connection with the ownership or operation of Seller’s Business, including, without limitation, accounting and tax credits usable by Seller up records and information pertaining to events occurring in connection with Seller’s ownership or operation of Seller’s Business on or prior to the Closing DateDate (collectively, the “Books and Records);
(j) The Tray Ledger;
(k) The House Funds;
(l) The Accounts Receivable;
(m) The Seller’s Deposits; and
(n) The Markers.
Appears in 1 contract
Purchased Assets. Subject to and upon (i) On the terms and subject to the conditions set forth herein, and except as otherwise provided in this Section 2, at the Closing Seller Closing, the applicable Sellers shall conveysell, selltransfer, assign, transfer convey and deliver to Purchaser the applicable members of the Tango Buyer Group or the applicable members of the JBC Buyer Group, as appropriate, and Purchaser shall purchasethe applicable members of the Tango Buyer Group or the applicable members of the JBC Buyer Group, acquire as appropriate, agree to purchase and accept from the applicable Sellers, free and clear from all Liens, all of Seller’s the applicable Sellers' right, title and interest in and to all of Seller’s tangible the assets and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation:properties specified below.
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(bA) All rightfurniture, title and interestgames, if any, to leasehold improvements, fixtures, constructions, component parts equipment and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those similar items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) tangible personal property located on in the Leased Premises Acquired Stores or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation business of its Business the Acquired Stores (each other than any tangible personal property that is currently located at any store that is not an “Equipment Lease” and collectively the “Equipment Leases”Acquired Store), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do IBM Equipment, the CIT Equipment and the GE Equipment, and any equipment acquired pursuant to, or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant)financed under, including without limitation the trade names listed agreements or instruments on Schedule 2.1(g), goodwill and other intangible assets 1.4 that are not determined (collectively, “Intellectual Property”);either by stipulation by the relevant parties or determination by the Bankruptcy Court) to constitute "true leases" pursuant to the provisions of Section 1.203 of the Uniform Commercial Code.
(hB) All claims supplies, tableware, glassware, small wares, menus, uniforms and rights items of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments inventory located in the Acquired Stores or used in the business of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;Acquired Stores.
(iC) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to leasehold interests in the extent they relate to Seller’s Business (collectively, the “Licenses”)Acquired Stores, in each case to the extent transferable by the Sellertogether with Sellers' interests in all buildings, including without limitation those listed on Schedule 2.1(i);
(j) All filesfixtures, operating manuals plant, equipment and correspondence pertaining to the Equipment; improvements thereon or attached thereto, all customer rights-of-way, privileges and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, appurtenances associated therewith and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premisessecurity deposits.
(lD) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;Assumed Contracts.
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(nE) Except as provided in Section 2.2(c)2(b)(iv) below, all of Sellers' rights, claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees offset or causes of action against third parties with respect to the Purchased Assets (including without limitation and Assumed Liabilities that arise in the Inventory), rights Ordinary Course of set off, and rights of recoupment of Seller (including any such item relating Business or relate to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the business of the Acquired Stores.
(F) All deposits (other than the Deposit) and prepaid expenses of the business of the Acquired Stores.
(G) All books and records (including all data and other information stored on discs, tapes or other media and customer, prospect and other mail lists, supplier and vendor lists, pricing and cost information) of the business of the Acquired Stores, wherever located (the "Books and Records").
(H) All phone numbers and listings for the Acquired Stores.
(I) To the extent transferable, all licenses, permits or other grants granted by governmental authorities used in or required or necessary for the lawful ownership and operation of the Acquired Stores.
(J) To the extent transferable to Purchaser but excluding under applicable law, any tip credits or income tax credits usable by Seller up to automatic teller machine located at any Acquired Store and the currency in such machines as of the close of business on the day immediately preceding the Closing Date.
Appears in 1 contract
Purchased Assets. Subject to and upon the terms and conditions set forth hereinin this Agreement and on the basis of and in reliance upon the representations, warranties, covenants and other obligations of Seller and Buyer in this Agreement, at the Closing (as defined in Section 3.1), Seller shall sell, convey, selltransfer, assign, transfer assign and deliver to Purchaser Buyer, and Purchaser Buyer shall purchase, acquire and accept purchase from Seller all of Seller’s right's rights, title and interest in and to the Purchased Assets, free and clear of all liens, charges, claims, pledges, security interests and encumbrances of any nature whatsoever (collectively, "Liens"), except for those Liens set forth on Exhibit A as "Permitted Encumbrances." For purposes of this Agreement, "Purchased Assets" shall mean and include all of Seller’s those personal, tangible and intangible assets usedproperties, held for use or and the real property and improvements of Seller, used in any way relating to its Business connection with the operation of the Business, other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”defined in Section 1.3 below), including including, without limitation:
(a) The , the following assets, properties and rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Dateowned, each of which is listed on Schedule 2.1(a)-1leased, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 used or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned held for use by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s the Business): Without in any way limiting the scope of the assets being transferred to Buyer hereunder, kitchen and other appliancessaid assets include the real estate set forth on Appendix I located at 2118 Broxton Road, equipmentHighway 441 North, furnitureDouglas, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s BusinessGeorgia, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’al▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇, ▇▇▇▇▇ Steak House;
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ditaments and appurtenances, all machinery, equipment and vehicles (n) Except as provided in Section 2.2(cincluding those listed on Appendix II), all claimsfixtures, security stock in trade, inventories of merchandise (raw and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventoryprocessed materials), rights of set offsupplies, tools, furniture, designs and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Datedrawings.
Appears in 1 contract
Sources: Asset Purchase Agreement (Decorator Industries Inc)
Purchased Assets. Subject to and upon the terms and conditions set forth hereinin this Agreement, Seller hereby agrees that at the Closing Seller (as defined in Section 3.1, below) it shall sell, transfer, convey, sell, assign, transfer and deliver assign to Purchaser Buyer and Purchaser shall purchase, acquire Buyer hereby agrees at the Closing to purchase and accept from Seller, free and clear of all mortgages, liens, security interests, pledges and encumbrances, the following assets (collectively, the "Purchased Assets"):
(a) All of Seller’s 's right, title and interest in and to under all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3Exhibit C (the "Franchise Agreements") and all operating manuals, recipes, proprietary information and similar documents and information held by Seller in connection with Seller's status as a franchisee of ▇▇▇▇▇▇▇▇'▇ International, Inc., a Delaware corporation ("AII") and all copies and extracts therefrom;
(b) All of Seller's right, title and interest at the Closing in and to the real and personal property (of whatever nature) intended to be used in the operation of the Additional Restaurant and leased by Seller;
(c) All real and personal property (of whatever nature) intended to be used in the operation of the Additional Restaurant and owned by Seller;
(d) Subject to the consultation and approval of Buyer as set forth in Section 5.22 herein, all of Seller's right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts at the Closing in and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”)Potential Sites;
(e) The rights and benefits accruing to Seller Seller's interest as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal in and to the Real Property Leases (tangibleas defined in Section 4.4(c), movable (personal) property used below), including all of Seller's interest under the Real Property Leases in the operation of its Business (each an “Equipment Lease” buildings, fixtures, signs, parking facilities, trash facilities, fences, other leasehold improvements, appurtenances, and collectively the “Equipment hereditaments subject to such Real Property Leases”), each of which is listed on Schedule 2.1(e);
(f) All Owned Real Property (as defined in Section 4.4(a), below), including all of Seller’s inventory 's interest in connection with Seller’s Businessthe buildings, which as of fixtures, signs, parking facilities, trash facilities, fences, other improvements, appurtenances and hereditaments related to the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”)Owned Real Property;
(g) Seller’s Business All Material Contracts (as a going concerndefined in Section 4.4(g), its Franchise Rightsbelow), including, but not limited to, all of the rights confidentiality agreements, non-competition agreements and benefits (but not non-solicitation agreements between Seller and its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”)employees;
(h) All claims equipment, vehicles and rights leasehold improvements used in the normal and customary operations of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Businessthe Restaurants, including without limitation those listed on Schedule 2.1(hbut not limited to the furniture, machinery, equipment, tables, chairs, cash registers, ovens, refrigerators, display cases, shelves, utensils, tools, pans, lights, uniforms, curtains, signs, menus, tablecloths, glasses, plates, dishes, silverware, pitchers, books, cabinets, racks, towels, ornaments, artifacts, decor, collectibles, bars, and bar equipment located at the Restaurant Locations or the Additional Restaurants, as the case may be (the "Equipment") (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licensesinventories of foodstuffs, permitsbeverages, consentspaper products, use agreementscleaning supplies and other supplies (the "Inventories") which are in the Restaurant Locations or the Additional Restaurant, approvalsas the case may be, authorizations and certificates of any Governmental Authority to on the extent they relate to Seller’s Business Closing Date (collectivelyas defined in Section 3.1, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(ibelow);
(j) All filesof Seller's other rights and property interests of any nature which are customarily used in the operation of the Restaurants or intended to be used in the operation of the Additional Restaurant, operating manuals including, but not limited to rights to use existing telephone numbers, fax numbers, keys, security system codes, copyrights, trademarks and correspondence pertaining to the Equipment; service marks (and all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouzegoodwill associated with such trademarks or service marks), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any rights arising under equipment or other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”)warranties;
(k) All of data transmission equipment and related software and software licenses ("Transferred Licenses"), computer software (subject to Seller’s right, title 's ability to assign or transfer such software) and interest in related materials and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature portable computers used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not field personnel and used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller only in connection with the operation of Seller’s Business the Restaurants;
(l) All records and files related to the extent transferable Real Property (as defined in Section 4.4(b), below) such as rent calculations, landlord correspondence, purchase agreements, deeds, construction documents, title reports, environmental and engineering reports, appraisals, surveys, etc., and the Material Contracts and all personnel records and files related to Purchaser but excluding any tip credits or income tax credits usable by Seller up employees who accept employment with Buyer as of the Effective Time (as defined below in Section 3.4, below); and
(m) All cash amounts normally used to operate the Closing DateRestaurants, provided that in no event shall such cash be in excess of $1,500 per Restaurant.
Appears in 1 contract
Sources: Asset Purchase Agreement (Applebees International Inc)
Purchased Assets. Subject Without limiting the foregoing, the Tenafly Purchased Assets, the Bergenfield Purchased Assets and the Closter Purchased Assets (collectively, the "Purchased Assets") shall include the following:
(i) With respect to and upon the terms and conditions set forth hereinCloster Purchased Assets, at the Closing Seller shall convey, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept all of Seller’s right, title and 's interest in and the Leased Real Estate, including the Closter Lease, and, with respect to the Tenafly Purchased Assets, all of Seller’s 's interest in the two Tenant Leases identified under paragraph No. 3 of Schedule 3.10 and with respect to the Bergenfield Purchased Assets, all of Seller's interest in the five Tenant Leases identified under paragraph No. 4 of Schedule 3.10;
(ii) All of Seller's tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”)assets, including without limitation:office furniture, office equipment and supplies, computer hardware and software, projectors, projector bulbs, ticketing machines, leasehold improvements on or related to the Real Estate or related to the Business;
(aiii) The rights All of Seller's books, records, manuals, documents, books of account, correspondence, sales reports, literature, brochures, advertising material and benefits accruing the like related to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s the Business existing actually located on the date of this Agreement through Real Estate on the Closing Date, each specifically excluding all of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed such items not located on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date Real Estate as of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3Date;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(fiv) All of Seller’s 's inventory in connection with Seller’s and supplies, including concession products, candy items and paper goods for the Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(kv) All of Seller’s right's rights under leases for personal property, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.if any;
(lvi) All of Seller’s right, title 's rights under the Permits and interest In-Touch Agreement;
(vii) All of Seller's goodwill and rights in and to its telephone numbers the name "Tenafly Cinema", "Bergenfield Cinema" and the directory advertising for such telephone numbers, to the extent assignable"Closter Cinema";
(mviii) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, 's rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”)telephone numbers for each Cinema location; and
(pix) All tax credits or rights to credits available to Seller in connection with The goodwill of the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing DateBusiness.
Appears in 1 contract
Sources: Asset Purchase Agreement (Clearview Cinema Group Inc)
Purchased Assets. Subject The assets to be purchased and upon the terms and conditions set forth herein, sold at the Closing Seller (the "Purchased Assets") shall convey, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept consist of all of Seller’s right, title the assets and interest in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business business (other than the Excluded Assets specified in Section 1.3(b) below) owned by Seller of every kind, character and description, whether tangible, real, personal or mixed, and wheresoever located, whether carried on the books of Seller or not carried in such books due to having been expensed, fully depreciated or otherwise. The Purchased Assets shall include without limitation the following (except in each such case, as hereinafter definedare expressly included in the Excluded Assets):
(i) (all technologies, know-how, patents, service marks, copyrights, trademarks, tradenames and similar intellectual property rights and assets including without limitation those identified or referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation:on SCHEDULE 1.3(A) attached hereto and made a part hereof;
(aii) The all accounts receivable and or other rights and benefits accruing to receive payment owing to Seller as lessee under any immovable (real"Accounts Receivable") property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”as defined below);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rightsSCHEDULE 1.3(A);
(iiii) All all of the inventories of products, work-in-progress, supplies and materials owned by Seller on the Closing Date ("Inventory"), including without limitation the Inventory listed on SCHEDULE 1.3(A), which Schedule classifies the Inventory by category, quantity and item description;
(iv) all tangible personal property owned by Seller, including without limitation furniture, fixtures, tools, machinery and equipment, computers, computer software, data bases, computer disks, drives and other data storage equipment and information, telephone systems, file cabinets and desks (collectively, "Tangible Personal Property");
(v) all of Seller's rights in, to and under all contracts of Seller, including without limitation those identified on SCHEDULE 1.3(A);
(vi) all of Seller's rights in, to and under all leases of tools, furniture, machinery, equipment and other items of tangible personal property entered into prior to the date hereof, all of which leases are listed on SCHEDULE 1.3(A);
(vii) to the extent transferable or assignable by their express terms or the terms of any law relating thereto, all franchises, licenses, permits, consentscertificates, approvals and other government authorizations necessary or appropriate to own and operate the Purchased Assets, including without limitation the exclusive right to use agreementsany and all trade marks, approvalstradenames, authorizations service marks, copyrights and certificates of any Governmental Authority similar rights relating to the extent they relate business of Seller, including among others the names, "GAIA Technologies," "Hard Goods," and "Leaky Pipe;"
(viii) all of the Company's rights in, to Seller’s Business and under all warranties and service contract commitments;
(collectivelyix) all rights in, the “Licenses”)to and under each contract, in each case to the extent transferable by the agreement, purchase order, work order and commitment involving Seller, including without limitation those listed on SCHEDULE 1.3(A) attached hereto and made a part hereof;
(x) all cash and cash equivalents on hand and in banks;
(xi) all prepaid expenses, prepaid insurance, deposits and other similar items;
(xii) all books and records owned by Seller, including without limitation all customer lists, credit records, computer records, contracts, leases, sales representation agreements, sales agency agreements, marketing and advertising materials, operating manuals, rental or lease payment record, purchase orders, schedules of assets correspondence with vendors, books of account, files, papers, books, and all other public and confidential business records (collectively, the "Business Records"), whether in hard copy form or electronically or magnetically stored;
(xiii) all rights, claims, lawsuits and choses in action against third parties relating to the Purchased Assets arising out of transactions occurring prior to the Closing Date (excluding the Retek Judgment, as referred to on Schedule 2.1(i1.3(b) hereto);
(jxiv) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbersin, to the extent assignable;
(m) All domain namesand under all representations, websites warranties, covenants and other intellectual property of any kind guaranties made or nature used provided by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees third parties with respect to the Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”)Assets; and
(pxv) All tax credits or rights to credits available to all goodwill of the business of Seller and the items identified in connection with the operation of Seller’s Business this Section 1.3(a); provided, however, that to the extent transferable the assignment of any lease, claim, right, benefit, warranty, service contract, commitment, or other contract, agreement, purchase order, work order or other commitment referred to Purchaser but excluding in this Section 1.3(a) shall require the consent of another party other than Seller or an affiliate of a Seller, this Agreement shall not constitute an assignment thereof if an attempted assignment would constitute a breach thereof, and in lieu thereof Seller shall cooperate with Sub, and shall use its best efforts to cause the affiliates of Seller to cooperate, as appropriate, in any tip credits reasonable arrangement designed to provide to Sub the benefits thereunder. Except as specifically listed on any Schedule referred to in this Section 1.3(a), all of such Purchased Assets shall be delivered free and clear of any liens, claims, pledges, security interests or income tax credits usable encumbrances of any kind, except (i) liens for current taxes not yet due or payable and (ii) claims and liens imposed by Seller up law and incurred in the ordinary course of business for obligations not yet due to the Closing Datecarriers and materialmen.
Appears in 1 contract
Sources: Asset Purchase Agreement (North American Technologies Group Inc /Mi/)
Purchased Assets. Subject to The Parties agree that the Utility Seller Purchased Assets and upon DTUENY Purchased Assets (collectively, the terms and conditions set forth herein, at the Closing Seller “Purchased Assets”) shall convey, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept include (without limitation) all of Seller’s such Sellers’ respective right, title and interest in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitationfollowing:
(a) The rights and benefits accruing to Seller as lessee under all real property (it being understood neither the Utility Sellers nor DTUENY has any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with fee ownership interest in any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3real property);
(b) All rightall tangible personal property, title including all machinery, equipment, dies, jigs, molds, patterns, tools, tooling, office furnishings, vehicles, transportation equipment and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All rightall inventories of raw materials, title work-in-process and interestfinished goods (including all such assets in transit, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining whether to or accruing to the benefit of the Leased Premisesfrom a Seller), including without limitation those items listed on Schedule 2.1(c) and all parts, supplies and components held for sale, together with all related packaging materials (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(gd) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets Intellectual Property (collectively, the “Seller Intellectual Property”);
(e) all oral and written contracts, purchase orders, sales orders, licenses, leases and other agreements, arrangements and understandings (collectively, “Contracts”), other than the Excluded Contracts (collectively, the “Assumed Contracts”);
(f) all licenses, permits, approvals, authorizations and consents of Governmental Entities and certification organizations, to the extent assignable (collectively, “Permits”);
(g) all advertising material, sales literature, promotional literature, catalogs and related material;
(h) All claims and rights of Seller under all agreementsbooks, contractsrecords, software license agreements, purchase and sale orders files and other executory contracts and commitments embodiments of Seller arising from or information, whether relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued past or prepaid advertising rightscurrent operations;
(i) All licensesall notes receivable, permitsaccounts receivable (including unbilled receivables), consents, use agreements, approvals, authorizations drafts and certificates other rights to payment and the full benefit of any Governmental Authority to the extent they relate to Seller’s Business all security (collectively, the “LicensesTransferred Receivables”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining all Benefit Plans expressly assumed pursuant to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records Section 6.2 (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books Assumed Benefit Plans”) and Records”);all assets attributable or related thereto; and
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c)advance payments, all claims, security prepaid items and other deposits, prepayments, prepaid expenses, refunds, all causes of action, choses in actionclaims, rights of recovery, warranties and guarantees with respect to Purchased Assets privileges against third parties (including without limitation the Inventorymanufacturer and seller warranties), rights of set off, all attorney-client privileges and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) related thereto and all federalother intangible rights and assets, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Dateincluding all goodwill.
Appears in 1 contract
Purchased Assets. Subject to and upon (a) At the terms and conditions set forth hereinClosing, at the Closing Seller Sellers shall sell, convey, sell, assign, transfer and deliver to Purchaser Buyer, and Purchaser Buyer shall purchase, acquire and accept from Sellers, all of Seller’s Sellers' assets, rights, privileges, properties, claims and contracts of every nature, kind and description, real and personal, tangible and intangible, absolute or contingent, wherever located and whether or not carried or reflected on the books and records of Sellers, primarily relating to, or used, held for use or intended to be used in connection with, the Business, except for the Excluded Assets, and, in the case of tangible property, located or based in or on the Real Property (the "Purchased Assets"). The Purchased Assets shall include, without limitation, the assets of Sellers described in clauses (i) through (xi) below, except for the Excluded Assets:
(i) All of the items of inventory and supplies relating to the Business, including without limitation, spare parts, fuel, and other items as agreed and set forth on Schedule 2.1(a)(i) (the "Inventory");
(ii) [Intentionally Omitted]
(iii) All of Sellers' machinery, equipment, fixtures, tools, fuel and water tanks, furniture, fixtures, data processing equipment, computers and peripheral equipment, and other personal property used or usable in connection with the Business, including, without limitation, the items listed in Schedule 2.1(a)(iii) (the "Fixed Assets");
(iv) All of Sellers' Licenses and Permits related to the Business and the Purchased Assets, as more fully set forth in Schedule 2.1(a)(iv);
(v) Subject to the limitations set forth in Section 2.2(a), all of Sellers' rights and benefits pursuant to or arising from Assumed Contracts;
(vi) Customer databases for the Business, including the associated database computer software;
(vii) All of Sellers' right, title and interest to the Real Property leased from the City of Chicago and located at Chicago Midway Airport (the "Midway Property") pursuant to the Hangar, Hangar Site and Commercial Aviation Sales and Support Services Agreement at Chicago Midway Airport between the City of Chicago and ▇▇▇▇▇▇▇ dated February 15, 1984, and all amendments thereto (the "FBO Lease");
(viii) Originals or true copies of all of the books, records, data and information relating to the Business (collectively, "Books and Records") for the period from December 31, 1993, to present, including without limitation all general, financial and accounting records, purchase orders and invoices, sales orders and sales order log books, personnel records, correspondence and miscellaneous records with respect to customers and supply sources, and all other general correspondence, records, books and files now owned or hereafter acquired by Sellers with respect to the Business, subject to Sellers' rights of access to such records pursuant to Section 6.5;
(ix) All of Sellers' customer and supplier lists, contacts and files, catalogues, brochures, pricing and other marketing information and materials, production supplies, form marketing literature and videos, and all similar data and materials of all kinds relating to the Business;
(x) All of Sellers' right, title and interest in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property vehicles used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”)Business, each of which is listed as set forth on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”2.1(a)(x); and
(pxi) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business The goodwill and other intangibles related to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing DateBusiness.
Appears in 1 contract
Sources: Asset Purchase Agreement (Aero Services International Inc)
Purchased Assets. Subject At the Closing, and subject to and upon the terms and conditions set forth herein, at the Closing applicable Seller shall convey, Entity will sell, assign, transfer transfer, convey and deliver deliver, or cause one or more of its Subsidiaries to Purchaser sell, assign, transfer, convey and deliver, free and clear of Liens (other than Permitted Liens) to Purchaser, and Purchaser shall will purchase, acquire and accept from each applicable Seller Entity or its applicable Subsidiaries, all right, title, interest and obligations of each applicable Seller Entity or its applicable Subsidiaries in, to, and under all of the following assets, properties, rights, Contracts and claims of each applicable Seller Entity or its applicable Subsidiaries, wherever located, whether tangible or intangible, real, personal or mixed (the “Purchased Assets”):
(1) the real property listed on Schedule 2.1(a)(1) and related improvements and fixtures, together with all assignable real property rights, benefits and appurtenances pertaining thereto (the “Purchased Real Property”);
(2) subject to the receipt of any required third-party consents, the real property leases, subleases, licenses or other Contracts listed on Schedule 2.1(a)(2) (the “Real Property Leases”);
(3) the furniture, equipment, materials and supplies owned by the Seller Entities and their respective Subsidiaries as of the Closing Date and located at the Business Premises, but excluding all proprietary systems or proprietary materials located in the Banking Premises (collectively, the “Purchased Personal Property”);
(4) subject to the receipt of any required third-party consents, the leases, subleases, licenses or other contracts associated with the furniture, equipment, materials and supplies leased by the Seller Entities and their respective Subsidiaries as of the Closing Date and located at the Business Premises (collectively, the “Personal Property Leases”);
(5) (i) the ATM units and the real property on which such ATMs are located that are owned by Seller or any of its Subsidiaries in connection with the Transferred Business, a list of which, as of the date hereof, is set forth on Schedule 2.1(a)(5)(i) (the “Purchased ATMs”), and (ii) subject to the receipt of any required third-party consents, all of Seller’s right, title and interest in and to all of or Seller’s tangible Subsidiaries’ rights with respect to the leases, subleases, licenses or other contracts pursuant to which Seller or any of its Subsidiaries leases real property on which ATMs are located, in connection with the Transferred Business, a list of which leases, as of the date hereof, is set forth on Schedule 2.1(a)(5)(ii) (the “ATM Real Property Leases”);
(6) the Loans (including any servicing and intangible assets usedother rights relating thereto of Seller or any of its Subsidiaries) made or purchased by Seller or any of its Subsidiaries in connection with the Transferred Business that are listed on Schedule 2.1(a)(6), held together with all Contracts evidencing or executed and delivered in connection with such Loans and including all obligations to make additional extensions of credit thereunder and all related collateral, excluding Nonperforming Loans (collectively, the “Purchased Loans”). The parties agree that no Nonperforming Loans shall be included in the Purchased Loans;
(7) all safe deposit Contracts and leases for use safe deposit boxes located at the Banking Centers (the “Safe Deposit Agreements”);
(8) the CRA-eligible loans, other than any Nonperforming Loans, listed on Schedule 2.1(a)(8) (the “CRA Assets”);
(9) subject to the receipt of any required third-party consents the Letters of Credit issued by Seller or any of its Subsidiaries that are listed on, Schedule 2.1(a)(9) together with all reimbursement agreements and related documents (including, but not limited to, any collateral documents) with respect to the Assumed Letters of Credit and all collateral in the possession of or otherwise granted to Seller or any way Affiliate of Seller in connection therewith (collectively, the “Assumed Letters of Credit”).
(10) subject to the receipt of any required third-party consents, the rights of the Seller Entities or their respective Subsidiaries with respect to the operating Contracts under which goods or services are provided exclusively in connection with the Transferred Business as conducted at the Banking Centers (the “Assumed Contracts,” and together with the Real Property Leases, ATM Real Property Leases, Assumed Letters of Credit and Personal Property Leases, the “Assumed Agreements”);
(11) all books, records and other data relating primarily to the Transferred Business, including all files (including suspicious activity reports to the extent permitted by Applicable Law), customer and supplier lists, mailing lists, accounting records, documentation or records primarily relating to its the Transferred Business or the administration of the Assumed Agreements and the Assumed Deposits, real property files with respect to Purchased Real Property and Real Property Leases (including lease documentation, maintenance records, plans and permits, to the extent in the possession of the Seller Entities or any of their respective Subsidiaries), catalogs, printed materials and all technical and other data relating to the Transferred Business other than (i) corporate minute books and, except for Forms W-8 and W-9 and similar tax forms provided to the Excluded Seller Entities or any of their respective Subsidiaries by customers of the Transferred Business, income tax records of the Seller Entities or any of their respective Subsidiaries, (ii) personnel files and records and (iii) books and records to the extent relating to accounts that have terminated prior to Closing; provided, however, that the Seller Entities and their respective Subsidiaries shall have the right to retain copies of all such books, records and other data that are part of the Purchased Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” the extent reasonably necessary for, and solely for use in connection with, tax, regulatory, litigation or “its Assets”)other legitimate, including without limitation:non-competitive purposes;
(a12) The any and all rights of the Seller Entities and benefits accruing their respective Subsidiaries that are by their terms transferrable and that have arisen, or that arise, under or pursuant to warranties, representations, indemnifications, reimbursement agreements, letters of credit, insurance policies to the extent held for the benefit of the Seller as lessee under Entities and their respective Subsidiaries in connection with the Transferred Business or guaranties in favor of the Seller Entities and their respective Subsidiaries or made for the benefit of the Seller Entities and their respective Subsidiaries by their respective customers, predecessors in interest, suppliers, vendors, or Affiliates of any immovable (real) property lease and/or sublease of the foregoing, to the extent relating to Seller’s the Purchased Assets or the Assumed Liabilities, in either case with respect to the period following the Closing;
(13) all U.S. cash on hand at the Banking Centers at the Close of Business existing on the date of this Agreement through the Closing Date, each including vault cash, ▇▇▇▇▇ cash, tellers’ cash, prepaid postage, bank orders, checks, certified checks and cash equivalents (exclusive of which is listed the contents of any safe deposit boxes) located at the Banking Centers, as determined by a cash count to be mutually conducted by Seller and Purchaser but excluding any cash contained in ATMs not physically located at the Banking Centers and cash contained in security vehicles or otherwise maintained in vaults by vendors on Schedule 2.1(a)-1behalf of Seller or Seller’s Subsidiaries, together whether or not associated with any leases which may be executed the Transferred Business (the “Cash on Hand”);
(14) accrued income receivable and accounts receivable of the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities Seller Entities and their respective Subsidiaries to lease that may arise the extent arising from the date Transferred Business and existing as of this Agreement through the Closing Date (the “Real Property LeaseBanking Receivables”), as set forth on the general ledger of the applicable Seller Entity maintained in the ordinary course of business of the Seller Entities in accordance with the internal controls and procedures of the Seller Entities, consistently applied.
(15) all prepaid charges and any fees of the Seller Entities and all Franchise Rights their respective Subsidiaries to the extent arising in the Transferred Business and Franchise Agreements listed existing as of the Closing Date (the “Prepaid Expenses”), as set forth on Schedule 2.1(a)-3the general ledger of the applicable Seller Entity maintained in the ordinary course of business of the Seller Entities in accordance with the internal controls and procedures of the Seller Entities, consistently applied;
(b16) All rightthe Purchased Overdrafts;
(17) subject to the receipt of any required third-party consents, title any income, commissions, compensation or allowances receivable or payable after the Closing Date in respect of annuities (including additional premium payments thereto after the Closing Date) and interest, if any, interests in mutual funds sold by the Seller Entities or any of their respective Subsidiaries in the conduct or operation of the Transferred Business on or prior to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located the Close of Business on the Leased PremisesClosing Date;
(18) the benefits, including without limitation those items listed on Schedule 2.1(brights, rights of action and claims (express or implied) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold ImprovementsPurchased Assets and Assumed Liabilities acquired and assumed by Purchaser pursuant to the terms of this Agreement;
(c19) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing subject to the benefit receipt of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectivelyany required third-party consents, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers Transferred Wealth Management Relationships and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Transferred Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”)Banking Relationships; and
(p20) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing DatePurchased Credit Card Accounts and Receivables.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (First Niagara Financial Group Inc)
Purchased Assets. Subject to and upon the terms and conditions set forth herein, at the Closing Seller shall convey, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept all of Seller’s right, title and interest in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation:
(a) The rights Schedule 1 sets forth a true and benefits accruing complete: (i) list of all unpatented mining claims included in the Mining Rights; and (ii) listing of all royalties, overriding royalties and payments out of production or sale on or in respect of such Mining Claims. With respect to Seller as lessee under any immovable (real) property lease and/or sublease relating the Mining Claims, to Seller’s Business existing on Knowledge: (A) all affidavits of assessment work, including fee payments required to maintain the date Mining Claims in good standing through the assessment year ending September 1, 2017, have been properly and timely recorded, filed and paid with appropriate governmental agencies; (B) Seller is the sole owner and has the exclusive possession of the Mining Claims free and clear of all Encumbrances except for Permitted Encumbrances and the Wyoming Bond Agreements, and subject to the paramount title of the United States; and (C) except for customary buffer and perimeter areas, there are no senior third-party unpatented mining claims that conflict with the Mining Claims. Nothing in this Agreement through shall be deemed to be a representation or warranty as to (i) whether any of the Closing DateMining Claims contains a discovery of valuable minerals, each (ii) whether or not any of which is listed the Mining Claims comprise a contiguous group of claims or are free from interior gaps or fractions, (iii) whether or not the Seller or its predecessors-in-title established or maintained pedis possessio rights with respect to any of the Mining Claims or (iv) what rights the Seller has to use the surface of any of the lands subject to the Mining Claims, except as such rights are defined on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;1.
(b) All right, title Schedule 1 sets forth a true and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable complete: (reali) list of all real property owned leased or subleased by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related pursuant to the Leasehold Improvements;Leases; (ii) description of the Leases and if applicable, subleases under which such real property is leased or subleased; (iii) listing of lessee or sublessee under each such Lease; and (iv) listing of all royalties, overriding royalties and payments out of production or sale on or in respect of the Leases. The Leases are in full force and effect and to Seller’s Knowledge are enforceable in accordance with their respective terms. Seller is not in material default under any Lease and to Seller’s Knowledge there exists no condition or event which, with the giving of notice or lapse of time or both, reasonably would be expected to cause any other party to be in default under any Lease. The Seller is in exclusive possession of such leased premises. All payments required to be made under each Lease have been made.
(c) All rightExcept as set forth in Schedule 1, title and interest, if any, no Person is entitled to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances royalty or other corporeal (tangible), movable (personal) property used payment in the operation nature of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”)a royalty on any minerals, each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations metals or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor concentrates or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to such products removed or produced from the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premisesMining Rights.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Date.
Appears in 1 contract
Purchased Assets. Subject to and upon the terms and conditions set forth hereinin this Agreement, Sellers hereby agree that at the Closing Seller (as defined in Section 3.1, below) they shall sell, transfer, convey, selland assign to Buyer free and clear of all mortgages, assigntaxes, transfer liens, security interests, pledges, encumbrances and deliver Claims (other than Permitted Liens and Encumbrances as defined on Schedule 1.1), and Buyer hereby agrees at the Closing to Purchaser and Purchaser shall purchase, acquire purchase and accept from Sellers all of Seller’s Sellers' right, title and interest in and to all items of Seller’s personal property, whether tangible or intangible, and intangible assets usedall interests in real estate, whether owned in fee or held under lease or license, used in the operation of the Restaurants, held or used for use Restaurants under development, or located in any way relating to its Business other than the Excluded Assets Restaurants (as hereinafter defined) (referred to hereinafter collectively as “Seller’s the "Purchased Assets” or “its Assets”"), including without limitationbut not limited to the following:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3Exhibit 1.1(a) and the items described in Section 3.2(f), below;
(b) All rightEach Seller's interest as lessee in and to the Real Property Leases (as defined in Section 4.4(c), title and interestbelow), if anyincluding all of each such Seller's interest under the Real Property Leases in the buildings, to fixtures, signs, parking facilities, trash facilities, fences, utilities, other leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) any and all architectural plans easements, rights, privileges, tenements, appurtenances and mechanical drawings hereditaments related to the Leasehold Improvementssuch Real Property Leases;
(c) All rightOwned Real Property (as defined in Section 4.4(a), title below), including all of Sellers' interest in the buildings, fixtures, signs, parking facilities, trash facilities, fences, utilities, other improvements, and interest, if any, to any and all easements, servitudesrights, privileges, rights-of-way tenements, appurtenances and other real rights of Seller pertaining to or accruing hereditaments related to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”)Owned Real Property;
(d) All machinery Assumed Contracts (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items as listed and described on Schedule 2.1(d) (collectively, the “Equipment”4.4(j));
(e) The rights All equipment and benefits accruing leasehold improvements used in the normal and customary operations of the Restaurants (whether or not located or installed in a Restaurant), including but not limited to Seller as lessee under any leases and/or subleases for equipmentthe furniture, machinery, appliances or other corporeal equipment, tables, chairs, cash registers, computer equipment, ovens, refrigerators, display cases, shelves, utensils, tools, pans, lights, uniforms, signs, menus, glasses, plates, dishes, silverware, pitchers, smallwares, books, cabinets, racks, towels, decor, bars, and bar equipment (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e"Equipment");
(f) All inventories of Seller’s inventory foodstuffs, beverages (including liquor), paper products, cleaning supplies and other supplies (the "Inventories") which are in connection with Seller’s Business, which as of the day before Restaurants on the Closing Date are those items listed and described on Schedule 2.1(f)-1(as defined in Section 3.1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”below);
(g) Seller’s Business as a going concern, its Franchise Rights, all All of Sellers' other rights and property interests of any nature which are customarily used in the operation of the rights and benefits (but not its obligations or liabilities) under its Franchise AgreementsRestaurants, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options rights to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its use existing Restaurant telephone numbers and the directory advertising for such telephone numbers, rights arising under equipment warranties to the extent assignable;
(mh) All domain namesassignable computer software and related manuals, websites data transmission equipment and other intellectual property of any kind or nature related software, software licenses ("Transferred Licenses"), and portable computers used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not field personnel and used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of the Restaurants, including those items set forth on Schedule 1.1(h) hereto;
(i) Stock in any entity (other than a Seller’s Business ) owned by any Seller which holds assets related to the extent transferable Restaurants;
(j) All original records and files (the Sellers may retain copies thereof) related to Purchaser but excluding the Real Property (as defined in Section 4.4(b) below) such as rent calculations, landlord correspondence, purchase agreements, deeds, construction documents, title reports, environmental and engineering reports, appraisals, surveys, etc.;
(k) All original accounting records and files (the Sellers may retain copies thereof) related to Retained Employees (as defined in Section 5.5(a)) in or assigned to the Restaurants who accept employment with Buyer as of the Effective Time (as defined in Section 3.4 below);
(l) All rights under all warranties, express or implied, or other claims for damages or loss (unless any tip credits or income tax credits usable by Seller up such Purchased Assets are replaced prior to the Closing DateDate or the Purchase Price has been reduced to reflect the loss of any such Purchased Asset) related to any of the Purchased Assets; and
(m) All cash in amounts normally used to open the Restaurants (not including prior day's receipts held for deposit), provided that in no event shall such cash be more or less than $1,000 per Restaurant.
Appears in 1 contract
Sources: Asset Purchase Agreement (Applebees International Inc)
Purchased Assets. Subject Seller hereby agrees to and upon the terms and conditions set forth herein, at the Closing Seller shall convey, sell, assigncontribute, convey, transfer and deliver assign to Purchaser Purchaser, free and clear of all Liens except Permitted Liens, and Purchaser shall purchase, acquire hereby agrees to purchase and accept from Seller, effective as of the Effective Time, all of Seller’s right, title and interest in and to all the assets of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business Seller other than the Excluded Assets Assets, including the following assets, properties and rights (as hereinafter defined) (referred to hereinafter collectively as collectively, the “Seller’s Assets” or “its Purchased Assets”), including without limitation:):
(a) The rights all fixed assets, including furniture, furnishings, fixtures, leasehold improvements, office equipment, telecommunications equipment, computer systems, mobile equipment and benefits accruing to other tangible personal property owned by Seller as lessee under any immovable (realor used or held for use in connection with the conduct of the Business, including the items listed or described in Schedule 1.1(a) property lease and/or sublease relating to of Seller’s Business existing on the date of this Agreement through the Closing DateDisclosure Letter (collectively, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property LeaseOwned Personal Property”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3);
(b) All rightall interests of Seller under (i) that certain Office Lease, title dated August 7, 2015, by and interestbetween Highwoods Realty Limited Partnership and Seller, if anyas amended by that First Amendment to Lease Agreement, to leasehold improvementsdated April 26, fixtures2017 (the “Office Lease”), constructions, component parts (ii) the Management Agreement and (iii) the other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed Contracts set forth on Schedule 2.1(b1.1(b) of Seller’s Disclosure Letter (collectively, the “Leasehold ImprovementsAssumed Contracts”) and all architectural plans and mechanical drawings related to the Leasehold Improvements);
(c) All rightall files and records (other than Excluded Records), title including but not limited to files and interestrecords relating to (i) the REIT, if anyPurchaser and the operations of the business of the REIT and Purchaser, (ii) the Purchased Assets; (iii) all Tax Returns, Tax filings or other Tax records not specifically treated as Excluded Assets in Section 1.2; (iv) liabilities assumed by Purchaser pursuant to easementsthis Agreement; (v) all supplier files, servitudes, privileges, rightsasset ledgers and financial records; (vi) all relationships with self-of-way storage developers and other real rights customers of Seller pertaining to or accruing the REIT; and (vii) to the benefit of the Leased Premisesextent permitted by Applicable Law, Continuing Employees, including without limitation those items listed on Schedule 2.1(c) copies of all personnel files of Continuing Employees, in each case, with respect to the Business (collectively, the “EasementsFiles and Records”);
(d) All machinery (to the extent transferable or assignable by their terms and pursuant to Applicable Law, all licenses, permits, approvals, authorizations, registrations, certificates, variances or similar rights issued by any Governmental Authority for the Business, including without limitation all computer hardware used in connection with the operation and maintenance those set forth on Schedule 1.1(d) of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal Disclosure Letter (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “EquipmentAssigned Permits”);
(e) The rights and benefits accruing all accounts receivable of the Business outstanding as of the Effective Time, including, to Seller the extent not paid as lessee under any leases and/or subleases for equipmentof the Effective Time, machinery, appliances or other corporeal those set forth on Schedule 1.1(e) of Seller’s Disclosure Letter (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment LeasesAccounts Receivable”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection all prepayments, prepaid expenses and deposits paid by Seller with Seller’s respect to the Business, which as of the day before the Closing Date are those items listed including lease, security and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed utility deposits and described on Schedule 2.1(f)-2 prepayments under any Assumed Contract (the “InventoryPrepaid Items”);
(g) Seller’s Business as a going concernall rights of Seller under non-disclosure or confidentiality, its Franchise Rightsnon-compete, or non-solicitation agreements with Employees or with third parties;
(h) all of the Employee Plans and trusts and other assets attributable thereto;
(i) all Seller Insurance Policies and insurance benefits, including rights and benefits proceeds, arising therefrom, and all other insurance benefits, including rights and proceeds arising from or relating to the Business, the Purchased Assets or the Assumed Liabilities;
(but not its obligations or liabilitiesj) under its Franchise Agreements, all intellectual property claims of Seller against third parties arising from or relating to the Business, the Purchased Assets or the Assumed Liabilities (including rights and proceeds arising therefrom);
(k) all Intellectual Property owned, licensed, used or held for use by Seller in connection with its businessthe operation of the Business, including without limitation, all trademarks, service marks, rights to computer the software, trade secrets (includingwebsites, without limitationdomain names, recipesforms and tradenames set forth on Schedule 3.14(a) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets Disclosure Letter (collectively, the “Seller Intellectual Property”);
(hl) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence goodwill relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;Business; and
(m) All domain namesall other assets or interests (other than Excluded Assets) to which Seller or any of its Affiliates has any right by ownership, websites use or otherwise, or in which Seller has a conveyable or assignable interest on the Closing Date and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating relate to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing DateBusiness.
Appears in 1 contract
Purchased Assets. Subject to and upon The Purchased Assets are the terms and conditions set forth herein, at the Closing Seller shall convey, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept all following assets of Seller’s right, title and interest in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation:
(a) The rights All of the billboard displays and benefits accruing to Seller as lessee under any immovable (realother out-of-home advertising structures set forth and described in Schedule 2.2(a) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1attached hereto, together with any leases which may be executed on all components, fixtures, parts, appurtenances and equipment attached to or made a part thereof (collectively, the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3"Purchased Structures");
(b) All rightleases, title licenses, easements, other rights of ingress or egress and interestall other grants of the right to place, if anyconstruct, own, operate, or maintain the Purchased Structures, or relating to leasehold improvementsunbuilt locations in Pleasantville, fixturesNew Jersey and Trenton, constructionsNew Jersey, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) all rights therein (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements"Site Leases"), including those Site Leases listed on Schedule 2.2(b);
(c) All right, title rights under advertising contracts and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to contracts for telecommunication equipment existing on the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) Closing Date (collectively, the “Easements”"Advertising Contracts") associated with (i) those structures on Schedule 2.2(c)(i) (the "Leased Structures") and (ii) the Purchased Structures (the Leased Structures and the Purchased Structures, collectively, the "Structures"), including those Advertising Contracts listed on Schedule 2.2(c) attached hereto; and all rights of Seller to the advertising copy displayed on the Structures as of the Closing Date;
(d) All machinery (including without limitation To the extent assignable, all computer hardware used in connection state and local licenses or permits/tags which Seller has with respect to the Purchased Structures and all other Governmental Authorizations that Seller has with respect to the operation and maintenance of Seller’s Business)the Purchased Structures, kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”"Permits");
(e) The rights and benefits accruing to All prepaid expenses of Seller as lessee under any leases and/or subleases for equipmentof the Effective Time relating to the Purchased Assets, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(esubject to proration at Closing pursuant to Section 2.6(a);
(f) All of Seller’s inventory in connection with Seller’s Business, pertinent Books and Records relating to the Purchased Assets (except for those related to the Leased Structures for which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which Buyer shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”receive only copies);
(g) Seller’s Business as a going concernAll furniture, its Franchise Rights, all of equipment and inventory used at the rights Plant and benefits (set forth on Schedule 2.2(g) but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names excluding those listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”2.2(x);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively Any Intangible Property used in connection with the “Assigned Contracts”) and all accrued or prepaid advertising rightsPurchased Assets not otherwise described in this Section 2.2;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), Any Contracts listed in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);2.3; and
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to To the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refundsrights (including any benefits arising therefrom), causes of action, choses in action, rights claims and demands of recovery, warranties and guarantees with respect to Purchased Assets whatever nature (including without limitation the Inventory), rights of set off, and rights of recoupment whether or not liquidated) of Seller (including any such item relating to the payment of taxes other than income taxes) Purchased Assets, including, without limitation, condemnation rights and proceeds, and all federalrights against suppliers under warranties covering any of the Purchased Assets. Notwithstanding the foregoing, state the Purchased Assets shall not include any accounts receivable, the Leased Structures, the Plant and local franchise and property tax credits the assets listed on Schedule 2.2(x) (“Claims”collectively, the "Excluded Assets");
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Date.
Appears in 1 contract
Purchased Assets. Subject to and upon the terms and conditions set forth hereinof this Agreement, at on the Closing Seller shall Date (as defined in Section 2.6), the Buyer agrees to purchase from the Sellers, and the Sellers agree to sell, convey, sell, assign, transfer and deliver to Purchaser the Buyer by appropriate instruments reasonably satisfactory to the Buyer and Purchaser shall purchaseits counsel, acquire free and accept clear of all Liens, all of Seller’s rightthe assets, title properties, rights, titles and interest interests of every kind and nature owned, licensed or leased by Sellers and used in or related to the Business (including indirect and to all other forms of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (beneficial ownership) as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1whether tangible, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 intangible or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) personal and any wherever located and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premiseswhomever possessed, including the Proprietary Rights, including, without limitation those items listed on Schedule 2.1(b) limitation, all of the following assets, but excluding all of the Excluded Assets and, for avoidance of doubt, excluding the Skae Beverage Business (collectively, the “Leasehold ImprovementsPurchased Assets”):
(i) all Company accounts, notes receivable and all architectural plans other receivables (including accounts receivable), including any prepayments and mechanical drawings related to the Leasehold Improvementsprepaid expenses;
(cii) All right, title all inventory and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit related supplies of the Leased PremisesSeller and all inventory in transit that has been purchased, including without limitation but not limited to those items listed on identified as Inventory in the NAV Schedule 2.1(cattached hereto as Schedule 2.1(a)(ii) (the “NAV Schedule”) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(giii) Seller’s all tangible assets of any kind, including all Fixed Assets identified in the NAV Schedule, together with the Accumulated Depreciation associated therewith (as such terms are set forth in the NAV Schedule), and including those assets listed in Schedule 5.4;
(iv) all claims, deposits, prepayments, warranties, guarantees, refunds, causes of action, rights of recovery, rights of set off and rights of recoupment of every kind and nature;
(v) all rights existing under those purchase orders to purchase goods or products relating to the Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on the attached “Schedule 2.1(g2.1(a)(v), goodwill and other intangible assets ” (collectively, the “Intellectual PropertyAssigned Purchase Orders”);
(hvi) All claims all rights under any warranties and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising indemnification obligations (whether implied or express) received from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority suppliers to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case pertain to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i)Purchased Assets;
(jvii) All filesthe right (but not the obligation) to hire any of the Company’s employees, operating manuals consultants, independent contractors and correspondence pertaining to the Equipment; brokers;
(viii) all customer Proprietary Rights, including electronic and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and hard copies of three years of financial records any custom software programs, data, web pages and all related underlying software and documentation;
(which financial records shall be certified by Queyrouze)ix) all permits, business bookslicenses, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Businessfranchises, and any correspondence relating to the Business other authorizations obtained from federal, state or reasonably local governments or governmental agencies or other similar rights, and all data and records pertaining thereto related to the Business (collectively, the “Books and RecordsGovernment Licenses”);
(kx) All all insurance, warranty, litigation, class action and condemnation proceeds received after the date hereof with respect to damage, non conformance of Seller’s rightor loss to the Purchased Assets, title or which otherwise pertain to the Business or the activities conducted therefrom or in connection therewith, and interest in all rights and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, proceeds under insurance policies to the extent assignablerelated to or payable in connection with any of the Purchased Assets or the Assumed Liabilities, including those that arise under any certificates of insurance from suppliers or their insurers;
(mxi) All domain names, websites all rights to receive mail and other intellectual property communications addressed to any of any kind or nature used by Seller in its Business the Sellers related to the Business, except for those items identified on Schedule 2.1(m), which items are not used or communications related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak Housethe Excluded Assets;
(nxii) Except as provided in Section 2.2(c), all claims, security telephone and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating facsimile numbers related to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”)Business;
(oxiii) Seller’s working cashcustomer lists, which shall be $1,000 per restaurant price lists and vendor lists and similar items related to the Business;
(xiv) copies of books, financial and other corporate records to the “Working Cash”)extent related to the Business;
(xv) all historical records, images, commercials, advertisements, brochures and similar items;
(xvi) all goodwill of the Sellers associated with the Business, including the goodwill associated with existing customer relationships of the Business; and
(pxvii) All tax credits or rights to credits available to Seller in connection with any Contract that, within a reasonable period of time after the operation disclosure of Seller’s Business such Contract to the extent transferable Buyer, the Buyer elects in writing to Purchaser but excluding any tip credits or income tax credits usable by Seller up to assume (the Closing Date“Assumed Contracts”).
Appears in 1 contract
Sources: Asset Purchase Agreement (Baywood International Inc)
Purchased Assets. Subject to The Purchased Assets shall include, without limitation, the following assets, properties and upon the terms and conditions set forth herein, at rights of Sellers as of the Closing Seller shall conveyDate, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept all of Seller’s right, title and interest except as otherwise expressly provided in and to all of Seller’s tangible and intangible assets used, held for use Section 1.1.2 or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitationSection 2.3 hereof:
(a) The rights all assets and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing properties reflected on the date of this Agreement through Balance Sheet and any assets and properties acquired since the Balance Sheet Date and on or before the Closing Date, each of which is listed except for: (i) inventory sold and Detroit Receivables collected after the Balance Sheet Date and on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through before the Closing Date, in the ordinary course of business consistent with past practices; and (ii) any immaterial tangible personal property used or disposed of in the ordinary course of business consistent with past practice after the Balance Sheet Date (and on or before the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3Closing Date;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property the Intellectual Property owned by Seller and located on or licensed to Sellers or used in the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, Business but excluding the right to use the “Leasehold Improvements”) Gibraltar” name and all architectural plans and mechanical drawings related to excluding any Intellectual Property which is not used exclusively in connection with the Leasehold ImprovementsBusiness;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of extent permitted by applicable Regulations, all rights under each Assumed Contract and each Authorization which is used in or related to the Leased PremisesBusiness, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”)all pending applications therefor or renewals thereof;
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises rights under express or otherwise implied warranties from third Persons relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”)Purchased Assets to the extent transferable;
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, all machinery, appliances or other corporeal equipment (tangibleincluding cranes), movable tools, dies, furniture, furnishings, fixtures, goods and other tangible personal property (personalincluding rolls, spare motors and parts, repair parts, etc.) property used in of the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”Business, including, without limitation, those items set forth on SCHEDULE 1.1.1(e), each of including all such items which is listed on Schedule 2.1(e)are located at the Buffalo Facility and the Detroit Facility, but excluding those repair parts related to the building and the building systems at the Buffalo Facility;
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before Cleveland Real Property and the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”)Detroit Real Property;
(g) Seller’s Business as a going concern, its Franchise Rights, all inventory of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (Business including, without limitation, recipes) finished products, work in process, parts, components, products under research and trade names (whether acquired from Purchaserdevelopment, an Affiliated franchisor or otherwise)raw materials, (including without limitation all packaging materials, labels, office and other supplies, merchandise and other inventories of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets Business (collectively, “Intellectual PropertyInventories”);
(h) All claims all trucks, tractors, trailers and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) motor vehicles used in connection with the Business (each an “Assigned Contract” and collectively the “Assigned ContractsVehicles”) and all accrued or prepaid advertising rights);
(i) All licensesall accounts, permitsnotes and other receivables and other rights to payment from customers of the Detroit Business (regardless of whether such customers are also customers of the Buffalo Facility and/or the Cleveland Facility) and the full benefit of all security for such receivables or rights to payment but in any case, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority only to the extent they relate to Seller’s Business (collectivelythat such accounts, the “Licenses”), in each case notes and other receivables are attributable to the extent transferable by operations of the Seller, including without limitation those listed on Schedule 2.1(iBusiness at the Detroit Facility (“Detroit Receivables”);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies prepaid expenses of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to and all unbilled costs and fees of the Business (collectively, the “Books and Records”)Business;
(k) All all other information, files, books, records, data, plans, contracts and recorded knowledge, including, without limitation, customer and supplier lists, related to any of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.foregoing; and
(l) All all goodwill and going concern value of Seller’s rightthe Business, title as well as all other assets, properties and interest in rights associated with the Business, whether or not such assets, properties and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property rights are properly included on a balance sheet of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing DateSellers.
Appears in 1 contract
Sources: Asset Purchase Agreement (Gibraltar Industries, Inc.)
Purchased Assets. Subject to and upon the terms and conditions set forth herein, at (i) At the Closing (as defined below), Seller shall convey, sell, assign, transfer transfer, convey and deliver to Purchaser Buyer and Purchaser Buyer shall purchase, acquire accept and accept purchase all of Seller’s right, title and interest in and to all of the assets, properties, rights, interests, claims and goodwill of Seller’s , tangible and intangible assets usedintangible, held for use or in any way relating to its Business other than of every kind and description, including all of the Excluded Assets capital stock of the subsidiaries of the Seller (as hereinafter defined) (referred to hereinafter collectively as the “Seller’s Assets” or “its AssetsAcquired Subsidiaries”), including without limitation:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date same shall exist as of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaserthe assets, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims properties and rights of the Seller under reflected in the Schedule of Purchased Assets attached hereto and labeled Schedule 1.1(a), together with all agreementsassets, contractsproperties and rights acquired by Seller of a similar nature since the date of such Schedule, software license agreementsless such assets, purchase properties and sale orders and other executory contracts and commitments rights as may have been disposed of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) since said date in the ordinary course of business; but specifically excluding the Excluded Assets (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “LicensesPurchased Assets”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(lii) All of Seller’s The Purchased Assets include, without limitation, all right, title title, and interest in and to all of the assets of the Seller, including all of its telephone numbers (a) tangible personal property (such as tangible capital machinery and equipment, computer and communications equipment, inventories, raw materials, work in progress, supplies, furniture, tools, and other mobile equipment), (b) intellectual property (including but not limited to various intellectual property rights, product formulations, websites, social media, trademarks and patents (whether or not registered or registrable) and any franchise, strategic alliance or joint venture), goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against infringements thereof, and rights to protection of interests therein under the directory advertising laws of all jurisdictions, (c) leases, (including equipment leases), subleases, and rights thereunder with respect to both real and personal property, (d) accounts, notes, trade and other receivables, (e) purchase orders, agreements, contracts, instruments, purchase commitments for such telephone numbersraw materials, goods and other services, and rights thereunder to the extent assignable;
such items can be transferred, assigned, conveyed and/or delivered, (mf) All domain names, websites and securities (other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(mthan the Buyer Shares (as defined below)), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(ng) Except as provided in Section 2.2(c), all claims, security and other deposits, rebates, discounts earned, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller recoupment, (including any h) franchises, approvals, permits, licenses, orders, registrations, certificates, variances, and similar rights obtained from governments and governmental agencies to the extent such item items can be transferred, assigned, conveyed and/or delivered, (i) books, records, financial statements, ledgers, accounting systems, files, documents, collateral information, databases, plans, specifications, technical information, websites, electronic data and files, correspondence, pricing schedules, catalogs, advertising and promotional materials, studies, reports, customer and contractor lists, marketing and recruiting processes, employment and training manuals, and other printed or written material relating to the payment of taxes other than income taxes) Purchased Assets and all federalproprietary rights pertaining to such materials, state (j) all phone numbers and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business domain names related to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to Purchased Assets, and (k) all other tangible and intangible assets of the Closing DateBusiness; provided, however, that the Purchased Assets shall not include the Excluded Assets.
Appears in 1 contract
Purchased Assets. Subject to and upon Section 2.2, the terms and conditions set forth herein, at the Closing Seller "Purchased Assets" shall convey, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept consist of all of Seller’s the Company's and each of its Subsidiaries' entire right, title and interest in and to all of Seller’s tangible and intangible assets usedthe following, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitationwherever located:
(a) The rights and benefits accruing to Seller as lessee under any immovable all of the outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company set forth in Section 2.1(a)(i) of the Disclosure Letter (real) property lease and/or sublease relating to Seller’s Business existing on collectively with the date direct or indirect Subsidiaries of this Agreement through such Subsidiaries, the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3"Transferred Subsidiaries");
(b) All right, title all Owned Real Property and interest, if any, to leasehold all rights of the Company in respect of the Leased Real Property (including subleaseholds) described in Section 6.14 of the Disclosure Letter and all improvements, fixtures, constructionsand fittings thereon, component parts and easements, rights-of-way, and other immovable appurtenants thereto (real) property owned by Seller such as appurtenant rights in and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(bto public streets) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements"Real Property");
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premisesall tangible personal property, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliancesmachinery, equipment, furniture, vehicles, smallwarestrailers, utensilstools, glassware, table clothsinstruments, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets inventories (including, without limitation, recipesraw materials, purchased goods, goods and work in process, supplies (including storeroom supplies) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwisefinished goods), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant)pallets, including without limitation the trade names listed on Schedule 2.1(g)office and laboratory equipment, goodwill materials, fuel and other intangible assets similar personal property not normally included in inventory, that relates primarily to the Business or is otherwise included in the Purchased Assets (collectively, “Intellectual the "Tangible Personal Property”");
(hd) All all warranties and all claims in respect of deposits, prepayments and refunds and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating set off against third parties that relate primarily to its the Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(ie) All licenses, permits, consents, use agreements, approvals, authorizations any and certificates all rights of any Governmental Authority an insured party in respect of insurance claims to the extent they related to the Business or to the Purchased Assets, all to the extent provided in the Insurance Claims Agreement;
(f) all Permits, Orders and similar rights obtained from Governmental Entities, that relate primarily to Seller’s Business (collectivelythe Business, the “Licenses”)Owned Real Property, the Leased Real Property or are otherwise included in each case the Purchased Assets, but only to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i)their terms;
(jg) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business all books, records, ledgers, files, documents, business correspondence, customer files, supplier lists, parts lists, vendor lists, lists, plats, architectural plans, budgets, financial statementsdrawings and specifications, creative materials, advertising and promotional materials, corporate policy documentsstudies, architectural plansreports, mechanical drawingsand other similar printed or written commercial materials, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating that relate primarily to its the Business, the Owned Real Property, the Leased Real Property or are otherwise included in the Purchased Assets or that are owned by the Transferred Subsidiaries;
(h) all agreements, contracts, leases, subleases, indentures, mortgage documents and any correspondence relating commitments, instruments, documents and commitments creating security interests, guarantees, customer orders, purchase orders, dealer and distributorship agreements, supply agreements, licenses, sublicenses, joint venture agreements, partnership agreements and other similar arrangements and commitments and rights thereunder, that relate primarily to the Business or reasonably related to the Business Purchased Assets (collectively, but excluding this Agreement and the “Books Ancillary Agreements, "Contracts"), including, without limitation, those Contracts set forth in Section 6.4 of the Disclosure Letter, the Consultancy Agreements and Records”)Collective Bargaining Agreements listed in Section 6.7(a) of the Disclosure Letter and any agreement to which an Available Employee is a party;
(i) all accounts and notes receivable arising in respect of the operation of the Business;
(j) the Business-Related Intellectual Property;
(k) All of Seller’s rightthe tangible or physical materials embodying all computer software, product literature and advertising material, specifications, credit information, inventory, marketing, personnel, financial, title and interest in other documents, data and any right similar information and material, however stored, that relate primarily to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options Business or to lease adjacent property or options to purchase the leased premises.Purchased Assets;
(l) All the cash, cash equivalents and short term investments held by the Transferred Subsidiaries (other than Carter-Horner Inc.) as of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignableClosing Date;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to $1,000,000 ▇▇▇▇’▇ ▇▇▇▇▇▇▇▇▇ Steak House;
value of cash, cash equivalents and short term investments held by Carter-Horner Inc. (n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”"Carter-Horner Retained Cash Amount");
(o▇) Seller’s working cash▇▇▇ assets in re▇▇▇▇▇ ▇▇ ▇▇▇ Assumed Pension Plan and the life insurance policies underlying the Split Dollar Agreements listed on Section 6.7(a) of the Disclosure Letter and the assets, which shall be $1,000 per restaurant (the “Working Cash”if any, transferred in accordance with Section 9.1(h); and
(po) All tax credits all other assets of the Company or rights to credits available to Seller in connection with the operation any of Seller’s Business its Subsidiaries that relate primarily to the extent transferable to Purchaser but excluding any tip credits Business or income tax credits usable by Seller up to the Closing DatePurchased Assets.
Appears in 1 contract
Sources: Asset Purchase Agreement (Church & Dwight Co Inc /De/)
Purchased Assets. Subject to In reliance upon the representations, warranties and agreements herein contained and upon the terms and subject to the conditions set forth hereinin this Agreement, at Seller hereby agrees to sell (except that it agrees to license or sublicense to the Closing Seller shall convey, sellextent of Seller's right to sublicense Licensed Software or that of a Licensee), assign, transfer transfer, convey and deliver to Purchaser Purchaser, and Purchaser shall purchasehereby agrees to purchase and acquire from Seller, acquire and accept on the Closing Date, all of Seller’s 's right, title and interest in and to all of Seller’s tangible and intangible assets usedthe Assets described in Exhibits A, held for use or in any way relating to its Business other than the Excluded Assets AA, B, C, D (as hereinafter defined) (referred and to hereinafter collectively as “Seller’s Assets” or “its Assets”the extent provided herein), including without limitationDD, E, F and G attached hereto, which Assets include:
(a) The rights Contracts listed and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease described in Exhibit A, and all books and records relating to Seller’s Business existing on the date Contracts, including attendant vendor files, invoices with supporting documentation, business and technical records, and correspondence, including the executory portion of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights sales orders, bids and Franchise Agreements listed on Schedule 2.1(a)-3quotations as set forth in Exhibit A;
(b) Equipment- All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on equipment described in the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvementsattached Exhibit B;
(c) The Inventory- All rightraw materials, title work in process and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items finished goods listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rightsattached Exhibit C;
(i) All licensesLicenses and permits used in the Business, permits, consents, use agreements, approvals, authorizations the Intellectual Property (set forth on Exhibit D) and certificates of any Governmental Authority trade secrets and intangible property used exclusively in the Business (provided however that to the extent they relate any such Intellectual Property, unspecified intellectual property rights and all other specific items referred to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(jthis Section 1.1(d)(i) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
items described in Section 1.1(d) (mii) All domain names, websites and other intellectual property of any kind are used or nature used usable by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with any respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation Business or any business of Seller involving Governmental Customers as defined below), Purchaser agrees to grant, and does hereby grant back to Seller and Seller hereby accepts from Purchaser a nonexclusive irrevocable, perpetual, royalty-free, worldwide right and license -to-use such Intellectual Property for products and/or services provided by Seller solely to Governmental Customers ("Governmental Customers" shall mean any office, department, agency or instrumentability of (i) the government of the United States, (ii) any foreign government (iii) any state, country or local government or governmental subdivision, or (iv) any state or political subdivision of any foreign country)) including: a) all applications for patents; b) patent disclosures; c) proprietary trade secrets and know-how; d) any rights which Seller has with respect to potentially patentable technology and other items on which any persons employed in the Business have worked during and arising out of their employment with Business for which patent applications have not yet been filed but disclosures have been made to Seller’s Business 's cognizant patent committee; e) design rights relating to the extent transferable Business; f) domain name of the Business, if any; g)trademarks and trade names issued and pending relating exclusively to the Business; source code, if any, used exclusively in the Business: h) brochures, videos and websites, if any, exclusively of the Business, but in all cases only those items in subsections (d)(i) (c) through (h) that arise solely from or are used exclusively in the Business are considered Assets as such term is used in this Agreement; any intangible property rights including those described in clauses (a) through (h) above that have been used in and are necessary to the products and services of the Business as conducted heretofore but that also relate to business, assets or products of Seller that are not transferred outright to Purchaser but excluding by this Agreement are hereby available to Purchaser pursuant to a royalty-free, non-exclusive license from Seller and Seller agrees to grant and does hereby grant to Purchaser, and Purchaser hereby accepts from Seller, an unrestricted non-exclusive, irrevocable, perpetual, fully paid up royalty-free, worldwide right and license to such intangible property (which rights shall be assignable and include the right to freely sublicense) including, not by way of limitation, rights relating to Patent Disclosure BD-96-189 entitled "A High Power, Low Disturbance Electronic Circuit Assembly". However, in no event does the Purchaser obtain the right within this Agreement to sublicense or assign intangible property rights including intellectual property for any tip credits or income tax credits usable by Seller up to other use than as used in the Closing DateBusiness as defined.
Appears in 1 contract
Purchased Assets. Subject At Closing, Buyer shall purchase and Seller shall sell, transfer, assign and deliver to Buyer for the consideration and upon the terms and conditions hereinafter set forth hereinforth, at all assets of the Closing Seller Door-Aid Division (the "PURCHASED ASSETS") not otherwise expressly excluded pursuant to Section 1.2 of this Agreement. The Purchased Assets shall conveyinclude, sellbut not be limited to, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept all of Seller’s right, title and Debtor's interest in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitationfollowing:
(a) The rights All outstanding and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is uncollected accounts and notes receivable listed on Seller's Aged Receivables Report attached hereto as Schedule 2.1(a)-1, together with any leases which may be executed on the immovable 1.1
(reala) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3"ACCOUNTS RECEIVABLE");
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located inventory listed on the Leased Premises, including without limitation those items listed on Inventory Report attached hereto as Schedule 2.1(b1.1
(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements"INVENTORY");
(c) All righttrademarks, title trade names, trade styles and interestlogos (and all goodwill associated therewith), if anyregistered or unregistered, to easementsand all applications, servitudes, privileges, rights-of-way registrations and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware licenses therefor used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, suppliesDoor-Aid Division, and all patents and licenses therefor used in the Door-Aid Division and all leases and licenses of other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) intellectual property used in the operation of its Business (each an “Equipment Lease” Door-Aid Division and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller telephone numbers used in connection with its businessthe Door-Aid Division, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, foregoing items including without limitation those listed on Schedule 2.1(h1.1(c) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rightshereto;
(id) All licenses, permits, consents, use agreements, approvals, authorizations customer files and certificates of any Governmental Authority records relating to the extent they relate to Seller’s Business Door-Aid Division;
(collectivelye) All personal property such as furniture, equipment, tools, machinery used in the “Licenses”Door-Aid Division (the "PERSONAL PROPERTY"), in each case to the extent transferable by the Seller, including without limitation those items listed on Schedule 2.1(i1.1(e);; and
(jf) All files1992 Ford Aerostar Van, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to VIN # 1FDA 15 UONZA 79477. EXCEPT AS SPECIFI▇▇▇▇’▇ ▇▇▇▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c)▇▇ ▇▇▇▇▇▇▇ ▇▇▇, all claims▇▇▇▇▇▇ ▇S SELLING THE PURCHASED ASSETS TO BUYER IN AS IS, security and other depositsWHERE IS CONDITION. ALL WARRANTIES, prepaymentsEXPRESS OR IMPLIED WITH RESPECT TO THE PURCHASED ASSETS AND THE DOOR-AID DIVISION, prepaid expensesINCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing DateARE EXPRESSLY DISCLAIMED.
Appears in 1 contract
Sources: Asset Purchase Agreement (International Research & Development Corp)
Purchased Assets. Subject to and upon On the terms and subject to the conditions set forth hereincontained in this Agreement, at the Closing (as defined below), Seller shall sell, transfer, convey, sell, assign, transfer and deliver to Purchaser Buyer, and Purchaser Buyer shall purchasepurchase from Seller, acquire free and accept clear of all of Seller’s Liens, other than Permitted Liens, all right, title title, and interest of Seller in and to all the following assets and rights of Seller’s tangible and intangible assets usedSeller (collectively, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Purchased Assets”), including without limitation:):
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on right to all commission and other revenue generated from each Client Account set forth in Section 1.1(a) of the date of this Agreement through Seller Disclosure Schedule as updated within twenty-four (24) hours after the Closing Date(each a “Pending Title File” and collectively, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property LeasePending Title Files” and the commission and other revenue generated from such Pending Title Files, the “Pending Title Files Revenues”) ), and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3subject to the Transition Services Agreement;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items Fixed Assets listed on Section 1.1(b) of the Seller Disclosure Schedule;
(c) all rights of Seller under all Contracts listed on Section 1.1(c) of the Seller Disclosure Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “EasementsAssigned Contracts”);
(d) All machinery (including without limitation all computer hardware used in connection with rights of Seller under Leases as listed on Section 1.1(d) of the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”)Seller Disclosure Schedule;
(e) The rights all Books and benefits accruing to Seller Records, except as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used provided in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(eSection 1.2(d);
(f) All of Seller’s inventory to the extent included in connection Closing Working Capital (as finally determined in accordance with Seller’s BusinessSection 1.6), all prepaid expenses (excluding refundable insurance premiums for policies which as are non-transferable and any prepaid rental payments) and deposits, deferred charges, advance payments, security deposits and prepaid items primarily relating to the Purchased Assets or the operation of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”)Business;
(g) the IT Assets set forth in Section 1.1(g) of the Seller Disclosure Schedule;
(h) all Accounts Receivable to the extent included in Closing Working Capital (as finally determined in accordance with Section 1.6);
(i) all of Seller’s Business as a going concernclaims (including warranties, its Franchise Rightschoses in action, all causes of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marksaction, rights of recovery, rights of set-off, and rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwiseenforcement of restrictive covenants), (including without limitation all of the Seller’s right to do or develop business as a whether ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant)or inchoate, including without limitation the trade names listed on Schedule 2.1(g)known or unknown, goodwill and other intangible assets (collectivelycontingent or non-contingent, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or against Third Parties relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectivelyPurchased Assets, the “Licenses”)Assumed Liabilities, or the Specified Doma Corporate Employees who become employed by Buyer or its Affiliates in each case to connection with the extent transferable transactions contemplated by the Seller, including without limitation those listed on Schedule 2.1(i)this Agreement;
(j) All filesall of the shares, operating manuals and correspondence pertaining to membership interests or other securities owned by Seller in the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies entities listed in Section 1.1(j) of three years of financial records the Seller Disclosure Schedule (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to including the Business or reasonably related to the Business (collectively, the “Books and Records”Title Plants);
(k) All the creative, promotional, marketing or advertising materials (whether in hard copy or computer or other electronic format) of Seller’s right, title and interest Seller primarily used in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.Business;
(l) All the educational, training or similar materials of Seller’s rightSeller primarily used in the Business for the training or education of customers, title and interest in and to its telephone numbers and the directory advertising for such telephone numbersemployees, to the extent assignableor independent contractors;
(m) All domain namesall customer lists, websites price lists, and other intellectual property of any kind or nature used by Seller in its Business except for those vendor lists and similar items identified on Schedule 2.1(m), which items are not used or related to Seller’s the Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak Housebe provided to Buyer pursuant to the Transition Services Agreement;
(n) Except as provided the documents and forms used by Specified Doma Corporate Employees related to the Business set forth in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes 1.1(n) of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set offSeller Disclosure Schedule, and rights of recoupment of Seller (including any such item relating subject to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);Transition Services Agreement; and
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business subject to the extent transferable Transition Services Agreement, copies and data extracts (in form reasonable acceptable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to Buyer) of certain information for the Closing DateClosed Title Files.
Appears in 1 contract
Purchased Assets. Subject Upon and subject to and upon the terms and conditions set forth hereinprovided in this Agreement, Seller shall, at the Closing Seller shall Closing, convey, sell, assigntransfer, transfer assign and deliver to Purchaser and Purchaser shall purchase, acquire and accept Buyer all of Seller’s 's right, title and interest in and to all of Seller’s tangible its assets and intangible assets usedproperties (real, held for use or in any way relating to its Business other than personal and intangible), including, but not limited to, the items specifically listed and described below and on the schedules attached hereto (but excluding Excluded Assets (as hereinafter definedAssets) (referred to hereinafter collectively as “Seller’s collectively, the "Purchased Assets” or “its Assets”), including without limitation:"):
(a) The rights All merchandise, inventories, materials and benefits accruing supplies of Seller, including items in transit from vendors and also including guaranties and warranties running to the benefit of Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3regard thereto;
(b) All rightcash on hand and at banks, title and interestother cash items of Seller at the close of business on the Closing Date, if any, to leasehold improvements, fixtures, constructions, component parts all receivables and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related accrued payments or obligations which have inured or shall inure to the Leasehold Improvementsbenefit of Seller;
(c) All rightmachinery, title and interestequipment, if anyoffice equipment, to easementsfurniture, servitudescomputers, privilegesleasehold improvements, rights-of-way fixtures, trade fixtures, supplies and other real personal property owned by Seller and rights of Seller pertaining to or accruing to the benefit of the Leased Premisesevery kind and description, including tangible and intangible, and all warranties and guaranties thereto and rights of action of Seller therefor, including, without limitation those items listed limitation, all automobiles, trucks, trailers, automotive equipment and other vehicles owned by Seller, all of which vehicles are described on Schedule 2.1(c) (collectively, the “Easements”);
(d) (reserved)
(e) All machinery (including of the right, title and interest of Seller or its affiliates in and to all Intellectual Property of Seller, including, without limitation limitation, any Web page or HTML site, and any and all computer hardware variations or derivations thereof and in and to all logos, insignias and advertising materials bearing the names "Suntex" and "FLYING START," to the name of Seller and all brand names and trademarks and all technology and technical information related to, necessary for or used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies's business, and other corporeal (tangible)all secrecy agreements of Seller or its affiliates with others, movable (personal) property located on the Leased Premises or otherwise including employees, relating to Seller’s Businessdisclosure, including without limitation those items listed and described on Schedule 2.1(d) (collectively, assignment or patenting of any of the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e)foregoing;
(f) All of the right, title and interest of Seller in, to and under all leases, subleases, licenses and/or other occupancy agreements affecting the real property described in Schedule 2.1(d) (individually a "Lease" and collectively, the "Leases"), the estates created thereunder and all improvements, fixtures, affixations and fittings located on the premises covered thereby owned by Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all All of the rights right, title and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property interest of Seller used in connection with its businessand to all agreements, including without limitationcontracts and contract rights, all trademarkspurchase and sales contracts and orders, service markslicense agreements, rights to computer softwarefranchises, booking agreements, trade secrets and barter agreements and all other agreements and contracts relating to or necessary for the operation of Seller's business ("Contracts"), including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor those listed or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed described on Schedule 2.1(g), goodwill ) and other intangible assets (collectively, “Intellectual Property”)to all Governmental Authorizations listed or described on Schedule 5.7;
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, credits and prepaid expensesitems, refunds, causes of action, choses in actionactions, pending litigation, judgments, settlements, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory)rights of set-off, rights of set offrecoupment and demands on others of every kind and nature relating to the Purchased Assets or related to or arising from the operation of Seller's business, whether now existing or hereafter arising;
(i) All original files and rights of recoupment records of Seller (including any such item relating all financial records and computer runs and programs related thereto) pertaining to the payment of taxes other than income taxes) Purchased Assets and all federalother books, state records, files, documents, correspondence, reports and local franchise lists of suppliers and property tax credits customers including, but not limited to, general ledger, all sales and credit records, accountants' working papers, advertising and sales material, literature and personnel and payroll records of Seller (“Claims”provided, however, that Tax Returns may be copies) (the "Records"), to which Seller shall have access pursuant to Section 8.4(a);
(oj) Seller’s working cash, which shall be $1,000 per restaurant (The Seller as a going concern and the “Working Cash”)goodwill thereof; and
(pk) All tax credits other assets, properties, rights and the entire business, of every kind and nature, owned or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable held by Seller up or in which Seller has an interest (except for the Excluded Assets), known or unknown, fixed or unfixed, ▇▇▇▇▇▇ or inchoate, accrued, absolute, contingent or otherwise, whether or not specifically referred to the Closing Datein this Agreement, including, without limitation, all Governmental Authorizations, securities, automobiles, trucks and trailers.
Appears in 1 contract
Purchased Assets. Subject to and upon On the terms and subject to the conditions set forth hereinof this Agreement, at on the Closing Date, Seller shall convey, Parent agrees to cause the Asset Sellers to sell, assigntransfer, transfer convey and deliver to Purchaser Buyer (or one or more Designated Purchasers), and Purchaser shall purchaseBuyer agrees to (or cause one or more Designated Purchasers to) purchase from the Asset Sellers, acquire and accept all of Seller’s the Asset Sellers’ right, title and interest as of the Closing in the following property and to all of Seller’s tangible and intangible assets usedassets, held for use or in any way relating to its Business each case other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) Equity Interests (collectively, the “Leasehold ImprovementsPurchased Assets”), free and clear of all Encumbrances other than Permitted Encumbrances:
(i) All of the assets of the type reflected on the Reference Balance Sheet, including accounts receivable (including the Interim Termination Fee Accounts Receivable), work-in-process, prepaid expenses and all architectural plans and mechanical drawings any other current assets, to the extent related to the Leasehold ImprovementsBusiness, any asset included in the Final Working Capital, all cash and cash equivalents included in the Final Cash Amount and the Interim Termination Fee Collection Amount;
(cii) All rightContracts primarily related to the Business and those Contracts set forth on Schedule 2.1(b)(ii) (other than (x) real estate leases and subleases, title (y) the Specified Excluded Contracts and interest(z) the Multiparty Shared Client Contracts) (collectively with the Transferred Leases, if anythe “Transferred Contracts”), subject to easementsSection 2.2 and the rights and obligations under the Buyer Ancillary Agreements, servitudes, privileges, rights-of-way and other real all rights of Seller pertaining under Shared Contracts to the extent relating to or accruing to the benefit arising out of the Leased PremisesBusiness and all rights with respect to confidentiality and non-use provisions under nondisclosure, including without limitation those items confidentiality or similar agreements entered into with bidders or other third parties in connection with the sale of the Business;
(iii) The real estate leases and subleases listed on Schedule 2.1(c2.1(b)(iii) (collectively, the “EasementsTransferred Leases”);
(div) All machinery (including without limitation To the extent legally transferable, all computer hardware used in connection with Governmental Permits primarily related to the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(ev) The rights All personnel, benefits and benefits accruing payroll records of Continuing Employees, in each case to Seller as lessee under any leases and/or subleases for equipmentthe extent permitted by Requirements of Law; and, machinery, appliances or other corporeal (tangibleexcept to the extent excluded pursuant to Section 2.1(c)(ix), movable all other books and records (personalwhether in hardcopy or digital format and whether stored in network facilities or otherwise) property used primarily related to the Business and in the operation possession or control of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as any of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets Asset Sellers (collectively, “Books and Records”); provided that the Selling Parties and their respective Affiliates shall have the right to keep and use a copy of all Books and Records where necessary to comply with any Requirements of Law or reasonably necessary for use in connection with each Selling Party’s preparation of Tax Returns, the administration of any Seller Parent Benefit Plans, the preparation of the Selling Parties’ financial statements, the fulfillment of obligations under the Transition Services Agreement or in connection with investigations or litigation or for any regulatory purpose;
(vi) All rights of the Asset Sellers under any refunds, deposits, claims, causes of action, rights of set off and rights of recoupment, in each case, to the extent primarily related to the Business;
(vii) All Intellectual Property owned or purported to be owned by any Asset Seller that is primarily related to the Business, together, in each case, with all Ancillary IP Rights in and to such Intellectual Property (the “Transferred Intellectual Property”);
(hviii) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from Software owned or relating purported to its be owned by the Asset Sellers primarily related to the Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(iix) All licensesgoodwill of the Business;
(x) Each Business Subsidiary Plan and the assets, permitsif any, consents, use agreements, approvals, authorizations thereof and certificates all assets specifically required to be transferred to Buyer pursuant to Section 8.3 (including the portion of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(iSeller Parent Spin-Off Plans);
(jxi) All filespersonal property, operating manuals including machinery, equipment, furniture, tools, laptop computers, mobile phones, computer hardware and correspondence pertaining to network infrastructure and other hardware and tangible property included in the Equipment; all customer IT Systems, that is owned by the Asset Sellers and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably primarily related to the Business (collectively, the “Books and Records”)Business;
(kxii) All marketing and advertising materials primarily related to the Business, subject to the terms of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers Section 8.1 and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”)Transitional Trademark License Agreement; and
(pxiii) All tax credits or rights to credits available to Seller assets of a type not specifically described in connection with the operation of Seller’s Business clauses (i) through (xii) above that are primarily related to the extent transferable Business. For purposes of this Agreement, (x) a Client Contract is “primarily related to Purchaser but excluding any tip credits or income tax credits usable the Business” if (and only if) the revenue received in respect of the Business in respect of such Client Contract during the twelve-month period ended December 31, 2016 exceeds the revenue received in respect of such Client Contract by Seller up Parent and its Affiliates other than in respect of the Business during such twelve-month period, (y) personal computing assets, including laptop computers and mobile phones, are “primarily related to the Business” if (and only if) they are primarily used by a Continuing Employee and (z) whether any property, asset, goodwill or right owned by Seller Parent or any Selling Party meets a standard of “primarily related to” or “primarily used or held for use in” (or any similar standards) for purposes of establishing whether it constitutes a Purchased Asset or Excluded Asset, shall be determined by considering the twelve-month period immediately prior to the Closing, and not merely the Closing Date.
Appears in 1 contract
Sources: Purchase Agreement (Aon PLC)
Purchased Assets. Subject to and upon the terms and conditions set forth hereinof this Agreement, at the Closing (as defined in Section 2.1 hereof), Seller shall agrees upon payment by Buyer to Seller of the Purchase Price in accordance with Section 1.6, to sell, convey, selltransfer, assign, transfer assign and deliver to Purchaser Buyer and Purchaser shall purchaseBuyer agrees to purchase and acquire, acquire Parkside, the Owned Real Property including the Leased Real Property (subject to the Real Property Lessee’s leasehold interest therein), and accept all of Seller’s right, title and interest in and to all of Seller’s the tangible and intangible assets usedowned by Seller included therein, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) ), which purchased and acquired assets shall include, without limitation, the following (referred to hereinafter collectively as the “Seller’s Assets” or “its Purchased Assets”), including without limitation:):
(a) The rights and benefits accruing to the approximately 8.0 acres, more or less, of owned real property of Seller as lessee under any immovable (reallocated in Ellijay, Georgia, the legal description(s) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed is/are attached on Schedule 2.1(a)-11.1(a), together with any leases which may be executed on the immovable Building and all improvements, buildings and fixtures thereon, and all rights, privileges and easements appurtenant thereto (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (collectively, the “Owned Real Property LeaseProperty”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3);
(b) All right, title all the leasehold rights and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable interests of Seller as lessor under the Real Property Lease agreement referenced in Schedule 1.1(b);
(realc) the tangible personal property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business)Parkside, kitchen and other appliancesincluding, without limitation, the equipment, furniture, vehicles, smallwaresfurniture and furnishings, utensils, glassware, table cloths, spare parts, tools, supplies, the current list and general location of which are set forth on Schedule 1.1(c) ;
(d) the rights and interests of Seller in the equipment and other corporeal personal property leased by Seller under the operating leases (tangible), movable (personal“Personal Property Leases”) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d1.1(d) (collectively, the “EquipmentLeased Personal Property”)) provided, however, that any and all equipment and other personal property leased by Seller shall only be included in the Purchased Assets to the extent the underlying lease constitutes an Assumed Contract;
(e) The rights the inventory, including supplies and benefits accruing to spare parts, owned by Seller as lessee under any leases and/or subleases of the Closing Date that are used or held for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used use in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 Parkside (the “Inventory”);
(f) all Medical Records owned by or under the custody or control of Seller, all financial, personnel records of Person’s employed by Seller relating to Parkside or the Owned Real Property, all records in Seller’s possession with respect to equipment owned or leased by Seller at the Owned Real Property, medical administrative libraries, patient billing records, and documents, catalogs, books, records, files used in the operation of Parkside or other operations of Seller at the Owned Real Property (collectively, the “Facility Records”),
(g) the Residency Agreements, if any;
(h) the rights and interests, to (i) Seller’s Business as a going concernMedicare and Medicaid nursing home provider agreements (the “Provider Agreements”) from and to the extent transferrable (ii) Seller’s Payor Agreements from and to the extent transferable, its Franchise Rights, all of and (iii) the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property interests of Seller used in connection with its businessunder contracts, including without limitationcommitments, all trademarksleases and agreements of Seller listed on Schedule 1.1(h) as of the Effective Date (the “Assumed Contracts”);
(i) the licenses, service markspermits, certificates, certificates of need and related rights (the “CON Rights”), accreditations held by Seller relating to computer softwarethe ownership, trade secrets development, and operation of Parkside (including, without limitation, recipes) any pending or approved governmental approvals and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names Medicare provider number and other matters listed on Schedule 2.1(g1.1(j), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “LicensesPermits”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All filesthe name “G▇▇▇▇▇ Nursing Home,” “Parkside Ellijay,” and any other trade names, trademarks and service marks (or variations thereof) of Seller associated with Parkside (other than the Excluded Intellectual Property or any iteration or variation of any thereof), a perpetual assignable non-exclusive royalty free license in all operating manuals manuals, written policies and correspondence pertaining procedures and handbooks owned by Seller or licensed to Seller by SunLink (collectively the “Operating Documents”), the owned Intellectual Property identified in Schedule 3.32, all goodwill associated therewith, and all applications and registrations, if any, associated therewith;
(k) all telephone numbers and telefax numbers used by Parkside to the Equipment; all customer extent transferrable;
(l) the rights and potential customer lists; mailing lists; all files pertaining to current interests of Seller in operating and potential vendors and suppliers; all price lists; all advertising materials; and copies capitalized leases of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating personal property but only to the Business or reasonably related extent such operating and capitalized leases are included within the Assumed Contracts;
(m) custodial rights to trust fund accounts of Patients held by Seller to the Business extent of balances therein as of the Closing and accounts receivable with respect to refundable amounts, if any, prepaid by Patients expressly for periods on or after Closing (“PAC Funds”);
(n) all deposits, if any, but excluding all Utility Deposits (collectively, the “Books and RecordsPurchased Deposits”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2provided, which includes all potential lease rights Seller may havehowever, including but not limited options to lease adjacent property that at no cost or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related expense to Seller, Seller will use commercially reasonable efforts to cause all Utilities to be transferred into Buyer’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);name at Closing; and
(o) Seller’s working cashthe interest of Seller in property of the foregoing types, which shall be $1,000 per restaurant (arising or acquired in the “Working Cash”); and
(p) All tax credits or rights to credits available to ordinary course of the business of Seller in connection with Parkside between the operation of Seller’s Business to Effective Date and the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing DateClosing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sunlink Health Systems Inc)
Purchased Assets. Subject to and upon Upon the terms and subject to the conditions set forth hereinin this Agreement, Seller hereby agrees to sell to Subsidiary and Subsidiary hereby agrees to purchase from Seller, at the Closing Seller shall conveyClosing, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept all of Seller’s 's right, title title, and interest in and to substantially all of Seller’s tangible and intangible the assets used, held for use or in any way relating to its Business other than associated with the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”)Business, including without limitation:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) following (collectively, the “Leasehold ImprovementsPurchased Assets”) and all architectural plans and mechanical drawings related to ): The assets being acquired include the Leasehold Improvements;
(c) All rightrights, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, suppliestitle, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used interest in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, substantially all of the rights assets associated with the Business, including:
a) All wireless and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its businessdial-up network infrastructure equipment, including without limitationsubscriber units, all trademarksaccess nodes, service marksbackhaul links, rights to computer radios, antennas, switches, routers and servers with related software, trade secrets (including, without limitation, recipes;
b) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a 96 foot Trylon tower located at ▇▇▇▇ ▇’▇▇▇ ▇▇▇▇▇ Steak House restaurant)▇▇▇▇▇▇▇, including without limitation ▇▇▇▇▇, ▇▇▇▇▇;
c) all inventory, equipment, goods, documents pertaining to the trade names listed on Schedule 2.1(g)operations and instruments of the Business;
d) all rights to equipment, goodwill tower and other intangible assets facilities space leases for the Business (collectively, “Intellectual PropertyAssumed Leases”);
(he) All claims assignment of Seller’s 3.65 WiMAX license rights on the main tower located at Hwy 51 South at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇.
f) all transferable customer and contractual rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its held by the Business, including without limitation those listed on Schedule 2.1(hall ISP Subscriber Agreements, all Design Agreements, Equipment Purchase Agreements, Internet Access and Monitoring and Maintenance Agreements with customers with fixed wireless broadband;
g) all general intangibles (each an “Assigned Contract” including trademarks, trade names and collectively the “Assigned Contracts”symbols) used in connection with ▇▇▇▇▇▇.▇▇▇;
h) all work in progress, and all accrued or prepaid advertising rightsother contracts and agreements relating to the Business;
i) all transferable equipment and software related to the Business, (except as specifically agreed and set forth otherwise as “excluded equipment” in the Definitive Agreement;
j) all legally assignable government permits, licenses and certifications for the Business ("Governmental Permits"); and
k) all documents, files and records containing technical support, all additions, accessions and substitutions thereto and other information pertaining to the Business in Seller’s possession or control.
l) Seller will be permitted to retain title to certain equipment set forth on the Asset Listing.pdf document that is specifically designated as “Retained by ▇▇▇▇▇▇”. Notwithstanding, Buyer shall be permitted to retain and have unfettered use this equipment for a minimum of 90 days until appropriate transition of customers can be accomplished and will be allowed a one-time 30 extension to accomplish this transition. Specifically, this designation will only apply to the following equipment:
i. Compaq Server - Modus Mail Server
ii. Compaq Drive - Array Drive chassis and drives
iii. Modus Mail - Modus Mail Server License - Unlimited Users
iv. Compaq Server - Emerald Server
v. Compaq Drive - Array Drive chassis and drives
vi. Emerald ISP Customer System - Emerald License for 3000 MBRs Seller will provide to Buyer copies of the following books, records, manuals and other materials in any tangible form to the extent such books, records, manuals and other materials relate to the Business and/or the Purchased Assets: (i) All licensesrecords relating to customers that are parties to any contracts, permits(ii) records relating to vendors, consentsand (iii) all other books, use agreementsrecords, approvalsfiles, authorizations correspondence, documents and certificates of any Governmental Authority information owned by Seller relating to the extent they relate to Business that are currently in the possession of the Seller’s Business , however maintained or stored (collectively, the “LicensesRecords”), in each case it being understood that the Seller may delete confidential information that does not relate to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation or the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing DateBusiness.
Appears in 1 contract
Purchased Assets. Subject to and upon the terms and conditions set forth of this Agreement and in reliance upon the representations, warranties, covenants and agreements of Seller contained herein, at the Closing Closing, Seller shall sell, convey, selltransfer, assign, transfer assign and deliver to Purchaser Purchaser, and Purchaser shall purchasepurchase and acquire from Seller, acquire free and accept clear of all Liens other than the Permitted Encumbrances, all of Seller’s 's right, title and interest in and to all of Seller’s tangible the assets, properties and intangible assets used, held for use or in any way rights of Seller relating to its the Business other than and located at either the Processing Plant, the Feed Mill/Hatchery or the Leased Garage of every type and description, real, personal and mixed, known or unknown, whether or not reflected on the books and records of Seller, except for the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including including, without limitation:
, the following (collectively, the "Purchased Assets"): (a) The rights the parcel of real property and benefits accruing the buildings, ▇▇▇▇▇ and other improvements located thereon, and all fixtures and other appurtenances thereto related to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date Feed Mill/Hatchery, comprising approximately 20.84 acres in Monroe County in the State of this Agreement through Georgia; the Closing Date, each legal description of which is listed set forth on Schedule 2.1(a)-12.1(a) attached hereto (collectively, the "Real Property"); (b) all of the machinery, equipment, tools, furniture, fixtures and equipment, computer hardware, leasehold improvements, automobiles, cargo trucks and other rolling stock, computing and telecommunications equipment and other items of tangible personal property, of every kind owned by Seller located at, used in the operation of or otherwise related to, the Processing Plant, the Feed Mill/Hatchery, the Wastewater Facility and the Leased Garage (excluding the Perry Leased Equipment and the Wastewater Facility Leased Assets), together with any leases which may be executed on express or implied warranty by the immovable (real) property listed on Schedule 2.1(a)-2 manufacturers or sellers or lessors of any opportunities item or component part thereof, to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any extent such warranty is transferable, and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts maintenance records and other immovable (real) property owned by Seller documents relating thereto, including, without limitation, the equipment and located on the Leased Premises, including without limitation those other items listed set forth on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
"Tangible Personal Property"); (c) All rightall of Seller's currently usable (i) spare parts, title and interest, if any, to easements, servitudes, privileges, rights-of-way supplies and other real rights of Seller pertaining to similar materials and (ii) hatching eggs, feed, grain and other feed ingredient inventories, held for use in the Business that are not damaged, impaired or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) obsolete (collectively, the “Easements”"Inventory");
. Inventory shall be determined in accordance with the procedures set forth in Section 2.5(e) herein below and shall be comprised only of such Inventory located at the Processing Plant, the Feed Mill/Hatchery or the Leased Garage; provided, however, that (i) without limiting the generality of the foregoing, Inventory shall in any event include motors and tires that are not, on the Closing Date, located at either the Processing Plant, the Feed Mill/Hatchery or the Leased Garage because they are being repaired or recapped, respectively, at the Leased Garage and (ii) for purposes of this Agreement, "usable" shall be those items of Inventory on hand and listed as inventory by Seller in the ordinary course of the Business and according to GAAP; (d) All machinery that certain Lease Agreement (including without limitation all computer hardware used Real Property) between Development Authority of Houston County ("DAHC") and Seller dated September 1, 1999 (the "Perry Real Property Lease") pursuant to which Seller leases the parcel of real property and the buildings related to the Processing Plant, comprising of approximately 611.43 acres in connection with Houston County in the operation and maintenance State of Seller’s Business)Georgia, kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described as set forth on Schedule 2.1(d) (collectively, the “Equipment”"Perry Leased Real Property");
; (e) The rights that certain Lease Agreement (Equipment) between DAHC and benefits accruing Seller dated September 1, 1999 (the "Perry Equipment Lease") pursuant to which Seller as lessee under any leases and/or subleases for equipment, certain machinery, appliances or equipment and other corporeal (tangible)tangible personal property, movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipesthe items set forth on Schedule 2.1(e) (the "Perry Leased Equipment"); (f) that certain Lease Agreement between Seller and the City of Perry, Georgia dated December 29, 1999 (the "Wastewater Facility Lease") pursuant to which Seller leases that certain parcel of real property, comprising of approximately 85.603 acres in Houston County in the State of Georgia, the "Wastewater Facility Leased Real Property"), the buildings related to the wastewater treatment facility located thereon (the "Wastewater Facility") and trade names the equipment, machinery and other tangible personal property (whether acquired from Purchasercollectively, an Affiliated franchisor or otherwisethe "Wastewater Facility Leased Assets"), including, without limitation, the real property and personal property set forth on Schedule 2.1(f); (including without limitation g) all of Seller's interest in the Seller’s right to do or develop business as a $40,000,000 outstanding principal amount of the Development Authority of Houston County, Taxable Revenue Bonds (▇▇▇▇’▇'▇ ▇▇▇▇▇ Steak House restaurantInc. Project), including without limitation Series 1999 (the trade names listed on Schedule 2.1(g"Bonds"), goodwill and other intangible assets (collectively, “Intellectual Property”);
; (h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed the Contracts set forth on Schedule 2.1(h3.9 that are specifically designated with an asterisk (*) for assignment to and assumption by Purchaser (to the extent set forth on Schedule 3.9(a)) (each an “Assigned Contract” and collectively the “"Assigned Contracts”) and all accrued or prepaid advertising rights;
"); (i) All all licenses, permits, consents, use agreements, permits approvals, qualifications and orders of governmental authorities and other public or private authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, Purchased Assets and/or the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbersBusiness, to the extent assignable;
transferable; (mj) All domain names, websites and other intellectual property of any kind the payments (or nature used by Seller in its Business except for those items identified on Schedule 2.1(mpro rata portion thereof), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c)if any, all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to of the Purchased Assets (including without limitation or the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cashBusiness, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller constitute prepaid expenses in connection accordance with the operation of Seller’s Business GAAP but only to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Date.listed on Schedule 2.1
Appears in 1 contract
Purchased Assets. Subject Pursuant to and upon the terms and subject to the conditions set forth hereinin this Agreement, at on the Closing Date herein below provided for but effective as of the Effective Date, Seller shall hereby agrees to sell, grant, transfer, convey, sell, assign, transfer assign and deliver to Purchaser Buyer, and Purchaser shall purchaseBuyer agrees to purchase and acquire from Seller, acquire and accept all of Seller’s rightthe properties, title assets and interest in and to all of Seller’s tangible and intangible assets rights owned, used, held acquired for use use, or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” arising or “its Assets”), including without limitation:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation Business, whether tangible or intangible, and maintenance of whether or not recorded on Seller’s Businessbooks and records, except for and excluding the Retained Assets provided for in Section 1.2 below (all the foregoing being collectively referred to as the “Purchased Assets”). The Purchased Assets shall include, kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectivelybut not be limited to, the “Equipment”);following:
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(fA) All rights of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 Seller under its occupancy leases (the “InventoryFacilities Leases”);
) covering (gy) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a facilities at ▇▇ ▇▇▇▇’▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (the “Perimeter Center Lease”), and (z) the facilities at Newmarket Center, ▇▇▇▇ ▇▇▇▇▇ Steak House restaurant▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (the “Newmarket Center Lease” and, together with the Perimeter Center Lease, the “Leased Premises”), a true and complete copy of the Facilities Leases being included at Schedule 1.1(A) attached hereto;
(B) All of Seller’s (x) vehicles used in connection with the conduct of the Business (“Vehicles”), (y) furniture, furnishings, fixtures, equipment, machinery, trade fixtures, leasehold improvements, computers, computer discs, telephone systems and security systems (“Equipment”), and (z) supplies, training and course materials, computer training kits and manuals, catalogs, advertising copy and other properties of a similar type used or held for use in the conduct of the Business (“Inventory” and, together with the Vehicles and Equipment, whether owned or leased, the “Tangible Personal Property”), a listing of all of which is included at Schedule 1.1(B) attached hereto (which Schedule indicates whether the Vehicles and Equipment are owned or leased and, if leased, includes a full and complete copy of the lease or other agreement(s) governing the same);
(C) All of Seller’s (u) telephone and facsimile numbers, (v) permits and other governmental authorizations pertaining to the Business, to the extent such authorizations may legally be assigned (“Governmental Permits”), (w) goodwill with customers, vendors or prospective customers, and all customer lists, relating to the conduct of the Business (“Goodwill”), (x) security or similar deposits relating to the Business including, but not limited to, the security deposits made under the Newmarket Center Lease, but (i) such shall exclude security deposits under the Cisco Equipment Lease as defined in Section 1.2(E) or under any lease or agreement not comprising a part of the Assigned Contracts, and (ii) Buyer shall repay to Seller the security deposits released and paid to Buyer, as same occurs, under the Perimeter Center Lease (“Deposits”), (y) prepaid advertising (inclusive of yellow page advertising), prepaid expenses and other prepayments relating to the conduct of the Business (“Prepayments”), and (z) all other intangible assets relating to the Business or any of the Purchased Assets (the foregoing being collectively called the “Intangible Personal Property”), a listing of all of which is included at Schedule 1.1(C) attached hereto;
(D) All of Seller’s software (including rights under Seller’s software licenses), including SAGE accounting software, and other software used in the conduct of the Business (“Software”), but excluding the CMS software otherwise provided for in the Franchise Agreement (as defined in Section 3.5(B)), a listing of the Software being included at Schedule 1.1(D) attached hereto (and, as to each, identifying whether such is owned by Seller or licensed for use by Seller and, if licensed, the name of the licensor and material terms governing Seller’s right to use same in connection with the Business);
(E) All of Seller’s accounts and notes receivable, and other rights to receive payment, from customers, employees or others arising from the conduct of the Business (“Receivables”), a listing of all of which (showing, as to each, the name of the account debtor, the amount owed and an aging schedule thereof) is included at Schedule 1.1(E) attached hereto;
(F) Except as provided in Section 1.2(E), all rights of Seller under any agreements or contracts (“Assigned Contracts”) which relate to or arise from the operation of the Business and are accepted by the Buyer, including any thereof with customers or prospective customers which benefit the Business from and after the Effective Date, including, but not limited to, computer training center agreements and, further, including all rights to receive payment from customers for services to be performed and invoiced after the Effective Date (“Customer Contracts”), including without limitation the trade names listed on Schedule 2.1(g)right to payment with regard to coupon sales and redemptions, goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materialsPC Club sales, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Businesstechnical club sales or applications, and any correspondence relating to the Business or reasonably related to the Business (collectivelyfuture training classes, the “Books and Records”);
(ka listing of all of which Assigned Contracts is included at Schedule 1.1(F) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”)attached hereto; and
(pG) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business book and records, books of account, files, invoices, accounting records, and correspondence relating to any of the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Dateforegoing (“Records”).
Appears in 1 contract
Sources: Asset Purchase Agreement (New Horizons Worldwide Inc)
Purchased Assets. Subject to and upon Upon the terms and subject to the conditions set forth in this Agreement, Seller hereby sells, conveys, assigns, transfers and delivers to Buyer (and with respect to the Real Property (defined herein), at to Real Property Buyer), and Buyer (and with respect to the Closing Seller shall conveyReal Property, sellReal Property Buyer) hereby purchases and accepts from Seller, assignfree and clear of all Liens, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept all of Seller’s right, title and interest in and to all of Seller’s property, assets and rights, including all such assets that are used in or are useful to Seller’s business of developing, designing, manufacturing, selling and distributing performance coatings and ceramics (the “Business”), tangible and intangible assets usedintangible, held for use or in any way relating to its Business other than of every kind and description, wherever located, but excluding the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as the “Seller’s Assets” or “its Purchased Assets”). The Purchased Assets include the assets described below and in the bill of sale and assignment of rights delivered by Seller in connection with this Agreement (the “Bill of Sale”) but exclude the assets described in Section 2.2. The purchase and acceptance of the Purchased Assets does not include the assumption of any Liability of Seller unless expressly assumed by ▇▇▇▇▇ (or, including without limitationwith respect to the Real Property, by Real Property Buyer) pursuant to Section 2.3. Without limiting the foregoing, the Purchased Assets shall include the following:
(a) The all accounts receivable and all notes and other evidences of indebtedness in favor of Seller and rights to receive payments arising out of products sold and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date services rendered (the “Real Property LeaseAccounts Receivable”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3);
(b) All right, title any and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premisesall inventory, including without limitation those items listed on Schedule 2.1(b) (collectivelyraw materials, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All rightsamples, title and interestwork-in-progress inventory, if anyprepaid inventory, to easementsaccessories, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table clothssupplies, spare parts, toolsfinished goods and bill of material expense items (including shipping containers, supplies, labels and other corporeal (tangiblepackaging materials), movable (personal) property located on whether in the Leased Premises possession of Seller or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing in transit to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(gc) Seller’s Business as a going concern, its Franchise Rights, all Intellectual Property Rights owned by Seller and used or held for use by Seller in the operation of the rights and benefits Business (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual PropertyProperty Assets”);
(hd) All claims all sales and rights purchase orders and ongoing customer Contracts set forth on Schedule 2.1(d) (collectively the “Assumed Contracts”);
(e) (i) to the extent transferrable, all licenses, permits, registrations, certificates of occupancy, Consents and certificates from any Governmental Authority (collectively, “Permits”) issued, directly or indirectly, to Seller, and (ii) all certificates, registrations, accreditations, qualifications and approvals of any independent or accreditation body (collectively, “Certifications”) issued, directly or indirectly, to Seller;
(f) all machinery, equipment, furniture, furnishings, molds, fixtures, tools, dies, vessels, vehicles, computers and other tangible personal property used in or useful to Seller’s conduct of the Business;
(g) all of the books and records of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from related to the Purchased Assets or relating to its the Business, including without limitation those listed on Schedule 2.1(hbusiness records, files, research material, tangible data, documents, payroll and personnel records with respect to the Seller’s employees (to the extent permitted by ▇▇▇), invoices, customer lists, vendor lists and service provider lists, whether in written or electronic form;
(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) any and all accrued or prepaid advertising rightsgoodwill of Seller;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business Real Property (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”defined herein); and
(pj) All tax credits all other assets of Seller used in or rights useful to credits available to Seller in connection with the its operation of Seller’s the Business (unless included in the Excluded Assets). For avoidance of doubt, and notwithstanding anything herein to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Date.contrary,
Appears in 1 contract
Purchased Assets. Subject to and upon The Purchased Assets are the terms and conditions set forth herein, at the Closing Seller shall convey, sell, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept all following assets of Seller’s right, title and interest in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation:
(a) The rights All of the billboard displays and benefits accruing to Seller as lessee under any immovable (realother out-of-home advertising structures located in the State of Nevada, including, but not limited to, those set forth and described in Schedule 2.2(a)(1) property lease and/or sublease relating to Seller’s Business existing on attached hereto, and the date of this Agreement through the Closing Datetwo in Los Angeles, each of which is listed on California, set forth and described in Schedule 2.1(a)-12.2(a)(2) attached hereto, together with all components, fixtures, parts, appurtenances, 9 and equipment attached to or made a part thereof that are existing, under construction or for which Seller has any leases which may be executed on rights (collectively, the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3"Structures");
(b) All rightleases, title licenses, easements, other rights of ingress or egress, and interestall other grants of the right to place, if anyconstruct, to leasehold improvementsown, fixturesoperate or maintain the Structures on land, constructions, component parts buildings and other immovable (real) real property owned by Seller third parties, and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) all rights therein (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements"Site Leases"), including those Site Leases listed on Schedule 2.2(b);
(c) All rightrights under existing and pending sales and advertising contracts associated with the Structures, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real all rights of Seller pertaining to or accruing to the benefit advertising copy displayed on the Structures as of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) Closing Date (collectively, the “Easements”"Advertising Contracts"), including those Advertising Contracts listed on Schedule 2.2(c) attached hereto;
(d) All machinery (including without limitation state and local licenses or permits/tags which Seller has with respect to the Structures and, to the extent assignable, all computer hardware used in connection with other Governmental Authorizations that are required for the operation and maintenance of Seller’s Business)the Structures, kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”"Permits"), including those Permits listed on Schedule 2.2(d);
(e) The rights and benefits accruing All prepaid expenses relating to Seller the Purchased Assets in existence as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in of the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e)Closing;
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed pertinent Books and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”)Records;
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its businessAll tangible personal property, including without limitationfurniture, all trademarksvehicles, service marksequipment, rights to computer hardware and software, trade secrets (including, without limitation, recipes) owned by Seller relating to the Purchased Assets and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on in Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”2.2(g);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively Intangible Property used in connection with the “Assigned Contracts”) and all accrued or prepaid advertising rights;Purchased Assets; and
(i) All licensesoptions, permitsrights of first refusal and other rights to purchase or acquire outdoor advertising assets, consentsincluding new builds, use agreements, approvals, authorizations site leases and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”)outdoor advertising structures, in each case to the extent transferable by the SellerState of Nevada, including without limitation those listed on Schedule 2.1(i)Seller's right of first refusal under that certain Seil▇▇ ▇▇▇eement;
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records rights (which financial records shall be certified by Queyrouzeincluding any benefits arising therefrom), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights claims and demands of recovery, warranties and guarantees with respect to Purchased Assets whatever nature (including without limitation the Inventory), rights of set off, and rights of recoupment whether or not liquidated) of Seller (including any such item relating to the payment of taxes other than income taxes) Purchased Assets, including, without limitation, condemnation rights and proceeds, and all federalrights against suppliers under warranties covering any of the Purchased Assets. Notwithstanding the foregoing, state and local franchise and property tax credits the Purchased Assets shall not include the assets listed on Schedule 2.2(x) (“Claims”collectively, "Excluded Assets");
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to Seller in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing Date.
Appears in 1 contract
Purchased Assets. Subject to and upon On the terms and subject to the conditions set forth in this Agreement, and based upon the representations, warranties, covenants and agreements of the Seller contained herein, at the Closing Closing, the Seller shall convey, sell, assign, transfer and deliver to Purchaser the Buyer, free and Purchaser clear of all liens, hypothecations, mortgages, charges, restrictions, options, assessments, security interests, pledges and other encumbrances and claims of any nature (collectively, “Liens”), and the Buyer shall purchasepurchase and acquire from the Seller, acquire and accept all of the Seller’s right, title and interest in and to all of Seller’s tangible and intangible the assets used, held for use or in any way relating to its Business of the Seller (other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Assets), wherever located and whether or not all or any of such assets appear on or are reflected upon the Seller’s Assets” books, records or financial statements (the “its Purchased Assets”), including without limitationthe following:
(ai) The All equipment and machinery, furniture, computer hardware and embedded firmware, printers, office furniture, vehicles (whether or not registered under motor vehicle registration laws) and equipment and other personal property, fixtures and physical property of the Seller (the “Tangible Assets”), including, but not limited to, the assets listed on Schedule 1.1(a)(i).
(ii) All rights and benefits accruing to that the Seller as lessee may have under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is Contracts listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real1.1(a)(ii) property and all other non-material Contracts not listed on Schedule 2.1(a)-2 1.1(a)(ii) entered into in the ordinary course of business consistent with past practice (the “Assigned Contracts”), including the Seller’s rights under customer purchase orders.
(iii) All work-in-process, raw materials, supplies, samples and processed and finished goods of the Seller and all other goods held for sale by the Seller (collectively, “Inventory”).
(iv) All Proprietary Rights owned by the Seller or any opportunities developed, used, distributed, sold, resold and/or incorporated into other materials by or on behalf of the Seller (the “Assumed Proprietary Rights”).
(v) The real property leased by the Seller and the buildings, structures, fixtures and other improvements located thereon (the “Leased Real Property”) and each Contract relating to the lease that may arise from or sublease of the date of this Agreement through the Closing Date Leased Real Property (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(b) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(c) (collectively, the “Easements”);
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described on Schedule 2.1(d) (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);.
(fvi) All of Seller’s inventory in connection with Seller’s Businessfiles and invoices, which as of the day before the Closing Date are those items listed Inventory records, sales and described on Schedule 2.1(f)-1sales promotional data, which shall be not less than the minimum inventory levels as listed advertising materials, customer lists, cost and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concernpricing information, its Franchise Rightssupplier lists, all of the rights broker lists, technical data, specifications, work standards and benefits (but not its obligations or liabilities) under its Franchise Agreementsmanufacturing, all intellectual property of Seller used in connection with its businessassembling and process information, including without limitationinnovation plans, all trademarksoperating manuals, service marksoperating data and plans, rights to computer softwareengineering drawings, trade secrets (includingworking drawings, without limitation, recipes) schematics and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all blueprints and any other books and records of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”);
(h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(lvii) All rights of the Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;, in and to the Seller Governmental Authorizations, issued or granted to, or otherwise held by, the Seller.
(mviii) All domain namescauses of actions, websites claims, warranties, guarantees, refunds, covenants and other intellectual property indemnities, all rights of any recovery and set-off of every kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to and character of the Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;.
(nix) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, All prepaid expenses, credits, deposits and advance payments of the Seller and all rights of the Seller to receive discounts, refunds, causes reimbursements, rebates, awards and the like.
(x) All accounts, notes or other rights to payment for services rendered, including all accounts receivable of actionthe Seller (the “Accounts Receivable”).
(xi) All benefits, choses in action, rights of recovery, warranties proceeds and guarantees premium prepayments or refunds payable or paid thereunder or with respect to Purchased Assets (including without limitation Insurance Policies maintained by the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating prior to the payment Effective Time.
(xii) All of taxes other than income taxes) the Seller’s rights under warranties, indemnities and all federal, state and local franchise and property tax credits (“Claims”);similar rights against third parties to the extent related to any of the Purchased Assets.
(oxiii) Seller’s working cashThe Business as a going concern and all goodwill associated with, which shall be $1,000 per restaurant (the “Working Cash”); andBusiness and the Purchased Assets.
(pxiv) All tax credits other properties and assets owned or rights to credits available to held by the Seller and used or useful in connection with with, or necessary for, the operation of Seller’s the Business to as presently conducted, whether or not of a type falling within any of the extent transferable to Purchaser but excluding any tip credits categories of assets or income tax credits usable by Seller up to properties described above, unless specifically forming part of the Closing DateExcluded Assets.
Appears in 1 contract
Sources: Asset Purchase Agreement (Power Solutions International, Inc.)
Purchased Assets. Subject to and upon Upon the terms of this Agreement, and conditions on the basis of the representations and warranties hereinafter set forth hereinforth, at the Closing Seller shall conveyClosing, sellSellers are selling, assigntransferring, transfer conveying, assigning, and deliver delivering to Purchaser Buyers, and Purchaser shall purchaseBuyers are acquiring and purchasing from Sellers, acquire and accept all of Seller’s Sellers’ right, title and interest in and to all the assets of Seller’s tangible and intangible assets used, held for use or Sellers described in any way relating to its Business other than the Excluded Assets (as hereinafter definedSection 2.01(a)(i) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation:
(a) The rights and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(bSection 2.01(a)(viii) (collectively, the “Leasehold ImprovementsPurchased Assets”) ), free and clear of all Encumbrances, with all of Teledrift and Turbeco’s Purchased Assets being transferred, conveyed, assigned and delivered to NOV US, all of Flotek ULC’s Purchased Assets being transferred, conveyed, assigned and delivered to NOV Canada, and all architectural plans of Flotek FZE’s Purchased Assets being transferred, conveyed, assigned and mechanical drawings related delivered to NOV FZE:
(i) the machinery, equipment, trade fixtures, tools, furniture, computers, appliances, implements, leasehold improvements, supplies, inventory (including inventory of raw materials, construction or work in process, finished products and goods), spare parts and all other tangible personal property owned by Sellers and which relates to the Leasehold ImprovementsBusiness listed on Section 2.01(a)(i) of the Disclosure Schedules;
(cii) All the motor vehicles and rolling stock listed on Section 2.01(a)(ii) of the Disclosure Schedules;
(iii) all right, title and interest, if anyinterest in, to easementsand under only those Contracts which are described on Section 2.01(a)(iii) of the Disclosure Schedules (collectively, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing the “Assigned Contracts”);
(iv) to the benefit of extent transferable, all right, title and interest in all Permits relating to the Leased PremisesPurchased Assets, including without limitation those items listed on Schedule 2.1(cSection 2.01(a)(iv) of the Disclosure Schedules (collectively, the “EasementsAssigned Permits”);
(dv) All machinery (including without limitation Sellers’ Owned Real Property described on Section 2.01(a)(v) of the Disclosure Schedules and all computer hardware used in connection with the operation fixtures, buildings and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property improvements located on or under such real property interests and all related security deposits and prepaid rents;
(vi) all of the Leased Premises or otherwise relating to Seller’s BusinessIntellectual Property listed on Section 2.01(a)(vi) of the Disclosure Schedules, including without limitation those items listed run and described on Schedule 2.1(d) operating history, product drawings, customer lists and product manuals (collectively, the “Equipment”);
(e) The rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as of the day before the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 (the “Inventory”);
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Sellers’ Intellectual Property”);
(hvii) All claims and all rights of Seller under all agreementsexpress or implied warranties from the suppliers with respect to the Purchased Assets, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent are transferable by the Seller, including without limitation those listed on Schedule 2.1(i)or assignable;
(jviii) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s Sellers’ right, title and interest in in, to, and any right under all rights, privileges, Claims, and options relating or pertaining to lease the property identified in Schedule 2.1(a)-2Purchased Assets, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, only to the extent assignable;
(m) All domain namessuch rights, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m)privileges, which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties action and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating options are not related to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”)Excluded Liabilities; and
(pix) All tax credits or rights subject to credits available to Seller the exclusions set forth in connection with the operation of Seller’s Business Section 2.01(b), and to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up assignable, all other or additional privileges, rights, interests, assets of every kind and description of Sellers, whether tangible or intangible, wherever located, that are used or intended for use in connection with, or that are necessary to the Closing Datecontinued conduct of, the Business as presently conducted.
Appears in 1 contract
Sources: Asset Purchase Agreement (Flotek Industries Inc/Cn/)
Purchased Assets. Subject Seller hereby agrees to and upon the terms and conditions set forth herein, at the Closing Seller shall convey, sell, assigncontribute, convey, transfer and deliver assign to Purchaser Purchaser, free and clear of all Liens except Permitted Liens, and Purchaser shall purchase, acquire hereby agrees to purchase and accept from Seller, effective as of the Effective Time, all of Seller’s right, title and interest in and to all the assets of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business Seller other than the Excluded Assets (as hereinafter defined) (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitation:the following assets, properties and rights (collectively, the "Purchased Assets"):
(a) The rights all fixed assets, including furniture, furnishings, fixtures, leasehold improvements, office equipment, telecommunications equipment, computer systems, mobile equipment and benefits accruing to other tangible personal property owned by Seller as lessee under any immovable or used or held for use in connection with the conduct of the Business, including the items listed or described in Schedule 1.1(a) of Seller's Disclosure Letter (real) property lease and/or sublease relating to Seller’s Business existing on collectively, the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3"Owned Personal Property");
(b) All rightall interests of Seller under any office lease ("Office Leases") that Purchaser shall designate in a written notice to Seller delivered prior to the expiration of the Inspection Period (as defined in the Other Purchase Agreements), title that Purchaser is electing to assume (which leases shall be assigned to Purchaser at no cost or expense, and interestfor any Office Leases Purchaser does not elect to assume, if anySeller shall terminate such Office Leases on or before Closing at Seller's sole cost and expense), and (ii) the Management Agreements that Purchaser designates in a written notice to leasehold improvementsSeller delivered prior to the expiration of the Inspection Period (as defined in the Other Purchase Agreements), fixturesthat Purchaser is electing to assume (which Management Agreements shall be assigned to Purchaser at no cost or expense), constructionsand (iii) the Contracts that Purchaser designates in a written notice to Seller delivered prior to the expiration of Inspection Period (as defined in the Other Purchase Agreements), component parts and other immovable that Purchaser is electing to assume (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(bwhich Contracts shall be assigned to Purchaser at no cost or expense) (collectively, the “Leasehold Improvements”) and all architectural plans and mechanical drawings related to the Leasehold Improvements"Assumed Contracts");
(c) All rightall files and records (other than Excluded Records), title including but not limited to files and interestrecords relating to (i) the operations of the Business; (ii) the Purchased Assets; (iii) liabilities assumed by Purchaser pursuant to this Agreement; (iv) all supplier files, if any, to easements, servitudes, privileges, rights-of-way asset ledgers and other real rights financial records; (v) all relationships with customers of Seller pertaining to or accruing the Business; and (vi) to the benefit of the Leased Premisesextent permitted by Applicable Law, Continuing Employees, including without limitation those items listed on Schedule 2.1(c) copies of all personnel files of Continuing Employees, in each case, with respect to the Business (collectively, the “Easements”"Files and Records");
(d) All machinery (including without limitation to the extent transferable or assignable by their terms and pursuant to Applicable Law, all computer hardware used in connection with licenses, permits, approvals, authorizations, registrations, certificates, variances or similar rights issued by any Governmental Authority for the operation and maintenance of Seller’s Business), kitchen and other appliances, equipment, furniture, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, and other corporeal (tangible), movable (personal) property located on the Leased Premises or otherwise relating to Seller’s Business, including without limitation those items listed and described set forth on Schedule 2.1(d1.1(d) of Seller's Disclosure Letter (collectively, the “Equipment”"Assigned Permits");
(e) The rights and benefits accruing all accounts receivable of the Business outstanding as of the Effective Time, including, to Seller the extent not paid as lessee under any leases and/or subleases for equipmentof the Effective Time, machinery, appliances or other corporeal (tangible), movable (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed those set forth on Schedule 2.1(e1.1(e) of Seller's Disclosure Letter (the "Accounts Receivable");
(f) All of Seller’s inventory in connection all prepayments, prepaid expenses and deposits paid by Seller with Seller’s respect to the Business, which as of the day before the Closing Date are those items listed including lease, security and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed utility deposits and described on Schedule 2.1(f)-2 (the “Inventory”)prepayments under any Assumed Contract;
(g) Seller’s Business as a going concern, its Franchise Rights, all of the rights and benefits (but not its obligations or liabilities) under its Franchise Agreements, all intellectual property of Seller used in connection under non-disclosure or confidentiality, non-compete, or non-solicitation agreements with its business, including without limitation, all trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaser, an Affiliated franchisor Employees or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets (collectively, “Intellectual Property”)with third parties;
(h) All claims all Seller Insurance Policies and insurance benefits, including rights of Seller under and proceeds, arising therefrom, and all agreementsother insurance benefits, contracts, software license agreements, purchase including rights and sale orders and other executory contracts and commitments of Seller proceeds arising from or relating to its the Business, including without limitation those listed on Schedule 2.1(h) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued Purchased Assets or prepaid advertising rightsthe Assumed Liabilities;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates all claims of any Governmental Authority Seller against third parties arising from or relating to the extent they relate to Seller’s Business (collectivelyBusiness, the “Licenses”), in each case to Purchased Assets or the extent transferable by the Seller, Assumed Liabilities (including without limitation those listed on Schedule 2.1(irights and proceeds arising therefrom);
(j) All filesall Intellectual Property owned, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze)licensed, business books, records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”); and
(p) All tax credits or rights to credits available to held for use by Seller in connection with the operation of the Business, including the software, websites, domain names, forms and tradenames set forth on Schedule 3.13(a) of Seller’s Business 's Disclosure Letter, and including all rights to the extent transferable name “Prager Property Management” and all rights to Purchaser but excluding any tip credits or income tax credits usable by ownership and control of the domain “▇▇▇▇▇▇▇▇.▇▇▇” (collectively, the "Seller up Intellectual Property");
(k) all goodwill relating to the Business;
(l) all other assets or interests (other than Excluded Assets) to which Seller or any of its Affiliates has any right by ownership, use or otherwise, or in which Seller has a conveyable or assignable interest on the Closing DateDate and which relate to the Business.
Appears in 1 contract
Sources: Asset Purchase Agreement (Vinebrook Homes Trust, Inc.)
Purchased Assets. Subject Except for the Excluded Assets and subject to and upon the provisions of Section 6.3, at the Closing, on the terms and subject to the conditions set forth hereincontained in this Agreement, at the Closing Seller Triton Entities shall conveysell to Purchaser, sellfree and clear of all Liens other than Permitted Liens, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept all of Seller’s rightthe assets of the Business (collectively, title and interest in and to all of Seller’s tangible and intangible assets used, held for use or in any way relating to its Business other than the Excluded Assets (as hereinafter defined"Purchased Assets") (referred to hereinafter collectively as “Seller’s Assets” or “its Assets”), including without limitationincluding:
(a) The rights all Licenses (including all Licenses issued by the FCC ("FCC Licenses")); (b)all accounts receivable (including subscriber and benefits accruing to Seller as lessee under any immovable (real) property lease and/or sublease relating to Seller’s Business existing on the date of this Agreement through the Closing Date, each of which is listed on Schedule 2.1(a)-1, together with any leases which may be executed on the immovable (real) property listed on Schedule 2.1(a)-2 or any opportunities to lease that may arise from the date of this Agreement through the Closing Date (the “Real Property Lease”) and any and all Franchise Rights and Franchise Agreements listed on Schedule 2.1(a)-3;
(b) All right, title and interest, if any, to leasehold improvements, fixtures, constructions, component parts and other immovable (real) property owned by Seller and located on the Leased Premises, including without limitation those items listed on Schedule 2.1(broaming accounts receivable) (collectively, the “Leasehold Improvements”) "Accounts Receivable"); (c)all inventory (including cellular mobile telephones and all architectural plans and mechanical drawings related to the Leasehold Improvements;
(c) All right, title and interest, if any, to easements, servitudes, privileges, rights-of-way and other real rights of Seller pertaining to or accruing to the benefit of the Leased Premises, including without limitation those items listed on Schedule 2.1(caccessories) (collectively, the “Easements”"Inventory");
(d) All machinery (including without limitation all computer hardware used in connection with the operation and maintenance of Seller’s Business)furniture, kitchen fixtures, cellular systems and other appliancesequipment and machinery, cellular switches, cell site equipment, furnitureelectrical power units, antennas, transmission lines, microwave equipment, tools, vehicles, smallwares, utensils, glassware, table cloths, spare parts, tools, supplies, computer hardware and other corporeal software (tangiblecollectively, "Equipment"); (e)all contracts, movable leases and agreements (personal) property located on including, subject to the Leased Premises or otherwise relating provisions of the last sentence of Section 12.3, any rights of the Triton Entities under any of the Acquisition Agreements, but only to Seller’s Business, including without limitation those items listed the extent such rights arise after the Closing Date and described on Schedule 2.1(dsuch Acquisition Agreements are assigned to Purchaser in accordance with their terms) (collectively, "Contracts"), including those of the “Equipment”following types: real property ("Real Property Leases");
, personal property (e) The "Personal Property Leases"), switch-sharing, interconnection, agency and distribution, cell site maintenance, network services, intercarrier roaming, roaming clearinghouse and equipment purchase; (f)all lots and pieces of ground together with all easements, rights and benefits accruing to Seller as lessee under any leases and/or subleases for equipment, machinery, appliances or other corporeal privileges appurtenant thereto (tangible"Owned Real Property"), movable ; (personal) property used in the operation of its Business (each an “Equipment Lease” and collectively the “Equipment Leases”), each of which is listed on Schedule 2.1(e);
(f) All of Seller’s inventory in connection with Seller’s Business, which as g)all of the day before Triton Entities' interest in all Improvements located on Owned Real Property and on the Closing Date are those items listed and described on Schedule 2.1(f)-1, which shall be not less than the minimum inventory levels as listed and described on Schedule 2.1(f)-2 real property subject to a Real Property Lease (the “Inventory”"Leased Real Property");
; (g) Seller’s Business as a going concern, its Franchise Rights, all h)all intellectual property rights of the rights Triton Entities, patents and benefits (but not its obligations or liabilities) under its Franchise Agreementsapplications therefor, all intellectual property of Seller used in connection with its businesstrade secrets, including without limitationbusiness and marketing plans, all copyrights and applications therefor, trademarks, service marks, rights to computer software, trade secrets (including, without limitation, recipes) and trade names (whether acquired from Purchaserand all logos, an Affiliated franchisor or otherwise), (including without limitation all of the Seller’s right to do or develop business as a ▇▇▇▇’▇ ▇▇▇▇▇ Steak House restaurant), including without limitation the trade names listed on Schedule 2.1(g), goodwill and other intangible assets slogans (collectively, “"Intellectual Property”Property Rights");
; (h) All claims and rights of Seller under all agreements, contracts, software license agreements, purchase and sale orders and other executory contracts and commitments of Seller arising from or relating to its Businessi)all prepaid expenses, including without limitation those listed amounts paid in advance on Schedule 2.1(haccount of rent, insurance, property taxes, utility charges, fees and deposits ("Prepaid Expenses"); (j)originals or (at the option of the Triton Entities) (each an “Assigned Contract” and collectively the “Assigned Contracts”) and all accrued or prepaid advertising rights;
(i) All licenses, permits, consents, use agreements, approvals, authorizations and certificates of any Governmental Authority to the extent they relate to Seller’s Business (collectively, the “Licenses”), in each case to the extent transferable by the Seller, including without limitation those listed on Schedule 2.1(i);
(j) All files, operating manuals and correspondence pertaining to the Equipment; all customer and potential customer lists; mailing lists; all files pertaining to current and potential vendors and suppliers; all price lists; all advertising materials; and copies of three years of financial records (which financial records shall be certified by Queyrouze), business books, all books and records, ledgers, files, documents, business plans, budgets, financial statements, creative materials, advertising and promotional materials, corporate policy documents, architectural plans, mechanical drawings, parking plans, menus, training manuals, recipes, recipe manuals, and/or any other corporate manuals files and operating data relating to its Business, and any correspondence relating to the Business or reasonably related to the Business (collectively, the “"Books and Records”);
(k) All of Seller’s right, title and interest in and any right to lease the property identified in Schedule 2.1(a)-2, which includes all potential lease rights Seller may have, including but not limited options to lease adjacent property or options to purchase the leased premises.
(l) All of Seller’s right, title and interest in and to its telephone numbers and the directory advertising for such telephone numbers, to the extent assignable;
(m) All domain names, websites and other intellectual property of any kind or nature used by Seller in its Business except for those items identified on Schedule 2.1(m), which items are not used or related to Seller’s Business or to ▇▇▇▇’▇ ▇▇▇▇▇ Steak House;
(n) Except as provided in Section 2.2(c), all claims, security and other deposits, prepayments, prepaid expenses, refunds, causes of action, choses in action, rights of recovery, warranties and guarantees with respect to Purchased Assets (including without limitation the Inventory), rights of set off, and rights of recoupment of Seller (including any such item relating to the payment of taxes other than income taxes) and all federal, state and local franchise and property tax credits (“Claims”);
(o) Seller’s working cash, which shall be $1,000 per restaurant (the “Working Cash”"); and
and (pk)ownership of all (100%) All tax credits or rights to credits available to Seller of the membership interests in connection with the operation of Seller’s Business to the extent transferable to Purchaser but excluding any tip credits or income tax credits usable by Seller up to the Closing DateBMCT.
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