Common use of Sale and Purchase of Acquired Assets Clause in Contracts

Sale and Purchase of Acquired Assets. ‌ (a) Pursuant to the Sale Order, and subject to the terms and conditions of this Agreement, Seller shall sell, transfer, assign and convey to Buyer, free and clear of any and all Encumbrances and Retained Obligations, and Buyer shall, as of the Closing Date, acquire and purchase, free and clear of any and all Encumbrances and Retained Obligations, all of Seller’s right, title and interest in and to all of the assets of the Business, except for the Excluded Assets set forth in Schedule 2.1(c) hereof (the “Acquired Assets”), including but not limited to, the following:‌ (i) All of Seller’s assets (tangible or intangible), including those assets set forth on Schedule 2.1(a), all Intellectual Property, including all copyrights developed after 1995, customer lists, purchase orders, customer reference manuals, databases and goodwill related thereto; (ii) The Assumed Contracts, whether or not listed on Schedule 2.1(a); (iii) Seller’s Contract Rights under the Assumed Contracts and all end user license agreements and maintenance contracts between Seller and customers relating to the Acquired Assets, excluding Contract Rights under (A) this Agreement and any other Contracts entered into by Seller with Buyer in connection with the transactions contemplated by this Agreement; (B) any Assumed Contracts requiring a Consent that is not obtained on or before the Closing Date or is not otherwise assigned to Buyer pursuant to the Sale Order (“Non-Assignable Contract(s)”) and (C) any and all employment agreements, labor contracts, stock option plans, retirement plans, Seller’s 401(k) plan, pension plans, agreements relating to the voting of shares in the company, agreements with employees, officers and/or shareholders and any and all other agreements relating to or otherwise concerning the foregoing.‌ (iv) Seller’s computer media, sales, advertising and marketing materials, catalogues and manuals, billing records, correspondence, data (only to the extent that such data that contains personally identifiable information that may be lawfully transferred), test software, software tools, product documentation, internal documentation, work in progress relating to the software products listed on Schedule 2.1(a), and files relating to the Acquired Assets (only to the extent that any such materials or files exist), excluding (A) Seller’s minute books, membership interest books and related organizational documents and (B) Seller’s files, books and records relating to the Excluded Assets or to Seller’s Obligations not included in the Assumed Obligations; (v) All assignable and transferable Permits possessed by Seller necessary for the lawful ownership and operation of the Acquired Assets; (vi) All rights and claims of Seller against any third parties, directly arising from or directly related to the Acquired Assets (which, for the avoidance of doubt, shall not include any rights and claims of Seller against any third parties, directly arising from or directly related to the Excluded Assets, any rights and claims by Seller against Buyer relating to this Agreement or any agreement entered into pursuant hereto, or any rights, claims or causes of action related to Novell, Inc., International Business Machines Corporation, Red Hat, Inc. and SUSE Linux GmbH or other similar claims); and (vii) Subject to Section 6.4, all rights and interests of Seller in each of the Purchased Subsidiaries, provided that any intercompany receivables due from Seller to the Purchased Subsidiaries listed on Schedule 2.1(a)(vii) shall be waived at Closing.

Sale and Purchase of Acquired Assets. ‌ (a) Pursuant to At the Sale Order, and subject to the terms and conditions of this AgreementClosing, Seller shall (and shall cause the Designated Subsidiaries to) sell, transfer, assign assign, convey and convey deliver to BuyerPurchaser, free and clear of Purchaser shall purchase and acquire from Seller and the Designated Subsidiaries, any and all Encumbrances and Retained Obligations, and Buyer shall, as of the Closing Date, acquire and purchase, free and clear of any and all Encumbrances and Retained Obligations, all of Seller’s 's and the Designated Subsidiaries' right, title and interest in in, to and to under all of the assets of Seller and the BusinessDesignated Subsidiaries set forth below in this Section 2.1 (any and all such assets, except for but excluding the Excluded Assets, the "Acquired Assets"): (a) the Scheduled Intermodal Assets; (b) New Purchased Equipment which is not Excess New Equipment; (c) Additional Equipment; (d) all customer leases relating to the rental of Intermodal Assets to which Seller or any of the Designated Subsidiaries is a party or an assignee as of the Closing and the subject matter of which relates exclusively to the rental of Intermodal Assets (other than the Scheduled Lease- In Transactions) (such leases, the "Intermodal Exclusive Leases"), to the extent that each such Intermodal Exclusive Lease is assignable; (e) the rights under customer leases relating to the rental of Intermodal Assets to which Seller or any of the Designated Subsidiaries is a party or an assignee as of the Closing and the subject matter of which relates non-exclusively to the rental of Intermodal Assets but only insofar as such rights relate to Intermodal Assets (other than the Scheduled Lease-In Transactions) (such leases, the "Intermodal Non-Exclusive Leases" and, together with the Intermodal Exclusive Leases, the "Intermodal Leases"), to the extent that such rights are assignable; (f) the exclusive Lease-In Transactions set forth in Schedule 2.1(c) hereof on Exhibit E (the “Acquired Assets”), including but not limited to"Scheduled Exclusive Lease-In Transactions") and the non-exclusive Lease-In Transactions set forth on Exhibit F to the extent relating to Intermodal Assets (the "Scheduled Non-Exclusive Lease-In Transactions" and together with the Exclusive Scheduled Lease-In Transactions, the following:‌"Scheduled Lease-In Transactions") to the extent consents to assignment, as necessary, have been obtained; (g) all revenues from Intermodal Leases attributable to the rental of Intermodal Assets with respect to any period commencing upon any date following the Closing Date; (h) all manufacturer's warranties and indemnities to the extent primarily related to the Intermodal Assets and all claims under such warranties and indemnities, in each case, to the extent assignable and to the extent related to the Intermodal Assets; (i) All the agreements listed in Section 2.1(i) of Seller’s assets (tangible or intangible)the Seller Disclosure Schedule, including those assets set forth on Schedule 2.1(a), all Intellectual Property, including all copyrights developed after 1995, customer lists, purchase orders, customer reference manuals, databases to the extent assignable and goodwill related theretoto the extent they relate to the Acquired Assets; (iij) The Assumed Contractsany depot, whether vendor, storage and interchange agreement to which Seller or not listed on Schedule 2.1(a)a Designated Subsidiary is a party relating exclusively to the Acquired Assets and which is identified as a contract to be assumed by Purchaser at Closing in writing delivered by Purchaser to Seller at least 10 days prior to the Closing to the extent assignable; (iiik) Seller’s Contract Rights under Permits to the Assumed Contracts extent assignable; (l) books and all end user license agreements and maintenance contracts between Seller and customers records relating to the Acquired Assets, excluding Contract Rights under including the maintenance history for all Intermodal Assets (A) this Agreement and any other Contracts entered into by Seller with Buyer in connection with the transactions contemplated by this Agreement; (B) any Assumed Contracts requiring a Consent that is not obtained on or before the Closing Date or is not otherwise assigned to Buyer pursuant to the Sale Order (“Non-Assignable Contract(s)”) and (C) any and all employment agreements, labor contracts, stock option plans, retirement plans, Seller’s 401(k) plan, pension plans, agreements relating to the voting of shares in the company, agreements with employees, officers and/or shareholders and any and all other agreements relating to or otherwise concerning the foregoing.‌ (iv) Seller’s computer media, sales, advertising and marketing materials, catalogues and manuals, billing records, correspondence, data (only electronic form to the extent that such data that contains personally identifiable information that may be lawfully transferredavailable), test software, software tools, product documentation, internal documentation, work electronic images of licenses and registration documents currently stored in progress relating to the software products listed on Schedule 2.1(a), and files relating to the Acquired Assets (only watermark to the extent that any such materials or files exist)available, excluding (A) Seller’s minute books, membership interest books and all related organizational documents and (B) Seller’s files, books and records relating to the Excluded Assets or to Seller’s Obligations not included in the Assumed Obligations; (v) All assignable and transferable Permits possessed by Seller necessary for the lawful ownership and operation of the Acquired Assets; (vi) All rights and claims of Seller against any third parties, directly arising from or directly related to the Acquired Assets (which, for the avoidance of doubt, shall not include any rights and claims of Seller against any third parties, directly arising from or directly related to the Excluded Assets, any rights and claims by Seller against Buyer relating to this Agreement or any agreement entered into pursuant hereto, or any rights, claims or causes of action related to Novell, Inc., International Business Machines Corporation, Red Hat, Inc. and SUSE Linux GmbH or other similar claims)databases; and (viim) Subject all claims against third parties, including, without limitation, those reflected by accounts receivable, relating to Section 6.4, damaged Intermodal Trailers that had not been repaired by the Closing Date and all rights and interests of amounts paid to Seller in each of respect thereof, whether before or after the Purchased Subsidiaries, provided that any intercompany receivables due from Seller to the Purchased Subsidiaries listed on Schedule 2.1(a)(vii) shall be waived at Closing.

Sale and Purchase of Acquired Assets. ‌ (a) Pursuant to On the Sale Order, terms and subject to the terms and conditions of set forth in this Agreement, Seller at the Closing the Sellers shall sell, assign, transfer, assign convey and convey deliver to Buyer, free and clear of any and all Encumbrances and Retained ObligationsParent or those Purchasers designated by Parent, and Buyer shall, as of the Closing DateParent or such Purchasers shall purchase, acquire and purchase, free and clear of any and all Encumbrances and Retained Obligations, accept from the Sellers all of Seller’s the right, title and interest (subject to Permitted Liens) of the Sellers in and to all of the assets assets, properties, rights, Contracts and claims of the Business, Sellers of every kind and description (except for the Excluded Assets set forth in Schedule 2.1(c) hereof Assets), wherever located, whether tangible or intangible, real, personal or mixed, whether or not appearing on the books of the Sellers, which are owned or leased by the Sellers on the Closing Date (collectively, the “Acquired Assets”), including but not limited towithout limitation and by way of example only, the following:‌following assets, properties, rights, Contracts and claims: (ia) All all shares of Class B ISE Stock beneficially owned or held of record by either Seller’s assets (tangible or intangible), including those assets set forth on Schedule 2.1(a), all Intellectual Property, including all copyrights developed after 1995, customer lists, purchase orders, customer reference manuals, databases and goodwill related thereto; (iib) The Assumed all memberships and seats leased or owned by either Seller on exchanges, ECNs, alternative trading systems or market centers of which either Seller is a member or on which either Seller is contractually entitled to execute securities transactions; (c) subject to Sections 2.2(d), 5.19 and 5.4, all of the right, title and interest of Sellers in or to each Contract to which either Seller is a party or bound in connection with the Business or Acquired Assets or by which any of the Acquired Assets are bound, including the Material Contracts and Real Property Leases and the leasehold interests in the real property covered by the Real Property Leases (all such Contracts, whether or not listed on Schedule 2.1(athe “Business Contracts”, and all such Business Contracts that are assigned and transferred pursuant to this Section 2.1(c), the “Assigned Contracts”); (iiid) Seller’s Contract Rights under the Assumed Contracts and all end user license agreements and maintenance contracts between Seller and customers relating to the Acquired Assets, excluding Contract Rights under Company Intellectual Property (A) this Agreement and any other Contracts entered into by Seller with Buyer in connection with the transactions contemplated by this Agreement; (B) any Assumed Contracts requiring a Consent that is not obtained on or before the Closing Date or is not otherwise assigned to Buyer pursuant to the Sale Order (“Non-Assignable Contract(s)”) and (C) any and all employment agreements, labor contracts, stock option plans, retirement plans, Seller’s 401(k) plan, pension plans, agreements relating to the voting of shares in the company, agreements with employees, officers and/or shareholders and any and all other agreements relating to or otherwise concerning the foregoing.‌ (iv) Seller’s computer media, sales, advertising and marketing materials, catalogues and manuals, billing records, correspondence, data (only to the extent that such data that contains personally identifiable information that may be lawfully transferred), test software, software tools, product documentation, internal documentation, work in progress relating to the software products listed on Schedule 2.1(a), and files relating to the Acquired Assets (only to the extent that any such materials or files exist), excluding (A) Seller’s minute books, membership interest books and related organizational documents and (B) Seller’s files, books and records relating to the Excluded Assets or to Seller’s Obligations not included in the Assumed Obligations; (v) All assignable and transferable Permits possessed by Seller necessary for the lawful ownership and operation of the Acquired Assets; (vi) All rights and claims of Seller against any third parties, directly arising from or directly related to the Acquired Assets (whichthan, for the avoidance of doubt, shall not include the Excluded Intellectual Property); (e) all equipment, furniture, fixtures and other tangible assets owned or leased by the Sellers; (f) all deposits with third parties of the Sellers, together with any unpaid interest accrued thereon from the respective obligors and any security or collateral therefore, including recoverable deposits; (g) all accounts receivable of the Sellers; (h) all cash and cash equivalents of the Sellers; (i) the U.S. Treasury Xxxx identified on Schedule 3.4; (j) all customer accounts of the Sellers and all cash, securities or other assets in such customer accounts; (k) all rights under or pursuant to all general intangibles (including warranties, indemnities, representations, guarantees and claims similar rights in favor of Seller against Sellers or any third partiesof their Affiliates with respect to any Acquired Asset or in connection with the operation of the Business), directly arising from or directly related chattel paper, instruments and documents of the Sellers; (l) all deferred and prepaid charges, sums and fees of the Sellers; (m) subject to Section 5.4, all Permits required to conduct the Business as conducted immediately prior to the Excluded Assets, any rights and claims by Seller against Buyer relating to this Agreement or any agreement entered into pursuant hereto, or any rights, claims or causes of action related to Novell, Inc., International Business Machines Corporation, Red Hat, Inc. and SUSE Linux GmbH or other similar claims)Closing; and (viin) Subject all proceeds received after the Closing with respect to Section 6.4any claims actually made prior to the Closing under any Insurance Policy relating to the Acquired Assets or the Business. provided, however, that the Acquired Assets shall not include (i) the limited liability company agreements, the certificate of formation or all organization documents of the Sellers, qualifications to conduct business as a foreign corporation, arrangements with registered agents relating to foreign qualifications, taxpayer and other identification numbers, seals, minute books, stock transfer books, blank stock certificates, and other documents relating to the organization, maintenance, and existence of the Sellers as limited liability companies, (ii) all Tax Returns of the Sellers and all books and records relating thereto, (iii) all rights and interests of Seller in each of the Purchased SubsidiariesSellers under this Agreement (or under any other agreement between the Seller on the one hand and the Parent and Purchasers on the other hand entered into on or after the date of this Agreement), provided that any intercompany receivables due from Seller to and (iv) the Purchased Subsidiaries listed on Schedule 2.1(a)(vii) shall be waived at ClosingExcluded Assets.

Sale and Purchase of Acquired Assets. ‌ (a) Pursuant to the Sale Order, and subject Subject to the terms and conditions of set forth in this Agreement, Seller shall sell, transfer, assign and convey hereby agrees to Buyer, free and clear of any and all Encumbrances and Retained Obligationssell to FCNY, and Buyer shall, as of FCNY hereby agrees to purchase on the Closing Date, acquire and purchase, free and clear of any and all Encumbrances and Retained Obligations, all of Seller’s right, title and interest in and to Date all of the assets of BHP (the Business, except for "Acquired Assets") (other than the Excluded Assets set forth in Schedule 2.1(cAssets) hereof (the “Acquired Assets”)including, including but not limited to, the following:‌without limitation: (ia) All Certificates of Seller’s assets (tangible Authority, state and county licenses and contracts owned or intangible)held by BHP, including those assets all of which are set forth on Schedule 2.1(a2.1 (a) attached hereto and incorporated herein by this reference. (b) Provider contracts and related agreements, all of which are set forth on Schedule 2.1(b) attached hereto and incorporated herein by this reference. (c) The lease relating to BHP's offices located at 000 Xxxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx 00000 (the "Amherst Office Lease"). (d) All books and records, files and off-site storage space owned or held by BHP (set forth on Schedule 2.1(d) attached hereto and incorporated herein by this reference). (e) All computer and telecommunications hardware, software and equipment owned or used in the conduct of BHP's business, software licenses (including the user licenses for the Diamond system), all Intellectual Property, including all copyrights developed after 1995, customer lists, purchase orders, customer reference manuals, computerized databases and goodwill related thereto;technical documentation, procedure manuals and training manuals owned by or in the possession of BHP (a list of which, to include all contracts, leases and licenses, is set forth on Schedule 2.1(e) attached hereto and incorporated herein by this reference). (iie) to FCNY or the Closing (as defined below), to identify those Non-Terminable Contracts that it is not willing to accept as part of the Acquired Assets (such Non-Terminable Contracts so identified and not accepted constituting Excluded Assets as defined in Section 2.2 hereof). The Assumed Contractsexclusion by FCNY of one or more Non-Terminable Contracts from the Acquired Assets shall not affect the Purchase Price payable to BHP hereunder, whether nor shall FCNY look to BHP for substitute assets, contracts or not listed on Schedule 2.1(a); (iii) Seller’s Contract Rights under services. Notwithstanding the Assumed foregoing sentence, however, BHP shall use reasonable commercial efforts to arrange with the vendors of any Non-Terminable Contracts and all end user license agreements and maintenance contracts between Seller and customers relating that FCNY declines to accept as part of the Acquired Assets, excluding Contract Rights under to cooperate with FCNY during any transition periods fol lowing the Closing so as not to prejudice FCNY by the discontinuation of services and goods until substitute assets, contracts or services may be put in place by FCNY. (Af) this Agreement All intangible assets, including, without limitation, the right to the name "Better Health Plan" and any other Contracts entered into by Seller with Buyer in connection with the transactions contemplated trademarks, copyrights, patents and similar rights (a list of which is set forth on Schedule 2.1(f) attached hereto and incorporated herein by this Agreement; reference). (Bg) any Assumed Contracts requiring a Consent that is not obtained on or before the Closing Date or is not otherwise assigned to Buyer pursuant to the Sale Order (“Non-Assignable Contract(s)”) All other personal, real and (C) any and all employment agreements, labor contracts, stock option plans, retirement plans, Seller’s 401(k) plan, pension plans, agreements relating to the voting of shares intangible property used by BHP in the company, agreements with employees, officers and/or shareholders and any and all other agreements relating to or otherwise concerning the foregoing.‌ (iv) Seller’s computer media, sales, advertising and marketing materials, catalogues and manuals, billing records, correspondence, data (only to the extent that such data that contains personally identifiable information that may be lawfully transferred), test software, software tools, product documentation, internal documentation, work in progress relating to the software products listed on Schedule 2.1(a), and files relating to the Acquired Assets (only to the extent that any such materials or files exist), excluding (A) Seller’s minute books, membership interest books and related organizational documents and (B) Seller’s files, books and records relating to the Excluded Assets or to Seller’s Obligations not included conduct of its business in the Assumed Obligations; (v) All assignable and transferable Permits possessed by Seller necessary for the lawful ownership and operation of the Acquired Assets; (vi) All rights and claims of Seller against any third parties, directly arising from or directly related to the Acquired Assets (which, for the avoidance of doubt, shall not include any rights and claims of Seller against any third parties, directly arising from or directly related to the Excluded Assets, any rights and claims by Seller against Buyer relating to this Agreement or any agreement entered into pursuant hereto, or any rights, claims or causes of action related to Novell, Inc., International Business Machines Corporation, Red Hat, Inc. and SUSE Linux GmbH or other similar claims); and (vii) Subject to Section 6.4, all rights and interests of Seller in each of the Purchased Subsidiaries, provided that any intercompany receivables due from Seller to the Purchased Subsidiaries listed on Schedule 2.1(a)(vii) shall be waived at Closingordinary course.

Sale and Purchase of Acquired Assets. ‌ (a) Pursuant to the Sale Order, and subject Subject to the terms and conditions of this Agreementhereof, and in reliance upon the representations, warranties and covenants contained herein, at the Closing, Buyer shall cause SWFSC to purchase, in consideration for the Assumed Liabilities, the following tangible and intangible assets from: (a) Seller and the Retained Companies (other than FMI), and Seller and the Retained Companies (other than FMI) shall (and Seller shall cause the Retained Companies (other than FMI) to) sell, convey, transfer, assign and convey deliver to BuyerSWFSC, free (i) all rights to causes of action, lawsuits, judgments, claims and clear demands of any and all Encumbrances and nature available to or being pursued by Seller or any Retained ObligationsCompany (other than FMI) relating to the Acquired Business or the ownership, and Buyer shalluse, as of the Closing Date, acquire and purchase, free and clear function or value of any Acquired Asset, whether arising by way of counterclaim or otherwise, but only to the extent that such causes of action, lawsuits, judgments, claims and demands do so relate; provided, that, except as provided in Section 6.9, any income Tax refund claim pursued by Seller or any Retained Company (other than FMI), in each case as common parent of an Affiliated Group, shall not be an Acquired Asset; (ii) all Encumbrances guarantees, warranties, indemnities and similar rights in favor of Seller or any Retained ObligationsCompany (other than FMI) relating to an Acquired Asset, but only to the extent such rights do so relate; (iii) all of Seller’s 's and the Retained Companies' (other than FMI's) right, title and interest in and to all of the assets of the Business, except for the Excluded Assets set forth in Schedule 2.1(c) hereof (the “Acquired Assets”), including but not limited to, the following:‌ (i) All of Seller’s assets (tangible or intangible), including those and intangible assets set forth on Schedule 2.1(a2.2(a), ; and (iv) all Intellectual Property, including all copyrights developed after 1995, customer lists, purchase orders, customer reference manuals, databases rights of Seller and goodwill related thereto; the Retained Companies (iiother than FMI) The Assumed Contracts, whether or not listed on Schedule 2.1(a); (iii) Seller’s Contract Rights under the Assumed Contracts Contracts; and (b) FMI, and FMI shall (and Seller shall cause FMI to) sell, convey, transfer, assign and deliver to SWFSC all end user license agreements of FMI's right, title and maintenance contracts between Seller interest in and customers to all of the tangible and intangible assets relating to the Acquired Assetsto, excluding Contract Rights under (A) this Agreement and any other Contracts entered into by Seller with Buyer in connection with the transactions contemplated by this Agreement; (B) any Assumed Contracts requiring a Consent that is not obtained on used, or before the Closing Date held for use, or is not otherwise assigned to Buyer pursuant to the Sale Order (“Non-Assignable Contract(s)”) and (C) any and all employment agreements, labor contracts, stock option plans, retirement plans, Seller’s 401(k) plan, pension plans, agreements relating to the voting of shares reasonably necessary or required in the company, agreements with employees, officers and/or shareholders and any and all other agreements relating to or otherwise concerning the foregoing.‌ (iv) Seller’s computer media, sales, advertising and marketing materials, catalogues and manuals, billing records, correspondence, data (only to the extent that such data that contains personally identifiable information that may be lawfully transferred), test software, software tools, product documentation, internal documentation, work in progress relating to the software products listed on Schedule 2.1(a), and files relating to the Acquired Assets (only to the extent that any such materials or files exist), excluding (A) Seller’s minute books, membership interest books and related organizational documents and (B) Seller’s files, books and records relating to the Excluded Assets or to Seller’s Obligations not included in the Assumed Obligations; (v) All assignable and transferable Permits possessed by Seller necessary for the lawful ownership and operation of the Acquired Business, other than the Excluded Assets (all such assets, together with the assets referred to in clause (a) above, being the "Acquired Assets; (vi) All rights and claims of Seller against any third parties"), directly arising from or directly related including, without limitation, all those items in the following categories that conform to the Acquired Assets (which, for the avoidance of doubt, shall not include any rights and claims of Seller against any third parties, directly arising from or directly related to the Excluded Assets, any rights and claims by Seller against Buyer relating to this Agreement or any agreement entered into pursuant hereto, or any rights, claims or causes of action related to Novell, Inc., International Business Machines Corporation, Red Hat, Inc. and SUSE Linux GmbH or other similar claims); and (vii) Subject to Section 6.4, all rights and interests of Seller in each definition of the Purchased Subsidiaries, provided that any intercompany receivables due from Seller to the Purchased Subsidiaries listed on Schedule 2.1(a)(vii) shall be waived at Closing.term "Acquired Assets":