Sale and Purchase of Assets At the Closing, the Seller will sell, transfer, assign, convey, set over and deliver to the Purchaser, and the Purchaser will purchase, acquire and accept from the Seller all right, title and interest of the Seller in and to all of the assets, rights and properties of XxXxxxxxx Xxxxx, other than the Excluded Assets, that are owned or leased by the Seller primarily in connection with the conduct of the Business (collectively, the "PURCHASED ASSETS") including, without limitation, the following assets, rights and properties owned or leased by the Seller as of the Closing Date and primarily associated with the Business:
(a) all machinery, equipment, motor vehicles, tools, dies, spare parts, furniture and fixtures, leasehold improvements, automobiles, trucks, non-inventoried supplies and other miscellaneous tangible personal property related to, used or held for use in connection with the Business as of the Closing Date including those assets listed on Schedule 2.1(a) that are not located at the Facility (collectively the "EQUIPMENT");
(b) all inventories of raw materials, work in process, finished products, goods, spare parts, replacement and component parts, and office, packaging and other supplies located at the Facility (collectively, the "INVENTORIES");
(c) all accounts and notes receivable and other current assets (other than the Inventories) of the Business, including without limitation all trade and other debts owed to the Seller in connection with the operation of the Business prior to the Closing Date;
(d) the benefit of (but subject to the burden of) all contracts, agreements, leases, commitments, instruments, guaranties, bids, orders and proposals to which the Seller is a party primarily in connection with the Business as of the Closing Date, including the Assumed Contracts, but excluding all corporate-wide purchasing arrangements which relate generally to the Business and other divisions or business units of the Seller or any of its Affiliates and any other arrangements with other divisions or business units of the Seller or any of its Affiliates. Schedule 2.1(d) to this Agreement contains a complete list of all such contracts and other agreements to be transferred to the Purchaser hereunder (collectively, the "CONTRACTS");
(e) to the extent legally assignable, all Permits held by the Seller in connection with the Business as of the Closing Date;
(f) all books, records (other than personnel records unless consented to by the relevant Employees), ledgers, files, documents, correspondence, lists, plats, drawings, creative materials, advertising and promotional materials, studies, reports and other printed or written materials used or held for use by the Seller primarily in connection with the Business which are material to continuing the operation of the Business as a going concern;
(g) the real property owned by the Seller described on Schedule 4.8 of the Disclosure Schedules, together with all buildings, structures, improvements and fixtures and fittings located on or attached to such real property, and all rights appurtenant thereto (the "OWNED REAL PROPERTY");
(h) Intellectual Property used by the Seller and relating primarily to the Business, including the Seller's right to use the name "XxXxxxxxx Xxxxx" and the patents identified on Schedule 4.10;
(i) all prepaid items, deposits and other similar rights to future services or goods of the Seller relating to the Business (the prepaid items, deposits and other similar items to be conveyed to the Purchaser pursuant hereto are hereinafter collectively referred to as the "PREPAID ITEMS");
(j) all rights of the Seller relating to the Business under express or implied warranties from suppliers with respect to the Purchased Assets to the extent the same are assignable; and
(k) all other assets, whether tangible or intangible real or personal which exist on the Closing Date and which are primarily used in the Business.
Transfer of Assets and Liabilities On the Effective Date, the rights, privileges, powers and franchises, both of a public as well as of a private nature, of each of the Constituent Corporations shall be vested in and possessed by the Surviving Corporation, subject to all of the disabilities, duties and restrictions of or upon each of the Constituent Corporations; and all and singular rights, privileges, powers and franchises of each of the Constituent Corporations, and all property, real, personal and mixed, of each of the Constituent Corporations, and all debts due to each of the Constituent Corporations on whatever account, and all things in action or belonging to each of the Constituent Corporations shall be transferred to and vested in the Surviving Corporation; and all property, rights, privileges, powers and franchises, and all and every other interest, shall be thereafter the property of the Surviving Corporation as they were of the Constituent Corporations, and the title to any real estate vested by deed or otherwise in either of the Constituent Corporations shall not revert or be in any way impaired by reason of the Merger; provided, however, that the liabilities of the Constituent Corporations and of their shareholders, directors and officers shall not be affected and all rights of creditors and all liens upon any property of either of the Constituent Corporations shall be preserved unimpaired, and any claim existing or action or proceeding pending by or against either of the Constituent Corporations may be prosecuted to judgment as if the Merger had not taken place except as they may be modified with the consent of such creditors and all debts, liabilities and duties of or upon each of the Constituent Corporations shall attach to the Surviving Corporation, and may be enforced against it to the same extent as if such debts, liabilities and duties had been incurred or contracted by it.
Purchase and Sale of Assets Assumption of Liabilities 8 2.1 Purchase and Sale of Assets 8 2.2 Excluded Assets 10 2.3 Assumption of Liabilities 11 2.4 Excluded Liabilities 12 2.5 Further Conveyances and Assumptions; Consent of Third Parties 12 2.6 Purchase Price Allocation 13
Purchase of Assets 11
3.1 Assets Purchased by Assuming Bank 11
3.2 Asset Purchase Price 11
3.3 Manner of Conveyance; Limited Warranty; Nonrecourse; Etc. 12
3.4 Puts of Assets to the Receiver 12
3.5 Assets Not Purchased by Assuming Bank 13 3.6 Assets Essential to Receiver 15
Assumption of Assumed Liabilities (a) Except as expressly provided in Section 2.4(b), the Purchaser shall not assume, in connection with the transactions contemplated hereby, any liability or obligation of either Seller whatsoever, whether known, unknown, absolute, contingent or otherwise, and whether accrued or unaccrued.
(b) Subject to the foregoing Section 2.4(a), effective as of the Closing Date, the Purchaser shall assume the following liabilities and obligations of the Sellers arising out of the use, ownership or operation of the Business, the Facilities or the other Assets (collectively, the “Assumed Liabilities”):
(i) the obligations of the Sellers under (x) each Assumed Contract, related to the rights under each Assumed Contract assigned to the Purchaser under the Assignment and Assumption Agreement, (y) each JWWTP Agreement to the extent assigned to the Purchaser under the Assignment (JWWTP Agreements) and (z) each License included in the Assets required to be performed on or after the Closing Date;
(ii) all accounts payable, accrued expenses and other current liabilities of the Sellers related to the Business and accrued or existing as of the Closing Date, but only to the extent included in the determination of Final Net Working Capital;
(iii) all liabilities and obligations, known or unknown, relating to, resulting from, arising out of or in connection with, directly or indirectly, (A) events that occur, (B) services performed or products manufactured or sold, or (C) the ownership, operation or use of the Business and the Assets, in each case, from and after the Closing;
(iv) liabilities and obligations relating to or arising from physical or bodily injuries to, or damage to the property of, third parties that occur from and after the Closing to the extent caused by the physical condition of the Assets (which are being transferred as-is, where-is);
(v) liabilities arising in connection with any severance plan established by the Purchaser on or after the Closing Date; and
(vi) liabilities under any of the CBAs or any other collective bargaining agreement or other labor arrangement, including any grievances, to the extent arising from any act or omission after the Closing.
Excluded Assets and Liabilities The list of Assets described in this Agreement as being purchased is exclusive and the Parties agree that all remaining assets of ESSI and/or Seller are not to be purchased pursuant to this Agreement and shall be Excluded Assets. It is further agreed that in acquiring the Assets, Buyer is not assuming or undertaking to assume and shall have no responsibility for any liabilities whether fixed or contingent, past, present or future, or direct or indirect, arising out of or in connection with the Assets, or any other acts or omissions of ESSI and/or Seller in connection therewith prior to the Closing (collectively referred to as the "Excluded Liabilities"), including without limitation, (i) any claim arising out of or in connection with the failure by ESSI or Seller to comply with any applicable government regulation; (ii) federal, state or local tax liabilities (including any depreciation, investment tax credit recapture and rollback taxes); (iii) any claim arising out of or in connection with any Employee Plans of ESSI or Seller or with the employment by ESSI or Seller of any of its employees or any past employees or with the termination of any current employees; (iv) any claim resulting from defective products or workmanship (including any recalls or returns with respect thereto) related to goods or services invoiced prior to Closing; (v) any claim arising from environmental liabilities, and (vi) any claim under any provision of the New York Uniform Commercial Code or bulk sales law. LIMITATIONS ON WARRANTIES. EXCEPT FOR THOSE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER EXPRESSLY DISCLAIMS AND NEGATES AND BUYER HEREBY WAIVES, ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. AS EXAMPLES AND FOR THE AVOIDANCE OF DOUBT, BUT WITHOUT LIMITATION OF THE FOREGOING, THE ASSETS SHALL BE CONVEYED PURSUANT HERETO WITHOUT ANY WARRANTY OR REPRESENTATION WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE QUANTITY, PROFITABILITY, COLLECTIBILITY, QUALITY, CONDITION, SIZE, WEIGHT, SERVICEABILITY, CONFORMITY TO SAMPLES OR ANY OTHER ASPECT OF THE FIXTURES, EQUIPMENT OR OTHER PERSONAL PROPERTY INCLUDED AMONG THE ASSETS, ALL OF WHICH SHALL BE CONVEYED TO THE BUYER AS IS, WHERE IS, AND WITH ALL FAULTS AND DEFECTS AND IN THEIR PRESENT CONDITION AND STATE OF REPAIR AND WITHOUT ANY WARRANTIES WHATSOEVER OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. THE BUYER ACKNOWLEDGES THAT THIS WAIVER IS CONSPICUOUS.
Sale and Purchase of the Assets Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, the Sellers shall sell, assign, transfer, convey and deliver to the Purchaser, and the Purchaser shall purchase and acquire from the Sellers, free and clear of all Liens, all right, title and interest of the Sellers in and to all of its properties, assets, contracts and rights, of every kind and description and wherever located, related to, used in or intended for use in connection with the Business as currently conducted or currently contemplated to be conducted, other than the Excluded Assets (as defined below) (collectively, the “Purchased Assets”), including without limitation the following:
(a) all fixed assets, including, without limitation, all furniture, fixtures, equipment, machinery, tools, vehicles, office equipment, supplies, computers, telephones and other tangible personal property wherever located, including, without limitation, those set forth on Schedule 2.1(a);
(b) all inventory, stock in trade, merchandise, goods, supplies and other products, raw materials, work in progress, finished products, supply and packaging items, promotional materials and similar items, wherever located, including, without limitation, those set forth on Schedule 2.1(b) (collectively, the “Inventory”);
(c) all Permits, including, without limitation, those set forth on Schedule 5.17; 4306983-11
(d) all contracts set forth on Schedule 2.1(d) (the “Assumed Contracts”) and all customer deposits and prepayments associated with any Assumed Contracts (the “Customer Deposits”), including, without limitation, those Customer Deposits set forth on Schedule 2.1(d);
(e) all rights under or pursuant to all representations, warranties, guarantees and indemnities made by any third party related to any Purchased Assets;
(f) all real property, leaseholds and subleaseholds in real property, and easements, rights-of-way and other appurtenants thereto;
(g) all insurance proceeds, condemnation proceeds or rights, transferable or assignable claims for insurance proceeds, and any other claims, deposits (including security deposits), prepayments, prepaid assets, prepaid expenses (to be allocated pro rata), prepaid revenues, refunds, causes of action, rights of recovery, rights of setoff and rights of recoupment (including any such item related to the payment of Taxes);
(h) all of the goodwill and going concern value relating to the Business or any of the Purchased Assets;
(i) all of the Seller IP; and
(j) all other intangible and tangible assets, including, without limitation, all Books and Records, computer hardware, Software and electronic data, all supplier information, lists and correspondence, all customer information, reservation data, lists and correspondence, all licensee information, lists and correspondence, equipment logs, operating guides and manuals, all sales records, all research, statistical, production, marketing and promotional materials, records, files, reports and other documents and data, all business post office boxes and business telephone listings, all research results and other know-how, and all other materials, records, files and data, in whatever form contained.
Assets and Liabilities At the Effective Time, the Surviving Corporation shall possess all the rights, privileges, powers and franchises of a public as well as of a private nature, and be subject to all the restrictions, disabilities and duties of each of Acquisition Corp. and the Company (collectively, the “Constituent Corporations”); and all the rights, privileges, powers and franchises of each of the Constituent Corporations, and all property, real, personal and mixed, and all debts due to any of the Constituent Corporations on whatever account, as well as all other things in action or belonging to each of the Constituent Corporations, shall be vested in the Surviving Corporation; and all property, rights, privileges, powers and franchises, and all and every other interest shall be thereafter as effectively the property of the Surviving Corporation as they were of the several and respective Constituent Corporations, and the title to any real estate vested by deed or otherwise in either of such Constituent Corporations shall not revert or be in any way impaired by the Merger; but all rights of creditors and all liens upon any property of any of the Constituent Corporations shall be preserved unimpaired, and all debts, liabilities and duties of the Constituent Corporations shall thenceforth attach to the Surviving Corporation, and may be enforced against it to the same extent as if said debts, liabilities and duties had been incurred or contracted by it.
Purchase and Sale of Assets On the terms and subject to the conditions set forth herein, at the Closing, Sellers shall sell, convey, transfer, assign and deliver (or cause to be sold, conveyed, transferred, assigned and delivered) to Purchaser, and Purchaser shall purchase from Sellers, all of Sellers’ right, title and interest in, to and under the following assets as they exist on the Closing Date (collectively, the “Purchased Assets”), whether tangible or intangible, real, personal or mixed, Related to the Business, in each case free and clear of all Claims and Liens except Permitted Liens, as approved for sale, transfer and assignment pursuant to the Sale Approval Order:
(a) the Purchased Mortgage Servicing and rights to receive Servicing Compensation related thereto, including Servicing Compensation that is accrued and unpaid as of the Closing Date;
(b) except as provided in Section 2.15, the Servicing Advances outstanding as of the Closing Date;
(c) subject to Schedule M, the Xxxxxx Xxx Loans;
(d) the Owned Transferred IP and Licensed Transferred IP;
(e) the Books and Records;
(f) copies of all Tax Returns and related books, records and workpapers filed by or on behalf of any REMIC as to which a Seller is REMIC Administrator (and the duties of which in that capacity the Purchaser will assume), together with all information technology or software in Sellers’ possession related to the performance of the duties of the REMIC Administrator, including any such information technology or software used to assemble or supply information needed to be provided to any third-party service provider engaged by the REMIC Administrator to perform any or all of its duties on its behalf;
(g) all REMIC Residual Interests representing a De Minimis Interest in the residual interests of the related REMIC and required to be held by Purchaser as the REMIC Administrator of such REMIC;
(h) the Fixtures and Equipment;
(i) the Transferred IT Assets;
(j) the Owned Real Property, including, to the extent transferable, all easements, Government Authorizations and other rights and interests appurtenant thereto;
(k) certain other assets listed on Schedule L-1;
(l) credits, prepaid expenses, deferred charges, security deposits, prepaid items and duties to the extent related to a Purchased Asset or an Assumed Liability; Schedule L-2 sets forth all such items for which the amount is at least $100,000 as of the date of this Agreement;
(m) the causes of action, lawsuits, judgments, refunds, choses in action, rights of recovery, rights of set-off, rights of recoupment, demands and any other rights or Claims related to the Purchased Assets, the Assumed Liabilities and any foreclosure, recovery and other loss mitigation activities related to the Business, and, with respect to the Transferred Employees and any vendors (other than AFI and its Affiliates) with whom any of the Sellers have conducted business in the year prior to the Closing and with whom Purchaser will continue to engage in connection with the operation of the Business following the Closing (including, for the avoidance of doubt, any vendor that is a party to an Assumed Contract), all preference or avoidance claims and actions of any of the Sellers related thereto, including any such claims and actions arising under sections 544, 547, 548, 549, and 550 of the Bankruptcy Code (provided that, for the avoidance of doubt, Sellers shall be entitled to participate in the defense of any counterclaim that does not constitute an Assumed Liability) (the “Transferred Rights and Claims”);
(n) all rights of and benefits accruing under the Assumed Contracts and the Purchased Assets;
(o) all telephone or facsimile numbers used by Sellers in connection with the Business, which, for the sake of clarity, does not include such numbers for Sellers’ business locations or individuals that are not transferring to Purchaser pursuant to this Agreement;
(p) to the extent permitted by Law, all Permits held by Sellers to the extent primarily Related to the Business or the Purchased Assets;
(q) all signage, marketing materials, art and collectables relating to the Business;
(r) all rights to receive mail and other communications addressed to Sellers that pertains to the Business or the Purchased Assets, including any mail and communications from Serviced Mortgagors, Investors, ETS Customers, trustees, customers, suppliers, distributors and their respective representatives;
(s) all client lists, customer lists, supplier lists, mailing lists, do not call lists and other data Related to the Business, including service and warranty records, operating guides and manuals, studies, and correspondence (electronic or otherwise);
(t) to the extent transferable, all rights under insurance policies and insurance proceeds directly relating to Mortgage Loans serviced pursuant to any Servicing Agreement, all bank accounts, other accounts, safe deposit boxes, lock boxes and safes Related to the Business, and the responsibility for all cash and cash equivalents held in or required to be held in such accounts as identified in clause (i) of Section 2.3(a) (exclusive of the parenthetical reference to investment income);
(u) to the extent transferable, all guaranties, warranties, indemnities and similar rights in favor of any Seller or any Affiliate Seller to the extent Related to the Business or related to any Purchased Asset or Assumed Liability; and
(v) the goodwill and other intangible assets Related to the Business or related to the Purchased Assets.
Sale and Transfer of Assets In reliance on the representations, warranties, covenants and agreements contained herein and subject to the terms and conditions hereof, on the Closing Date (as hereinafter defined), Seller shall sell, convey, transfer and deliver to Buyer, and Buyer shall purchase from Seller, the assets, tangible and intangible, used or to be used in the Aviation Business, but expressly excluding the Excluded Assets (as defined in Section 1(b)), and including without limitation, the following (collectively, the “Assets”), free and clear of all Encumbrances:
(i) all assets of the Aviation Business as reflected on Schedule B attached hereto including, but not limited to, inventory, tools, equipment, vehicles, furniture and fixtures;
(ii) the right, title and interest of Aviation under the Master Lease, including leasehold improvements located on the real property leased by Seller under the Master Lease (the “Real Property”);
(iii) the right, title and interest of Aviation under the customer contracts and contract rights of all kind (including, without limitation, rental contracts, hanger leases, customer service contracts, tie down agreements, capital leases for equipment, furniture, trucks and other property used in or necessary for the operation of the Aviation Business as currently conducted) listed on Schedule B attached hereto, to the extent assumable and/or assignable, which Buyer has elected to assume by written notice to Seller within five (5) business days of the date of this Agreement, which Buyer may extend for an additional five (5) day period, together with all deposits and prepaid amounts under such contracts, agreements and arrangements (collectively “Assumed Aviation Contracts”);
(iv) the name “Ronson Aviation” and all other intellectual property rights and other intangible personal property owned or leased by Aviation that is used in or necessary for the conduct of the Aviation Business as currently conducted;
