Sale and Transfer of Assets. On the terms and subject to the conditions set forth in this Agreement, at the Closing, the Sellers shall sell, convey, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept from the Sellers free and clear of any Liens, other than Permitted Liens, all of the Sellers' right, title and interest at the Closing in and to all of the properties, assets and rights of every kind and description, whether accrued, contingent or otherwise, exclusively related to or exclusively used or held for use in connection with the Business (other than the Excluded Assets), including all assets (other than Excluded Assets) that may have been acquired by the Sellers for use exclusively in connection with the Business between the date hereof and the Closing Date (which shall be collectively referred to herein as the "Purchased Assets"), except for any such assets which may be disposed of, or sold or consumed prior to the Closing Date in the ordinary course of business. The Purchased Assets shall include, without limitation, all of the Sellers' right, title and interest at the Closing in and to all the following (except to the extent they constitute Excluded Assets): (a) all Intellectual Property owned or licensed by each Seller and used in or relating exclusively to the conduct of the Business as set forth on Schedule 2.1(a); (b) all Contracts (other than Excluded Contracts) used in or relating exclusively to the conduct of the Business as set forth on Schedule 2.1(b) to which each Seller is a party (collectively, the "Assumed Contracts"); (c) all rights of each Seller in and to the real property leases used in or relating exclusively to the conduct of the Business, together with all fixtures and other improvements thereon ("Leases"), including the Leases as set forth on Schedule 2.1(c); (d) all accounts receivable, trade receivables and other amounts owing from customers and clients of each Seller; (e) all books, records, customer lists, vendor lists, supplier lists, cost and pricing information, business plans, quality control records and manuals, blueprints, research and development files, used in or relating exclusively to the conduct of the Business; (f) all personal computers, computer hardware and software of each Seller used in or relating exclusively to the conduct of the Business; (g) all inventory used in or relating exclusively to the conduct of the Business, including without limitation, goods, goods-in-transit, supplies, containers, packaging materials, raw materials, work-in-progress, finished goals, samples and other consumables of each Seller; (h) all Permits of each Seller used in or relating exclusively to the conduct of the Business set forth on Schedule 2.1(h); (i) all tangible personal property, including all machinery, vehicles, tools, equipment, furnishings, office equipment, communications equipment, storage tanks, fixtures, furniture, spare and replacement parts, fuel and other tangible property used in or relating exclusively to the conduct of the Business owned or leased by each Seller, including without limitation, as set forth on Schedule 2.1(i); (j) all sales support, sales collateral, promotional materials, advertising materials and productions, sales and marketing files (whether in print or electronic format) including all past and present promotion copy and promotion copy data bases, web images, web copy, and advertising and direct marketing materials of each Seller used in or relating exclusively to the conduct of the Business; (k) all rights, claims (other than Post-Closing Claims), credits, causes of action or rights of set-off against third parties relating exclusively to the Business or affecting any of the Purchased Assets, including, to the extent transferable, claims pursuant to under any manufacturer's warranties, representations and guarantees made by suppliers, manufactures, contractors and other third parties in connection with products or services purchased by or furnished to either Seller used in or relating exclusively to the conduct of the Business or affecting any of the Purchased Assets; (l) all of the issued and outstanding membership interests of Hanford LLC and all of the capital stock of FWENC Massachusetts and FWENC Ohio; (m) all prepaid items and advance payments including, without limitation, credits, charges and prepaid expenses of each Seller used in or relating exclusively to the conduct of the Business and all loans and other advances owing by each Transferred Employee to either Seller, but excluding any cash, cash equivalents and other short term investments of the Sellers and their Subsidiaries; (n) all cash security deposits and xxxxxxx deposits placed with each Seller and with each of its Subsidiaries for the performance of an Assumed Contract or agreement which otherwise constitute a portion of the Purchased Assets; (o) to the extent available, all lists of present customers of the Business, all accounts receivable and notes receivable together with any unpaid interest or fees accrued thereon, or other amounts due with respect thereto of each Seller and any security or collateral therefore including recoverable advances and deposits; and (p) the Business as a going concern, including goodwill.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Tetra Tech Inc), Asset Purchase Agreement (Foster Wheeler LTD)
Sale and Transfer of Assets. (a) On the terms and subject to the conditions set forth in this Agreement, at the Closing, the Sellers Seller shall sell, convey, assign, transfer and deliver to Purchaser Purchaser's Subsidiary, and Purchaser Purchaser's Subsidiary shall purchase, acquire and accept from the Sellers Seller, free and clear of any Liens, other than Permitted LiensEncumbrances, all of the Sellers' Seller's right, title and interest at the Closing in and to the tangible assets, properties and rights of the Domestic Business and all of the properties, tangible assets and certain intangible rights of every kind Seller used in the operations of the Domestic Business as those assets exist on Closing, other than the Retained Assets, as that term is defined in Section 2.2, (collectively, the "Tangible Assets"), including, without limitation, the following:
(i) the Domestic Business;
(ii) all of the rights and descriptionbenefits of Seller under contracts, whether accruedpurchase orders, contingent proposals or otherwisebids relating to the Domestic Business;
(iii) all books, exclusively files and records of Seller relating to the Domestic Business, the Tangible Assets or Assumed Liabilities except for certain books and records described on Section 2.1(iii) of the Disclosure Schedule;
(iv) all personal computers used by the Domestic Business and software used by the Domestic Business, as set forth in Section 2.1(iv) of the Disclosure Schedule;
(v) all inventory, supplies, and other consumables related to or exclusively used in connection with the Tangible Assets or Domestic Business (the "Inventory");
(vi) all Permits used or held for use in connection with the Domestic Business (other than the Excluded Assets), including all assets (other than Excluded Assets) that may have been acquired by the Sellers for use exclusively in connection with the Business between the date hereof and the Closing Date (which shall be collectively referred to herein as the "Purchased Assets"), except for any such assets which may be disposed of, or sold or consumed prior to the Closing Date in the ordinary course of business. The Purchased Assets shall include, without limitation, all of the Sellers' right, title and interest at the Closing in and to all the following (except solely to the extent they constitute Excluded Assets):
(a) all Intellectual Property owned such Permits may be assigned or licensed by each Seller and used in or relating exclusively to the conduct of the Business as set forth on Schedule 2.1(a)transferred;
(bvii) all Contracts (other than Excluded Contracts) used in or relating exclusively to the conduct Accounts Receivable of the Business as set forth Domestic Business, except those listed in Section 2.2 (a)(vi) hereof and except those described on Schedule 2.1(bSection 2.1(vii) to which each Seller is a party (collectively, of the "Assumed Contracts")Disclosure Schedule;
(cviii) all rights investments set forth in Section 2.1(a)(viii) of each Seller in and to the Disclosure Schedule;
(ix) all real property leases used set forth in or relating exclusively to the conduct Section 2.1(a)(ix) of the BusinessDisclosure Schedule, together with all fixtures and other improvements thereon ("Leases"), including the Leases as set forth on Schedule 2.1(c);
(d) all accounts receivable, trade receivables and other amounts owing from customers and clients of each Seller;
(e) all books, records, customer lists, vendor lists, supplier lists, cost and pricing information, business plans, quality control records and manuals, blueprints, research and development files, used in or relating exclusively to the conduct of the Business;
(f) all personal computers, computer hardware and software of each Seller used in or relating exclusively to the conduct of the Business;
(g) all inventory used in or relating exclusively to the conduct of the Business, including without limitation, goods, goods-in-transit, supplies, containers, packaging materials, raw materials, work-in-progress, finished goals, samples and other consumables of each Seller;
(h) all Permits of each Seller used in or relating exclusively to the conduct of the Business set forth on Schedule 2.1(h);
(i) all tangible personal propertybuildings, other facilities and other structures and improvements thereon, (ii) all rights, privileges, hereditaments and appurtenances appertaining thereto or to any of such buildings or other facilities or other structures or improvements and (iii) to the extent constituting real property under Applicable Laws, all fixtures, leasehold improvements, installations, equipment (including furniture, fax machines and other office equipment) and other property attached thereto or located thereon;
(x) all cash and cash equivalents of Seller and its domestic subsidiaries or of the Domestic Business, except those listed in Section 2.2 (a)(x) hereof;
(xi) all machinery, vehicles, tools, equipmentequipment replacement and spare parts and supplies owned by Seller or a Business Subsidiary and used primarily or held for use primarily in connection with the Domestic Business, furnishings, office equipment, communications equipment, storage tanks, fixtures, furniture, spare except as described on Section 2.1(xi) of the Disclosure Schedule;
(xii) all tax refunds and replacement parts, fuel recoveries and other tangible property used in or relating exclusively similar benefits of the Domestic Business to the conduct extent listed as an asset of the Business owned on the June 30, 2000 Balance Sheet;
(xiii) any advertising or leased promotional materials related to or used in connection with the Tangible Assets or Domestic Business;
(xiv) all rights to the telephone numbers (and related directory listings), internet domain names, and internet sites used in connection with the Domestic Business or the Tangible Assets;
(xv) all manufacturer's warranties to the extent related to the Tangible Assets and all claims under such warranties;
(xvi) all prepaid expenses of the Domestic Business to the extent they are shown as an asset of the Business on the June 30, 2000 Balance Sheet or which have occurred prior to Closing in the ordinary course of business since the June 30, 2000 Balance Sheet;
(xvii) all of Seller's membership interests in Tennessee Blasting, LLC;
(xviii) all promissory notes or notes receivable of the Domestic Business;
(xix) the license agreement between Seller and West Africa Chemicals, except that Seller shall be granted a license to operate the plant and equipment and provide technical support using the explosives technology now transferred to West Africa Chemicals until such time as Seller is no longer an owner in West Africa Chemicals or such plant and equipment, it being agreed that the royalty now paid by each Seller, including without limitation, West Africa Chemicals to Seller shall continue for the benefit of Seller so long as set forth on Schedule 2.1(isuch license continues (the foregoing being referred to as the "Ghana Activities");
(jxx) all sales support, sales collateral, promotional materials, advertising materials the truck owned by Seller and productions, sales and marketing files (whether in print or electronic format) including all past and present promotion copy and promotion copy data bases, web images, web copy, and advertising and direct marketing materials of each Seller used in or relating exclusively by West Coast Explosives subject to the conduct existing lease agreement with respect to such truck as described on Section 2.1(xx) of the BusinessDisclosure Schedule and with payment terms consistent with historical practice;
(kxxi) all rightssecurity deposits, claims (xxxxxxx deposits, and all other than Post-Closing Claims), credits, causes forms of action security placed with Seller or rights of set-off against third parties relating exclusively Business Subsidiaries related to the Business or affecting any of the Purchased Assets, including, to the extent transferable, claims pursuant to under any manufacturer's warranties, representations and guarantees made by suppliers, manufactures, contractors and other third parties in connection with products or services purchased by or furnished to either Seller used in or relating exclusively to the conduct of the Business or affecting any of the Purchased Assets;
(l) all of the issued and outstanding membership interests of Hanford LLC and all of the capital stock of FWENC Massachusetts and FWENC Ohio;
(m) all prepaid items and advance payments including, without limitation, credits, charges and prepaid expenses of each Seller used in or relating exclusively to the conduct of the Business and all loans and other advances owing by each Transferred Employee to either Seller, but excluding any cash, cash equivalents and other short term investments of the Sellers and their Subsidiaries;
(n) all cash security deposits and xxxxxxx deposits placed with each Seller and with each of its Subsidiaries for the performance of an Assumed Contract a contract or agreement which otherwise constitute a portion of the Purchased AssetsTangible Assets to the extent they are shown as an asset of the Business on the June 30, 2000 Balance Sheet or which have occurred prior to Closing in the ordinary course of business since the June 30, 2000 Balance Sheet;
(oxxii) to the extent available, all lists of present customers of goodwill in or arising from the Tangible Assets and the Domestic Business, all accounts receivable and notes receivable together with any unpaid interest or fees accrued thereon, or other amounts due with respect thereto of each Seller and any security or collateral therefore including recoverable advances and deposits; and
(pxxiii) all other assets and properties of Seller which are used primarily in connection with the Domestic Business. To the extent any tangible assets of the Domestic Business (other than Retained Assets), within the descriptions of subsections (i) - (xxiii) above are owned, managed or leased by any Subsidiary of Seller including Green Mountain Explosives, Inc.(excluding Seller's Purchased Subsidiaries), (i) such items are included within the term "Assets," (ii) such Subsidiary is deemed to be included within the term "Seller" and (iii) Seller shall cause each such Subsidiary, at the Closing, to convey such Assets to Purchaser's Subsidiary, or to Seller for conveyance to Purchaser's Subsidiary, in accordance with the provisions hereof.
(b) On the terms and subject to the conditions set forth in this Agreement, at the Closing Seller shall sell, convey, assign, transfer and deliver to Parent or Purchaser all the shares or interests it owns in Seller's Foreign Subsidiaries, free and clear of all Encumbrances and Parent or Purchaser shall purchase, acquire and accept from Seller, free and clear of any Encumbrances, all of Seller's right, title and interest in and to the shares of Seller's Foreign Subsidiaries. Nothing in this Agreement shall prevent Parent or Purchaser, at their sole discretion, from transferring Seller's Foreign Subsidiaries acquired pursuant to this Section 2.1(b) to any of Purchaser's wholly owned Subsidiaries, but Seller makes no representation as a going concernto Purchaser's right to do so and any such transfer shall be subject to the terms of agreements governing such Seller's Foreign Subsidiaries. To the extent any shares or interests Seller owns in Seller's Foreign Subsidiaries above are owned, by any Subsidiary of Seller, (i) such Subsidiary is deemed to be included within the term "Seller" and (ii) Seller shall cause each such Subsidiary, at the Closing, to convey such shares or interests to Parent or Purchaser, or to Seller for conveyance to Parent or Purchaser, in accordance with the provisions hereof.
(c) On the terms and subject to the conditions set forth in this Agreement, at the Closing, Seller shall sell, convey, assign, transfer and deliver to Parent or an Affiliate of Parent, and Parent or an Affiliate of Parent shall purchase, acquire and accept from Seller, free and clear of any Encumbrances except for Encumbrances created by the licensing of Intellectual Property to Seller's Foreign Subsidiaries, all of Seller's right, title and interest in and to the Intellectual Property of the Domestic Business other than the intellectual property and intangible assets of Tennessee Blasting, LLC, including goodwillall the intangible assets, properties and rights of the Domestic Business wherever located, and all of the intangible assets of Seller used in the operations of the Domestic Business, wherever located, as those assets exist on Closing, other than the Retained Assets, as that term is defined in Section 2.2 (collectively, the "Intangible Assets" and together, with the "Tangible Assets" the "Assets"). To the extent any Intangible Assets are owned, managed or leased by any Subsidiary of Seller other than Tennessee Blasting, LLC, (i) such items are included within the term "Intangible Assets," (ii) such Subsidiary is deemed to be included within the term "Seller" and (iii) Seller shall cause each such Subsidiary, at the Closing, to convey such Assets to Parent or an Affiliate of Parent, or to Seller for conveyance to Parent or an Affiliate of Parent, in accordance with the provisions hereof.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Mining Services International Corp/), Asset Purchase Agreement (Mining Services International Corp/)
Sale and Transfer of Assets. On In reliance on the terms representations, warranties, covenants and agreements contained herein and subject to the terms and conditions set forth in this Agreementhereof, at on the ClosingClosing Date (as hereinafter defined), the Sellers Seller shall sell, convey, assign, transfer and deliver to Purchaser Buyer, and Purchaser Buyer shall purchasepurchase from Seller, acquire the assets, tangible and accept from intangible, used or to be used in the Sellers 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 any Liens, other than Permitted Liens, all Encumbrances:
(i) all assets of the Sellers' 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 at of Aviation under the Closing in and to all of the properties, assets and rights of every kind and description, whether accrued, contingent or otherwise, exclusively related to or exclusively used or held for use in connection with the Business (other than the Excluded Assets)Master Lease, including all assets leasehold improvements located on the real property leased by Seller under the Master Lease (other than Excluded Assetsthe “Real Property”);
(iii) that may have been acquired by the Sellers for use exclusively in connection with the Business between the date hereof and the Closing Date (which shall be collectively referred to herein as the "Purchased Assets"), except for any such assets which may be disposed of, or sold or consumed prior to the Closing Date in the ordinary course of business. The Purchased Assets shall include, without limitation, all of the Sellers' right, title and interest at of Aviation under the Closing in customer contracts and to all the following (except to the extent they constitute Excluded Assets):
(a) all Intellectual Property owned or licensed by each Seller and used in or relating exclusively to the conduct of the Business as set forth on Schedule 2.1(a);
(b) all Contracts (other than Excluded Contracts) used in or relating exclusively to the conduct of the Business as set forth on Schedule 2.1(b) to which each Seller is a party (collectively, the "Assumed Contracts");
(c) all contract rights of each Seller in and to the real property leases used in or relating exclusively to the conduct of the Business, together with all fixtures and other improvements thereon kind ("Leases"), including the Leases as set forth on Schedule 2.1(c);
(d) all accounts receivable, trade receivables and other amounts owing from customers and clients of each Seller;
(e) all books, records, customer lists, vendor lists, supplier lists, cost and pricing information, business plans, quality control records and manuals, blueprints, research and development files, used in or relating exclusively to the conduct of the Business;
(f) all personal computers, computer hardware and software of each Seller used in or relating exclusively to the conduct of the Business;
(g) all inventory used in or relating exclusively to the conduct of the Business, including without limitation, goods, goods-in-transit, supplies, containers, packaging materials, raw materials, work-in-progress, finished goals, samples and other consumables of each Seller;
(h) all Permits of each Seller used in or relating exclusively to the conduct of the Business set forth on Schedule 2.1(h);
(i) all tangible personal property, including all machinery, vehicles, tools, equipment, furnishings, office equipment, communications equipment, storage tanks, fixtures, furniture, spare and replacement parts, fuel and other tangible property used in or relating exclusively to the conduct of the Business owned or leased by each Seller, including without limitation, as set forth on Schedule 2.1(i);
(j) all sales support, sales collateral, promotional materials, advertising materials and productions, sales and marketing files (whether in print or electronic format) including all past and present promotion copy and promotion copy data bases, web images, web copy, and advertising and direct marketing materials of each Seller used in or relating exclusively to the conduct of the Business;
(k) all rights, claims (other than Post-Closing Claims), credits, causes of action or rights of set-off against third parties relating exclusively to the Business or affecting any of the Purchased Assets, including, to the extent transferable, claims pursuant to under any manufacturer's warranties, representations and guarantees made by suppliers, manufactures, contractors and other third parties in connection with products or services purchased by or furnished to either Seller used in or relating exclusively to the conduct of the Business or affecting any of the Purchased Assets;
(l) all of the issued and outstanding membership interests of Hanford LLC and all of the capital stock of FWENC Massachusetts and FWENC Ohio;
(m) all prepaid items and advance payments including, without limitation, creditsrental contracts, charges hanger leases, customer service contracts, tie down agreements, capital leases for equipment, furniture, trucks and prepaid expenses of each Seller other property used in or relating exclusively 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 Business and all loans and other advances owing by each Transferred Employee to either Seller, but excluding any cash, cash equivalents and other short term investments of the Sellers and their Subsidiaries;
(n) all cash security deposits and xxxxxxx deposits placed with each Seller and with each of its Subsidiaries for the performance of an Assumed Contract or agreement which otherwise constitute a portion of the Purchased Assets;
(o) to the extent available, all lists of present customers of the Business, all accounts receivable and notes receivable together with any unpaid interest or fees accrued thereon, or other amounts due with respect thereto of each Seller and any security or collateral therefore including recoverable advances and deposits; and
(p) the Aviation Business as a going concern, including goodwill.currently conducted;
Appears in 2 contracts
Samples: Asset Purchase Agreement (Rclc, Inc.), Asset Purchase Agreement (Rclc, Inc.)
Sale and Transfer of Assets. On (a) Subject to the terms and subject to the conditions set forth in of this Agreement, at the Closing, the Sellers shall GOC Group will sell, convey, assign, transfer and deliver deliver, and Texaco will cause to Purchaser be sold, conveyed, assigned, transferred and Purchaser shall delivered, to Buyer and Buyer will purchase, acquire and accept from or cause to be purchased as provided in Section 2(a) herein, at the Sellers free and clear of any Liens, other than Permitted Liens, Closing (as hereinafter defined) all of the Sellers' assets of the Operation existing at the Closing Date (as hereinafter defined) including, without limitation, the following assets (the “Assets”):
(i) all of GRMC’s right, title and interest at the Closing in and to all of the propertiesreal and personal properties (in- cluding properties which are leased from third parties, assets including both Lessor-built stations and rights of every kind and descriptionservice stations owned by GRMC on leased land, whether accrued(collectively, contingent or otherwise, exclusively related to or exclusively used or held for use in connection with the Business (other than the Excluded Assets“Leased Stations”), including all assets (other than Excluded Assets) that may but excluding the service stations designated on Exhibit A hereto as withheld properties and excluding the stations listed on Exhibit B hereto which have been acquired by the Sellers for use exclusively in connection with the Business between the date hereof and the Closing Date (which shall be collectively referred to herein as the "Purchased Assets"), except for any such assets which may be disposed of, or sold or consumed prior for which a binding contract to the Closing Date sell has been executed in the ordinary course of business. The Purchased Assets business prior to January 27, 1984), including all equipment and fixtures used in the Operation (collectively, the “Properties”), an accurate list of which is set forth in Exhibit C hereto, subject to the adjustment provisions of subsections (c)(i), (c)(iv), (c)(v) and (c)(vii) of this Section 1;
(ii) all of GRMC’s right, title and interest in, by assignment of, all of the leases and related security deposits (including leases for Leased Stations and dealer leases) (the “Leases”), contracts (including certain consumer contracts and distributorship agreements, but excluding those contracts listed on Exhibit E) (the “Contracts”), licenses, permits and other intangible property rights used in the Operation (the “Permits”), an accurate list of which Leases, Contracts and Permits is set forth in Exhibit D hereto, subject to the adjustment provisions of subsections (c)(ii) and (c)(iii) of this Section 1;
(iii) the exclusive license to use the Trademarks in the Territory as provided for in the Trademark License Agreement (as hereinafter defined);
(iv) all of GRMC’s right, title and interest in all of the petroleum products and other inventory owned by GRMC and located at the Properties (including the Leased Stations), including product in transit and finished inventory products owned by GRMC and held at third-party locations for use in the Operation on the Closing Date (the “Inventory”), exclusive of tires, batteries and accessories (which shall includebe retained by GRMC), subject to the adjustment provisions of subsection (c)(vi) of this Section 1;
(v) copies of all relevant documents owned by GRMC, copies of which are in the possession of Texaco or any member of the GOC Group, pertaining to the Properties (including, without limitation, all certificates of occupancy, surveys and construction drawings), the Leases, Contracts and Permits, the Inventory, the Receivables (as hereinafter defined) and the use of the Sellers' Trademarks by the Operation, and all advertising and promotional material, price and product lists, sales records and customer lists;
(vi) agreements (whether in the form of notes or contracts) by dealers to pay GRMC with respect to improvements on the service stations including the use of the Trademarks at the service stations (the “Dealer Amortizations”) listed on Exhibit D;
(vii) all of GRMC’s right, title and interest at to claims and causes of action relating to the Operation which arise on or after the Closing in and to all the following (except to the extent they constitute Excluded Assets):Date; and
(aviii) all Intellectual Property owned or licensed by each Seller of GRMC’s right, title and used interest to underground tanks, related piping and other property located in or relating exclusively to under real property owned by GRMC’s dealers, the conduct dealers of GRMC’s distributors or GRMC’s consumer customers in the Business as set forth on Schedule 2.1(a);Territory.
(b) all Contracts Notwithstanding anything herein to the contrary, the transaction contemplated by this Agreement does not include (i) the transfer to Buyer by GRMC of the accounts receivable, other than Excluded Contracts) used in or relating exclusively the Dealer Amortizations, of the Operation which originate prior to the conduct Closing Time (as hereinafter defined) (the “Receivables”); or (ii) the transfer to Buyer by the GOC Group of the Business as set forth on Schedule 2.1(b) to which each Seller is a party (collectively, the "Assumed Contracts");excluded assets listed in Exhibit E hereto.
(c) all rights of each Seller in and to In addition, certain Assets may be excluded or included under the real property leases used in or relating exclusively to the conduct of the Business, together with all fixtures and other improvements thereon ("Leases"), including the Leases as set forth on Schedule 2.1(c);
(d) all accounts receivable, trade receivables and other amounts owing from customers and clients of each Seller;
(e) all books, records, customer lists, vendor lists, supplier lists, cost and pricing information, business plans, quality control records and manuals, blueprints, research and development files, used in or relating exclusively to the conduct of the Business;
(f) all personal computers, computer hardware and software of each Seller used in or relating exclusively to the conduct of the Business;
(g) all inventory used in or relating exclusively to the conduct of the Business, including without limitation, goods, goods-in-transit, supplies, containers, packaging materials, raw materials, work-in-progress, finished goals, samples and other consumables of each Seller;
(h) all Permits of each Seller used in or relating exclusively to the conduct of the Business set forth on Schedule 2.1(h);following provisions:
(i) all tangible personal property, including all machinery, vehicles, tools, equipment, furnishings, office equipment, communications equipment, storage tanks, fixtures, furniture, spare and replacement parts, fuel and other tangible property used in or relating exclusively the event that Buyer is not satisfied with the status of title with respect to the conduct of the Business owned or leased by each Seller, including without limitation, as set forth on Schedule 2.1(i);
(j) all sales support, sales collateral, promotional materials, advertising materials and productions, sales and marketing files (whether in print or electronic format) including all past and present promotion copy and promotion copy data bases, web images, web copy, and advertising and direct marketing materials of each Seller used in or relating exclusively to the conduct of the Business;
(k) all rights, claims (other than Post-Closing Claims), credits, causes of action or rights of set-off against third parties relating exclusively to the Business or affecting any of the Purchased AssetsProperties, includingTexaco and GRMC shall use their respective best efforts to cure title at their expense, subject to the extent transferableprovisions of the second sentence of Section 9(c) herein, claims pursuant to under any manufacturer's warranties, representations and guarantees made by suppliers, manufactures, contractors and other third parties in connection with products or services purchased by or furnished to either Seller used in or relating exclusively prior to the conduct of the Business or affecting any of the Purchased Assets;
(l) all of the issued and outstanding membership interests of Hanford LLC and all of the capital stock of FWENC Massachusetts and FWENC Ohio;
(m) all prepaid items and advance payments including, without limitation, credits, charges and prepaid expenses of each Seller used in or relating exclusively to the conduct of the Business and all loans and other advances owing by each Transferred Employee to either Seller, but excluding any cash, cash equivalents and other short term investments of the Sellers and their Subsidiaries;
(n) all cash security deposits and xxxxxxx deposits placed with each Seller and with each of its Subsidiaries for the performance of an Assumed Contract or agreement which otherwise constitute a portion of the Purchased Assets;
(o) to the extent available, all lists of present customers of the Business, all accounts receivable and notes receivable together with any unpaid interest or fees accrued thereonClosing, or other amounts due with respect thereto if they cannot so cure title, Buyer, at its option, may exclude the property from the Properties sold hereunder, in which case the value to GRMC at GRMC’s expense (as provided in Section 9(n) herein) in which case the value of each Seller and any security or collateral therefore including recoverable advances and depositssuch products shall not be included in the final purchase price hereunder; and
(p) the Business as a going concern, including goodwill.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Getty Realty Corp /Md/), Asset Purchase Agreement (Getty Realty Corp /Md/)
Sale and Transfer of Assets. On the terms and subject to the conditions set forth in this Agreement, at At the Closing, the Sellers KCI shall sell, convey, assigntransfer, transfer deliver and assign to WCI or, at WCI's election, one of its wholly owned subsidiaries, and in exchange therefor, WCI shall deliver to Purchaser and Purchaser shall purchase, acquire KCI at the Closing or thereafter as provided by this Agreement the Purchase Price and accept from KCI, the Sellers free and clear of any Liens, other than Permitted Liens, all of the Sellers' right, title and interest at the Closing in and to all of the properties, assets and rights of every kind and description, whether accrued, contingent or otherwise, exclusively related to or exclusively used or held for use in connection with the Business (other than the Excluded Assets), including all following assets (other than Excluded Assets) that may have been acquired by the Sellers for use exclusively in connection with the Business between the date hereof and the Closing Date (which shall be collectively referred to herein as collectively, the "Purchased AssetsASSETS"), except for any such assets which may be disposed of, or sold or consumed prior to the Closing Date in the ordinary course of business. The Purchased Assets shall include, without limitation, all of the Sellers' right, title and interest at the Closing in and to all the following (except to the extent they constitute Excluded Assets):
(a) all Intellectual Property owned or licensed by each Seller the trucks, containers, operating machinery and equipment, processing equipment, shop tools, parts, supplies, accessories, inventory, physical assets and other tangible personal property used primarily in or relating exclusively to connection with the conduct ownership, operation and management of the Business as set forth on KCI Business, including without limitation the items listed in Schedule 2.1(a1.2(a) (the "FIXED ASSETS");
(b) all Contracts (other than Excluded Contracts) used of KCI's right, title and interest in or relating exclusively and to the conduct of the Business as set forth on contracts, leases, agreements, customer accounts, commitments and arrangements specifically identified in Schedule 2.1(b1.2(b) to which each Seller is a party (collectively, the "Assumed ContractsASSUMED CONTRACTS");
(c) all rights of each Seller in permits, licenses, titles (including motor vehicle titles and current registrations), fuel permits, zoning and land use approvals or zoning variances, occupancy permits, and any other similar documents from any and all governmental authorities constituting a material authorization or entitlement or otherwise material to the real property leases used in operation or relating exclusively to the conduct management of the BusinessKCI Business owned by, together with all fixtures and other improvements thereon ("Leases")issued to, including the Leases or held by KCI as set forth on Schedule 2.1(c)are transferable by their respective terms to WCI;
(d) all accounts receivable, trade receivables and other amounts owing from customers and clients of each Sellercustomer lists relating to the KCI Business;
(e) all booksKCI's right, records, customer lists, vendor lists, supplier lists, cost title and pricing information, business plans, quality control records interest in and manuals, blueprints, research and development files, used in or relating exclusively to the conduct logos, trade names, fictitious business names and service marks of KCI, including, without limitation, any right KCI may have to use the Businessname "KCI Trucking";
(f) all personal computers, computer hardware and software of each Seller used in or relating exclusively to the conduct goodwill of the KCI Business;
(g) all inventory used in or relating exclusively to the conduct of the Business, including without limitation, goods, goods-in-transit, supplies, containers, packaging materials, raw materials, work-in-progress, finished goals, samples and other consumables of each Seller[Omitted];
(h) all Permits guaranties, warranties, indemnities and similar rights in favor of each Seller KCI with respect to any of the Assets and all books and records primarily used in or relating exclusively to connection with the conduct operation of the Business set forth on Schedule 2.1(h)KCI Business;
(i) all tangible personal property, including all machinery, vehicles, tools, equipment, furnishings, office equipment, communications equipment, storage tanks, fixtures, furniture, spare operating and replacement parts, fuel and other tangible property used in or financial records relating exclusively to the conduct of the Business owned or leased by each SellerKCI Business, including including, without limitation, as set forth on Schedule 2.1(i);all ledgers, copies (but not originals) of books of account, depreciation schedules, inventory information, records relating to payables and receivables, equipment records, maintenance records, disposal records and information concerning customers; and
(j) all sales support, sales collateral, promotional materials, advertising materials Effective Date Current Assets of KCI. WCI and productions, sales and marketing files (whether in print or electronic format) including all past and present promotion copy and promotion copy data bases, web images, web copyKCI acknowledge that KCI will have been paid before the Effective Date for certain services to be rendered by WCI after the Effective Date with respect to KCI's prepaid customer accounts, and advertising and direct marketing materials of each Seller used in or relating exclusively KCI will have rendered services to certain customers prior to the conduct Effective Date who will be billed by WCI after the Effective Date with respect to certain other of KCI's customer accounts that are paid in arrears. Accordingly, within 30 days after the Closing Date, WCI and KCI shall prorate these prepaid and postpaid accounts as of the Business;
(k) all rightsClosing Date and shall reconcile the net amount due, claims (whereupon the party owing the other than Post-Closing Claims)will immediately pay the net amount due. Notwithstanding the foregoing, credits, causes of action or rights of set-off against third parties relating exclusively to the Business or affecting WCI shall not acquire any of the Purchased Assets, including, to assets listed on Schedule 3.3 (the extent transferable, claims pursuant to under any manufacturer's warranties, representations and guarantees made by suppliers, manufactures, contractors and other third parties in connection with products or services purchased by or furnished to either Seller used in or relating exclusively to the conduct of the Business or affecting any of the Purchased Assets;
(l) all of the issued and outstanding membership interests of Hanford LLC and all of the capital stock of FWENC Massachusetts and FWENC Ohio;
(m) all prepaid items and advance payments including, without limitation, credits, charges and prepaid expenses of each Seller used in or relating exclusively to the conduct of the Business and all loans and other advances owing by each Transferred Employee to either Seller, but excluding any cash, cash equivalents and other short term investments of the Sellers and their Subsidiaries;
(n) all cash security deposits and xxxxxxx deposits placed with each Seller and with each of its Subsidiaries for the performance of an Assumed Contract or agreement which otherwise constitute a portion of the Purchased Assets;
(o) to the extent available, all lists of present customers of the Business, all accounts receivable and notes receivable together with any unpaid interest or fees accrued thereon, or other amounts due with respect thereto of each Seller and any security or collateral therefore including recoverable advances and deposits; and
(p) the Business as a going concern, including goodwill"EXCLUDED ASSETS").
Appears in 1 contract
Sale and Transfer of Assets. On the terms and subject to the conditions set forth in this Agreement, at on the ClosingClosing Date, the Sellers shall sell, convey, assign, transfer and deliver unconditionally Transfer to Purchaser and/or one or more of Purchaser’s Affiliates or Subsidiaries, as designated by Purchaser, and Purchaser and/or one or more of its Affiliates or Subsidiaries, as applicable, shall purchase, acquire acquire, assume and accept from the Sellers Sellers, free and clear of any all Seller Liabilities, Liens, other than Claims and Interests (except for Liens created by Purchaser and any Assumed Permitted LiensLiens and Assumed Liabilities), all of the Sellers' ’ right, title and interest at the Closing in and to all of the propertiestheir Assets, assets and rights of every kind and description, whether accrued, contingent or otherwise, exclusively related to or exclusively used or held for use in connection with the Business (other than the Excluded Retained Assets (collectively, the “Acquired Assets”), including all assets (other than Excluded Assets) that may have been acquired by the Sellers for use exclusively in connection with the Business between the date hereof and the Closing Date (which shall be collectively referred to herein as the "Purchased Assets"), except for any such assets which may be disposed of, or sold or consumed prior to the Closing Date in the ordinary course of business. The Purchased Assets shall include, without limitation, all of the Sellers' right, title and interest at the Closing in and to all the following (except to the extent they constitute Excluded Assetsas listed in Section 2.2):
(a) all Intellectual Property owned or licensed by each Seller and used the shares of capital in or relating exclusively to the conduct TerreStar Solutions Inc. ( “Solutions”) listed on Section 4.24(c) of the Business as set forth on Schedule 2.1(a)Disclosure Letter;
(b) all Contracts (other than Excluded Contracts) used in or relating exclusively to the conduct Intellectual Property of the Business as set forth Sellers, including the items listed on Schedule Section 2.1(b) to which each Seller is a party (collectively, of the "Assumed Contracts")Disclosure Letter;
(c) all rights of each Seller in and to the real property leases used in or relating exclusively to the conduct of the Business, together with all fixtures and other improvements thereon ("Leases"), including the Leases as Contracts set forth on Schedule Section 2.1(c) of the Disclosure Letter (which Purchaser has the right to revise in its discretion in accordance with Section 6.11 hereof) (collectively, the “Designated Contracts”);
(d) the Real Property and personal property of Sellers, including the Leased Real Property (to the extent the applicable lease is a Designated Contract), all accounts receivableeasements and rights of way and all buildings, trade receivables fixtures and other amounts owing from customers and clients of each Sellerimprovements erected on the Real Property;
(e) all books, recordsfiles, data, customer lists, vendor lists, and supplier lists, cost and pricing information, business plans, quality control records and manuals, blueprints, research and development files, used in or relating exclusively personnel records of Transferred Employees to the conduct extent the Transfer of such items is permitted under Applicable Law (excluding personnel files for employees who are not Transferred Employees) and related books and records for the BusinessAcquired Assets and all other records of Sellers;
(f) all personal computerscomputer systems, computer hardware and software Software of each Seller used in or relating exclusively to the conduct of the BusinessSellers;
(g) all inventory used inventory, supplies, finished goods, works in or relating exclusively to the conduct of the Business, including without limitation, goodsprocess, goods-in-transit, supplies, containers, packaging materials, raw materials, work-in-progress, finished goals, samples materials and other consumables of each SellerSellers (the “Inventory”);
(h) all Transferable Permits of each Seller used in or relating exclusively to any Seller, including all letters of intent, reservations of spectrum and Permits issued by the conduct FCC and Industry Canada listed on Section 2.1(h) of the Business set forth on Schedule 2.1(h)Disclosure Letter;
(i) all tangible personal propertythe mobile satellite service system owned or operated by Sellers (including Sellers’ rights or rights of use with respect to T1 and T2, gateway earth stations, calibration earth stations, mobile earth stations (to the extent that the Sellers hold legal title to such mobile earth stations), and other facilities and equipment related thereto, collectively, the “Mobile Satellite System”), including all rights to (A) own, operate and control the Mobile Satellite System, (B) own, operate and control the Ancillary Terrestrial Component service, in the United States using the radio frequencies 2000-2010 and 2190-2200 MHz, (C) construct and operate terrestrial wireless facilities in the United States utilizing the spectrum referenced in (B), and (D) fully utilize the FCC Licenses and the Industry Canada Licenses in accordance with the conditions set out therein;
(j) all machinery, vehicles, tools, equipment, furnishings, office equipment, communications equipment, storage tanks, fixtures, furniture, spare and replacement parts, fuel parts and other tangible property used fixed Assets which are owned by Sellers (and Sellers’ right, title and interest in any leases relating to the same to the extent the applicable lease is a Designated Contract), including all of Sellers’ right, title and interest in or relating exclusively to the conduct all ground infrastructure, towers, transmission lines, antennas, microwave facilities, transmitters and related equipment (“System Equipment”) (all of the Business owned or leased by each Sellerforegoing, including without limitationcollectively, as set forth on Schedule 2.1(i“Equipment”);
(j) all sales support, sales collateral, promotional materials, advertising materials and productions, sales and marketing files (whether in print or electronic format) including all past and present promotion copy and promotion copy data bases, web images, web copy, and advertising and direct marketing materials of each Seller used in or relating exclusively to the conduct of the Business;
(k) all rights, claims (other than Post-Closing Claims), credits, causes advertising or promotional materials of action or rights of set-off against third parties relating exclusively to the Business or affecting any of the Purchased Assets, including, Sellers to the extent transferable, claims pursuant to under any manufacturer's warranties, representations and guarantees made by suppliers, manufactures, contractors and other third parties in connection with products or services purchased by or furnished to either Seller used in or relating exclusively related to the conduct of the Business or affecting any of the Purchased Assetsother Acquired Assets set forth in this Section 2.1;
(l) all of manufacturer’s warranties to the issued and outstanding membership interests of Hanford LLC extent related to the Acquired Assets and all of the capital stock of FWENC Massachusetts and FWENC Ohioclaims under such warranties;
(m) all prepaid items and advance payments including, without limitation, credits, charges and prepaid expenses of each Seller used in or relating exclusively to the conduct of extent Transferable under Applicable Law, all rights to the Business telephone numbers (and all loans related directory listings), Internet domain names, Internet sites and other advances owing by each Transferred Employee electronic addresses used by, assigned or allocated to either Seller, but excluding any cash, cash equivalents and other short term investments of the Sellers and their SubsidiariesSellers;
(n) all cash security deposits and xxxxxxx deposits placed with each Seller and with each prepaid expenses (excluding prepaid expenses related to Taxes) of its Subsidiaries for the performance of an Assumed Contract or agreement which otherwise constitute a Sellers relating to any portion of the Purchased Acquired Assets;
(o) all advances or similar prepayments relating to Transferred Employees;
(p) cash held in any security deposits, exxxxxx deposits, customer deposits and other deposits and all other forms of security placed with Sellers for the performance of a contract or agreement which otherwise constitutes a portion of the Acquired Assets (“Third Party Deposits”);
(q) all Investments and any and all Cash and Cash Equivalents or revenues received by the Sellers after the Funding Date in respect of the Acquired Assets;
(r) proceeds received after the Funding Date under insurance policies of Sellers to the extent availablereceived or receivable with respect to the Business or the Acquired Assets and, to the extent contractually and legally permissible, all lists rights of present customers every nature and description under or arising out of such policies to the extent unexpired as of the Closing Date, in each case, other than (i) policies which relate to any Employee Benefit Plans of Sellers which are not being assumed by Purchaser and (ii) any policies relating to the liability of Sellers’ directors and officers;
(s) all Accounts Receivable and Intercompany Receivables, whether or not reflected on the books of Sellers as of the Closing Date;
(t) customer relationships, goodwill and all other intangible assets relating to, symbolized by or associated with the Business, ;
(u) all accounts receivable and notes receivable together with any unpaid interest or fees accrued thereon, or other amounts due with respect thereto rights of each Seller and any security in the Assets owned by the Sellers necessary to or collateral therefore including recoverable advances and depositsutilized in the operation of the Business as it is presently conducted other than the Retained Assets; and
(pv) all rights, privileges, claims, demands, choses in action, prepayments, deposits, refunds, indemnification rights, warranty claims, offsets and other claims of Sellers against (i) Third Parties (“Actions”) relating to the Acquired Assets set forth in clauses (a) through (u) of this Section 2.1, other than Avoidance Actions set forth in Section 2.2(j) or (ii) the Business as a going concern, including goodwillPurchaser and/or any of Purchaser’s Affiliates or Subsidiaries.
Appears in 1 contract
Samples: Purchase Agreement (Dish DBS Corp)
Sale and Transfer of Assets. (a) On the terms and subject to the conditions set forth in this Agreement, at the Closing, the Sellers Seller shall sell, convey, assign, transfer and deliver to Purchaser Purchaser's Subsidiary, and Purchaser Purchaser's Subsidiary shall purchase, acquire and accept from the Sellers Seller, free and clear of any Liens, other than Permitted LiensEncumbrances, all of the Sellers' Seller's right, title and interest at the Closing in and to the tangible assets, properties and rights of the Domestic Business and all of the properties, tangible assets and certain intangible rights of every kind Seller used in the operations of the Domestic Business as those assets exist on Closing, other than the Retained Assets, as that term is defined in Section 2.2, (collectively, the "Tangible Assets"), including, without limitation, the following:
(i) the Domestic Business;
(ii) all of the rights and descriptionbenefits of Seller under contracts, whether accruedpurchase orders, contingent proposals or otherwisebids relating to the Domestic Business;
(iii) all books, exclusively files and records of Seller relating to the Domestic Business, the Tangible Assets or Assumed Liabilities except for certain books and records described on Section 2.1(iii) of the Disclosure Schedule;
(iv) all personal computers used by the Domestic Business and software used by the Domestic Business, as set forth in Section 2.1(iv) of the Disclosure Schedule;
(v) all inventory, supplies, and other consumables related to or exclusively used in connection with the Tangible Assets or Domestic Business (the "Inventory");
(vi) all Permits used or held for use in connection with the Domestic Business (other than the Excluded Assets), including all assets (other than Excluded Assets) that may have been acquired by the Sellers for use exclusively in connection with the Business between the date hereof and the Closing Date (which shall be collectively referred to herein as the "Purchased Assets"), except for any such assets which may be disposed of, or sold or consumed prior to the Closing Date in the ordinary course of business. The Purchased Assets shall include, without limitation, all of the Sellers' right, title and interest at the Closing in and to all the following (except solely to the extent they constitute Excluded Assets):
(a) all Intellectual Property owned such Permits may be assigned or licensed by each Seller and used in or relating exclusively to the conduct of the Business as set forth on Schedule 2.1(a)transferred;
(bvii) all Contracts (other than Excluded Contracts) used in or relating exclusively to the conduct Accounts Receivable of the Business as set forth Domestic Business, except those listed in Section 2.2 (a)(vi) hereof and except those described on Schedule 2.1(bSection 2.1(vii) to which each Seller is a party (collectively, of the "Assumed Contracts")Disclosure Schedule;
(cviii) all rights investments set forth in Section 2.1(a)(viii) of each Seller in and to the Disclosure Schedule;
(ix) all real property leases used set forth in or relating exclusively to the conduct Section 2.1(a)(ix) of the BusinessDisclosure Schedule, together with all fixtures and other improvements thereon ("Leases"), including the Leases as set forth on Schedule 2.1(c);
(d) all accounts receivable, trade receivables and other amounts owing from customers and clients of each Seller;
(e) all books, records, customer lists, vendor lists, supplier lists, cost and pricing information, business plans, quality control records and manuals, blueprints, research and development files, used in or relating exclusively to the conduct of the Business;
(f) all personal computers, computer hardware and software of each Seller used in or relating exclusively to the conduct of the Business;
(g) all inventory used in or relating exclusively to the conduct of the Business, including without limitation, goods, goods-in-transit, supplies, containers, packaging materials, raw materials, work-in-progress, finished goals, samples and other consumables of each Seller;
(h) all Permits of each Seller used in or relating exclusively to the conduct of the Business set forth on Schedule 2.1(h);
(i) all tangible personal propertybuildings, other facilities and other structures and improvements thereon, (ii) all rights, privileges, hereditaments and appurtenances appertaining thereto or to any of such buildings or other facilities or other structures or improvements and (iii) to the extent constituting real property under Applicable Laws, all fixtures, leasehold improvements, installations, equipment (including furniture, fax machines and other office equipment) and other property attached thereto or located thereon;
(x) all cash and cash equivalents of Seller and its domestic subsidiaries or of the Domestic Business, except those listed in Section 2.2 (a)(x) hereof;
(xi) all machinery, vehicles, tools, equipmentequipment replacement and spare parts and supplies owned by Seller or a Business Subsidiary and used primarily or held for use primarily in connection with the Domestic Business, furnishings, office equipment, communications equipment, storage tanks, fixtures, furniture, spare except as described on Section 2.1(xi) of the Disclosure Schedule;
(xii) all tax refunds and replacement parts, fuel recoveries and other tangible property used in or relating exclusively similar benefits of the Domestic Business to the conduct extent listed as an asset of the Business owned on the June 30, 2000 Balance Sheet;
(xiii) any advertising or leased promotional materials related to or used in connection with the Tangible Assets or Domestic Business;
(xiv) all rights to the telephone numbers (and related directory listings), internet domain names, and internet sites used in connection with the Domestic Business or the Tangible Assets;
(xv) all manufacturer's warranties to the extent related to the Tangible Assets and all claims under such warranties;
(xvi) all prepaid expenses of the Domestic Business to the extent they are shown as an asset of the Business on the June 30, 2000 Balance Sheet or which have occurred prior to Closing in the ordinary course of business since the June 30, 2000 Balance Sheet;
(xvii) all of Seller's membership interests in Tennessee Blasting, LLC;
(xviii) all promissory notes or notes receivable of the Domestic Business;
(xix) the license agreement between Seller and West Africa Chemicals, except that Seller shall be granted a license to operate the plant and equipment and provide technical support using the explosives technology now transferred to West Africa Chemicals until such time as Seller is no longer an owner in West Africa Chemicals or such plant and equipment, it being agreed that the royalty now paid by each Seller, including without limitation, West Africa Chemicals to Seller shall continue for the benefit of Seller so long as set forth on Schedule 2.1(isuch license continues (the foregoing being referred to as the "Ghana Activities");
(jxx) all sales support, sales collateral, promotional materials, advertising materials the truck owned by Seller and productions, sales and marketing files (whether in print or electronic format) including all past and present promotion copy and promotion copy data bases, web images, web copy, and advertising and direct marketing materials of each Seller used in or relating exclusively by West Coast Explosives subject to the conduct existing lease agreement with respect to such truck as described on Section 2.1(xx) of the BusinessDisclosure Schedule and with payment terms consistent with historical practice;
(kxxi) all rightssecurity deposits, claims (earnest deposits, xxx xll other than Post-Closing Claims), credits, causes forms of action security placed with Seller or rights of set-off against third parties relating exclusively Business Subsidiaries related to the Business or affecting any of the Purchased Assets, including, to the extent transferable, claims pursuant to under any manufacturer's warranties, representations and guarantees made by suppliers, manufactures, contractors and other third parties in connection with products or services purchased by or furnished to either Seller used in or relating exclusively to the conduct of the Business or affecting any of the Purchased Assets;
(l) all of the issued and outstanding membership interests of Hanford LLC and all of the capital stock of FWENC Massachusetts and FWENC Ohio;
(m) all prepaid items and advance payments including, without limitation, credits, charges and prepaid expenses of each Seller used in or relating exclusively to the conduct of the Business and all loans and other advances owing by each Transferred Employee to either Seller, but excluding any cash, cash equivalents and other short term investments of the Sellers and their Subsidiaries;
(n) all cash security deposits and xxxxxxx deposits placed with each Seller and with each of its Subsidiaries for the performance of an Assumed Contract a contract or agreement which otherwise constitute a portion of the Purchased AssetsTangible Assets to the extent they are shown as an asset of the Business on the June 30, 2000 Balance Sheet or which have occurred prior to Closing in the ordinary course of business since the June 30, 2000 Balance Sheet;
(oxxii) to the extent available, all lists of present customers of goodwill in or arising from the Tangible Assets and the Domestic Business, all accounts receivable and notes receivable together with any unpaid interest or fees accrued thereon, or other amounts due with respect thereto of each Seller and any security or collateral therefore including recoverable advances and deposits; and
(pxxiii) all other assets and properties of Seller which are used primarily in connection with the Domestic Business. To the extent any tangible assets of the Domestic Business (other than Retained Assets), within the descriptions of subsections (i) - (xxiii) above are owned, managed or leased by any Subsidiary of Seller including Green Mountain Explosives, Inc.(excluding Seller's Purchased Subsidiaries), (i) such items are included within the term "Assets," (ii) such Subsidiary is deemed to be included within the term "Seller" and (iii) Seller shall cause each such Subsidiary, at the Closing, to convey such Assets to Purchaser's Subsidiary, or to Seller for conveyance to Purchaser's Subsidiary, in accordance with the provisions hereof.
(b) On the terms and subject to the conditions set forth in this Agreement, at the Closing Seller shall sell, convey, assign, transfer and deliver to Parent or Purchaser all the shares or interests it owns in Seller's Foreign Subsidiaries, free and clear of all Encumbrances and Parent or Purchaser shall purchase, acquire and accept from Seller, free and clear of any Encumbrances, all of Seller's right, title and interest in and to the shares of Seller's Foreign Subsidiaries. Nothing in this Agreement shall prevent Parent or Purchaser, at their sole discretion, from transferring Seller's Foreign Subsidiaries acquired pursuant to this Section 2.1(b) to any of Purchaser's wholly owned Subsidiaries, but Seller makes no representation as a going concernto Purchaser's right to do so and any such transfer shall be subject to the terms of agreements governing such Seller's Foreign Subsidiaries. To the extent any shares or interests Seller owns in Seller's Foreign Subsidiaries above are owned, by any Subsidiary of Seller, (i) such Subsidiary is deemed to be included within the term "Seller" and (ii) Seller shall cause each such Subsidiary, at the Closing, to convey such shares or interests to Parent or Purchaser, or to Seller for conveyance to Parent or Purchaser, in accordance with the provisions hereof.
(c) On the terms and subject to the conditions set forth in this Agreement, at the Closing, Seller shall sell, convey, assign, transfer and deliver to Parent or an Affiliate of Parent, and Parent or an Affiliate of Parent shall purchase, acquire and accept from Seller, free and clear of any Encumbrances except for Encumbrances created by the licensing of Intellectual Property to Seller's Foreign Subsidiaries, all of Seller's right, title and interest in and to the Intellectual Property of the Domestic Business other than the intellectual property and intangible assets of Tennessee Blasting, LLC, including goodwillall the intangible assets, properties and rights of the Domestic Business wherever located, and all of the intangible assets of Seller used in the operations of the Domestic Business, wherever located, as those assets exist on Closing, other than the Retained Assets, as that term is defined in Section 2.2 (collectively, the "Intangible Assets" and together, with the "Tangible Assets" the "Assets"). To the extent any Intangible Assets are owned, managed or leased by any Subsidiary of Seller other than Tennessee Blasting, LLC, (i) such items are included within the term "Intangible Assets," (ii) such Subsidiary is deemed to be included within the term "Seller" and (iii) Seller shall cause each such Subsidiary, at the Closing, to convey such Assets to Parent or an Affiliate of Parent, or to Seller for conveyance to Parent or an Affiliate of Parent, in accordance with the provisions hereof.
Appears in 1 contract
Samples: Asset Purchase Agreement (Mining Services International Corp/)
Sale and Transfer of Assets. On Subject to the terms and subject to the conditions set forth in --------------------------- of this Agreement, at the ClosingClosing (as hereinafter defined), Buyer agrees to purchase from Seller, and Seller agrees to sell to Buyer, to the Sellers shall sell, convey, assign, transfer and deliver to Purchaser and Purchaser shall purchase, acquire and accept from the Sellers free and clear of any Liens, other than Permitted Liensextent legally transferable, all of the Sellers' Seller's right, title and interest at the Closing in and to all of the properties, assets and rights of every kind and description, whether accrued, contingent or otherwise, exclusively related to or exclusively used or held for use in connection with the Business (other than the Excluded Assets), including all following assets (other than Excluded Assets) that may have been acquired by the Sellers for use exclusively in connection with the Business between the date hereof and the Closing Date (which shall be collectively referred to herein as the "Purchased Assets"), except for any such assets which may be disposed of, or sold or consumed prior to the Closing Date in the ordinary course of business. The Purchased Assets shall include, without limitation, all of the Sellers' right, title and interest at the Closing in and to all the following (except to the extent they constitute Excluded Assets):
(a) The real property described on Schedule 1 hereto, including, ---------- without limitation, all Intellectual Property owned structures, buildings, fixtures and improvements located on said real property and together with all easements, privileges, rights of way and appurtenances pertaining to or licensed by each Seller and used in or relating exclusively accruing to the conduct benefit of such real property (the Business as set forth on Schedule 2.1(a"Real Property");
(b) All furniture and equipment owned by Seller and located at the Hospital and which are listed on Schedule 1(b) hereto (except for ------------- all Contracts (management information systems and related equipment, including all peripheral and other than Excluded Contracts) used in or relating exclusively to the conduct devices of the Business as set forth on Schedule 2.1(bMeditech System (collectively, "Meditech Equipment") and except for the other furniture and equipment described in Section 1.2 (k) and (l) hereof);
(c) The contracts, leases, commitments, purchase orders, agreements and other instruments to which each Seller is a party and which are listed on Schedule 2 hereto (collectively, the "Assumed Contracts");
(c) all rights of each Seller in and to the real property leases used in or relating exclusively to the conduct of the Business, together with all fixtures and other improvements thereon ("Leases"), including the Leases as set forth on Schedule 2.1(c);; ----------
(d) all accounts receivableAll licenses and permits, trade receivables to the extent such licenses and other amounts owing from customers permits are used in the business or operations of the Hospital or are used by Seller in connection therewith and clients of each Sellerto the extent such licenses and permits are legally transferable;
(e) Except as set forth in Section 1.2, all booksdocuments, records, customer listsoperating manuals and files, vendor listsincluding, supplier listswithout limitation, cost and pricing informationall patient records, business plansmedical records, quality control equipment records and manualsmedical and administrative libraries, blueprints, research and development files, used in or relating exclusively of Seller that pertain to the conduct of the BusinessHospital;
(f) all personal computers, computer hardware All prepaid expenses of Seller listed on Schedule 3 hereto and software of each Seller used in or relating exclusively to ---------- existing on the conduct of the Business;
Closing Date (g) all inventory used in or relating exclusively to the conduct of the Business, including without limitation, goods, goods-in-transit, supplies, containers, packaging materials, raw materials, work-in-progress, finished goals, samples and other consumables of each Selleras hereinafter defined);
(h) all Permits of each Seller used in or relating exclusively The non-exclusive right to use the conduct of the Business set forth on Schedule 2.1(h);
(i) all tangible personal property, including all machinery, vehicles, tools, equipment, furnishings, office equipment, communications equipment, storage tanks, fixtures, furniture, spare and replacement parts, fuel and other tangible property used in or relating exclusively to the conduct of the Business owned or leased by each Seller, including without limitation, as set forth on Schedule 2.1(i);
(j) all sales support, sales collateral, promotional materials, advertising materials and productions, sales and marketing files (whether in print or electronic format) including all past and present promotion copy and promotion copy data bases, web images, web copy, and advertising and direct marketing materials of each Seller used in or relating exclusively to the conduct of the Business;
(k) all rights, claims (other than Post-Closing Claims), credits, causes of action or rights of set-off against third parties relating exclusively to the Business or affecting any of the Purchased Assets, including, to the extent transferable, claims pursuant to under any manufacturer's warranties, representations and guarantees made by suppliers, manufactures, contractors and other third parties name "Greenbrier" in connection with products or services purchased by or furnished to either Seller used in or relating exclusively to the conduct operation of the Business or affecting any of the Purchased Assets;
(l) all of the issued and outstanding membership interests of Hanford LLC and all of the capital stock of FWENC Massachusetts and FWENC Ohio;
(m) all prepaid items and advance payments including, without limitation, credits, charges and prepaid expenses of each Seller used in or relating exclusively to the conduct of the Business and all loans and other advances owing by each Transferred Employee to either Seller, but excluding any cash, cash equivalents and other short term investments of the Sellers and their Subsidiaries;
(n) all cash security deposits and xxxxxxx deposits placed with each Seller and with each of its Subsidiaries for the performance of an Assumed Contract or agreement which otherwise constitute a portion of the Purchased Assets;
(o) to the extent available, all lists of present customers of the Business, all accounts receivable and notes receivable together with any unpaid interest or fees accrued thereon, or other amounts due with respect thereto of each Seller and any security or collateral therefore including recoverable advances and deposits; and
(p) the Business as a going concern, including goodwillHospital.
Appears in 1 contract
Sale and Transfer of Assets. On the terms and subject to the conditions set forth in of this Agreement, at on the ClosingClosing Date, the Sellers Seller shall sell, convey, assign, transfer to Buyer, and deliver to Purchaser Buyer shall purchase and Purchaser shall purchase, acquire and accept assignment from the Sellers Seller, free and clear of any Liens, other than Permitted Liensall Encumbrances (as defined in Section 2.2(b)), all of the Sellers' Seller’s right, title and interest at the Closing in and to all of the properties, assets assets, and other rights of every kind and descriptionnature, whether accruedtangible or intangible, contingent real or personal, owned, leased, licensed or otherwise held by the Seller (including indirect and other forms of beneficial ownership) as of the Closing Date, in each case to the extent used or held for use in connection with the Business, other than the Excluded Assets (as defined in Section 1.1(b)) (collectively, the “Acquired Assets”, and, other than the Transferred Subsidiaries, the “Non-Stock Assets”). Without limiting the foregoing, the Acquired Assets shall include the following, except to the extent that any of the following constitutes an Excluded Asset and except to the extent set forth in Section 1.4:
(i) All equipment and other tangible personal property, including, without limitation, computers and other electronic equipment, identified on Schedule 1.1(a)(i) (collectively, the “Equipment”) and all warranties and guarantees, if any, express or implied, existing for the benefit of Seller in connection with the Equipment to the extent transferable;
(ii) All customer lists and vendor lists, together with all books and records, including all corporate record books of any Transferred Subsidiaries, all ledgers, correspondence, lists, studies and reports and other printed materials, including, without limitation, all lists and records pertaining to customers, personnel, agents, vendors, distributors and pricing, sales and promotional literature, purchase and sale records, quality control records, research and development files, files and data, company manuals and other Business related documents and materials, whether written, electronic or otherwise, exclusively related to or exclusively and all telephone and facsimile numbers and internet access (including e-mail) accounts, in each case relating to, used or held for use in connection with the Business (collectively, the “Records”);
(iii) Subject to Section 1.4, all contracts, leases, licenses, maintenance and service agreements, purchase commitments and other than agreements identified on Schedule 1.1(a)(iii) attached hereto (collectively, the Excluded Assets“Assigned Contracts”);
(iv) Subject to Section 1.4, including all assets (other than Excluded Assets) that may have been acquired by the Sellers for use exclusively rights relating to, associated with, or used or useful in connection with the Business between (the date hereof “Assigned Contract Rights”) arising under the contracts, leases, licenses, maintenance and the Closing Date (which shall be collectively referred to herein as the "Purchased Assets")service agreements, except for any such assets which may be disposed of, or sold or consumed prior to the Closing Date in the ordinary course of business. The Purchased Assets shall include, without limitation, all of the Sellers' right, title purchase commitments and interest at the Closing in and to all the following (except to the extent they constitute Excluded Assets):
(a) all Intellectual Property owned or licensed by each Seller and used in or relating exclusively to the conduct of the Business as set forth other agreements identified on Schedule 2.1(a1.1(a)(iv) attached hereto (collectively, the “Unassigned Master Agreements”);
(bv) All rights under the Leases (as defined in Section 2.9(b)) listed on Schedule 1.1(a)(v) (“Real Estate Leases”);
(vi) All (A) software (in source code and object code format) identified in Schedule 1.1(a)(vi)(A); (B) all Contracts works of authorship or copyrights primarily used or held for use in connection with the Business arising under the laws of the United States, any other country or any political subdivision thereof, whether registered or unregistered and whether published or unpublished, all registrations and recordings thereof, and all applications in connection therewith; (other than C) all trade dress, trademarks and service marks (including trademark registrations and trademark applications) and logos identified in Schedule 1.1(a)(vi)(C) and all goodwill associated therewith; (D) all domain names identified in Schedule 1.1(a)(vi)(D); and (E) all trade names, corporate names, company names, business names and fictitious business names identified in Schedule 1.1(a)(vi)(E) and all goodwill associated therewith; (F) all patent applications listed on Schedule 1.1(a)(vi)(F), inventions, formulae, discoveries and ideas (whether or not embodied in any tangible form and including all tangible embodiments of the foregoing, such as instruction manuals, laboratory notebooks, prototypes, samples, studies and summaries) with the exception of those disclosed or claimed in patents and patent applications that are assigned to or held in the name of Seller or any Affiliate of Seller and that are specifically identified as Excluded ContractsAssets; (G) used in all proprietary information, know how or relating exclusively trade secrets primarily related to the conduct of Business; and (H) all algorithms, APIs, databases, data collections, circuit design assemblies, semiconductor devices, test vectors, network configurations and architectures, protocols, schematics, specifications, user interfaces primarily used or held for use in connection with the Business as set forth on Schedule 2.1(b) to which each Seller is a party (collectively, the "Assumed Contracts"“Business IP”);
(cvii) all rights of each Seller in and to the real property leases used in or relating exclusively to the conduct of the Business, together with all fixtures and other improvements thereon ("Leases")All inventory, including the Leases as set forth on Schedule 2.1(c);
(d) all accounts receivable, trade receivables and other amounts owing from customers and clients of each Seller;
(e) all books, records, customer lists, vendor lists, supplier lists, cost and pricing information, business plans, quality control records and manuals, blueprints, research and development files, used in or relating exclusively to the conduct of the Business;
(f) all personal computers, computer hardware and software of each Seller used in or relating exclusively to the conduct of the Business;
(g) all inventory used in or relating exclusively to the conduct of the Business, including without limitation, goods, goods-in-transit, supplies, containers, packaging materials, raw materials, work-in-progressprocess, finished goalsgoods, samples packaging materials, office supplies, maintenance supplies, spare parts and other consumables similar items of each SellerSeller used or held for use in connection with the Business;
(hviii) all Permits of each Seller used in or relating exclusively to the conduct All accounts, accounts receivable, notes and notes receivable and other receivables of the Business set forth on Schedule 2.1(hSeller (whether or not billed), other than the Retained Accounts Receivable (collectively, the “Accounts Receivable”);
(iix) all tangible personal propertyAll transferable approvals, authorizations, certifications, consents, variances, permissions, licenses and Permits (as defined in Section 2.16) to or from, or filings, notices or recordings to or with, federal, state, foreign, provincial and local governmental authorities used or held for use in connection with the Business;
(x) All deposits, prepayments and prepaid expenses or other similar current assets used or held for use in connection with the Business, other than the Retained Prepaid Assets;
(xi) All claims, warranties, guarantees, refunds, causes of action, rights of recovery, rights of set-off and rights of recoupment of every kind and nature (including all machineryrights to insurance proceeds), vehicles, tools, equipment, furnishings, office equipment, communications equipment, storage tanks, fixtures, furniture, spare and replacement parts, fuel and other tangible property used in or relating exclusively except for any of the foregoing to the conduct extent they relate to Excluded Assets or Excluded Liabilities;
(xii) All insurance, warranty and condemnation net proceeds received after the Closing Date with respect to damage, non-conformance of or loss to the Acquired Assets;
(xiii) Subject to Section 1.5, all equity interests and shares of capital stock of each of the Business Subsidiaries owned (directly or leased indirectly) by each Seller, including without limitation, the Seller as set forth on Schedule 2.1(i1.1(a)(xiii) (“Transferred Subsidiaries”);
(j) all sales support, sales collateral, promotional materials, advertising materials and productions, sales and marketing files (whether in print or electronic format) including all past and present promotion copy and promotion copy data bases, web images, web copy, and advertising and direct marketing materials of each Seller used in or relating exclusively to the conduct of the Business;
(k) all rights, claims (other than Post-Closing Claims), credits, causes of action or rights of set-off against third parties relating exclusively to the Business or affecting any of the Purchased Assets, including, to the extent transferable, claims pursuant to under any manufacturer's warranties, representations and guarantees made permitted by suppliers, manufactures, contractors and other third parties in connection with products or services purchased by or furnished to either Seller used in or relating exclusively to the conduct of the Business or affecting any of the Purchased Assets;
(l) all of the issued and outstanding membership interests of Hanford LLC and all of the capital stock of FWENC Massachusetts and FWENC Ohio;
(m) all prepaid items and advance payments including, without limitation, credits, charges and prepaid expenses of each Seller used in or relating exclusively to the conduct of the Business and all loans and other advances owing by each Transferred Employee to either Sellerapplicable law, but excluding any cash, cash equivalents and other short term investments of the Sellers and their Excluded Assets held by any Transferred Subsidiaries;
(nxiv) all cash security deposits and xxxxxxx deposits placed All goodwill, if any, primarily related to or associated with each Seller and with each of its Subsidiaries for the performance of an Assumed Contract or agreement which otherwise constitute a portion of the Purchased Acquired Assets;
(o) to the extent available, all lists of present customers of the Business, all accounts receivable and notes receivable together with any unpaid interest or fees accrued thereon, or other amounts due with respect thereto of each Seller and any security or collateral therefore including recoverable advances and deposits; and
(pxv) All other assets of any kind or nature of the Business as a going concernSeller primarily used or held for use in connection with the Business, including goodwillother than the Excluded Assets.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Openwave Systems Inc)
Sale and Transfer of Assets. (a) On the terms and subject to the conditions set forth in this Agreement, at the Closing, the Sellers Seller shall sell, convey, assign, transfer and deliver to Purchaser Purchaser, and Purchaser shall purchase, acquire and accept from the Sellers Seller, free and clear of any Liens, other than Permitted LiensEncumbrances, all of the Sellers' right, title and interest at the Closing in and to all of the propertiesassets, assets properties and rights of every kind the Business as those assets exist on Closing, other than the Retained Assets, as that term is defined in Section 2.2, (collectively, the “Acquired Assets”), including, without limitation, the following:
(i) the assets set forth on Section 2.1(a)(i) of the Disclosure Schedule;
(ii) all of Seller’s rights and descriptionbenefits under those contracts, whether accruedpurchase orders, contingent leases, proposals or otherwisebids relating to the Business identified in Section 2.1(a)(ii) of the Disclosure Schedule (the “Assumed Contracts”);
(iii) all of Seller’s books, exclusively files and records relating to the Business, the Acquired Assets or Assumed Liabilities, except for certain books and records described on Section 2.1(a)(iii) of the Disclosure Schedule;
(iv) all personal computers and software related to or exclusively used in connection with the Acquired Assets or Business;
(v) all inventory, supplies, and other consumables related to or used in connection with the Acquired Assets or Business (the “Inventory”);
(vi) all Permits used or held for use in connection with the Business (other than the Excluded Assets)Acquired Assets or Business, including all assets (other than Excluded Assets) that may have been acquired by the Sellers for use exclusively in connection with the Business between the date hereof and the Closing Date (which shall be collectively referred to herein as the "Purchased Assets"), except for any such assets which may be disposed of, or sold or consumed prior to the Closing Date in the ordinary course of business. The Purchased Assets shall include, without limitation, all of the Sellers' right, title and interest at the Closing in and to all the following (except solely to the extent they constitute Excluded Assets):
(a) all Intellectual Property owned such Permits may be assigned or licensed by each Seller and used in or relating exclusively to the conduct of the Business as set forth on Schedule 2.1(a)transferred;
(bvii) all Contracts (other than Excluded Contracts) used in or relating exclusively to the conduct of the Business as set forth on Schedule 2.1(b) to which each Seller is a party (collectively, the "Assumed Contracts");
(c) all rights of each Seller in and to the real property leases used in or relating exclusively to the conduct of the Business, together with all fixtures and other improvements thereon ("Leases"), including the Leases as set forth on Schedule 2.1(c);
(d) all accounts receivable, trade receivables and other amounts owing from customers and clients of each Seller;
(e) all books, records, customer lists, vendor lists, supplier lists, cost and pricing information, business plans, quality control records and manuals, blueprints, research and development files, used in or relating exclusively to the conduct Accounts Receivable of the Business;
(fviii) all personal computersrights under the Real Property Lease and any other real property used or held for use by the Seller or in connection with the Business, computer hardware together with (i) all buildings, other facilities and software other structures and improvements related thereto, (ii) all rights, privileges, hereditaments and appurtenances appertaining thereto or to any of each such buildings or other facilities or other structures or improvements, and (iii) all fixtures, leasehold improvements, installations, equipment (including furniture, fax machines and other office equipment) and other property attached thereto or located thereon;
(ix) all prepayments, deposits or advances related to Assumed Contracts;
(x) all equipment, machinery, vehicles, tools, equipment replacement and spare parts and supplies owned by Seller and used or held for use in connection with the Acquired Assets or Business;
(xi) any advertising or promotional materials related to or used in connection with the Acquired Assets or relating exclusively Business;
(xii) all goodwill related to the conduct Business and Acquired Assets including the name “MedSource Packaging Concepts”;
(xiii) all manufacturer’s warranties to the extent related to the Acquired Assets or Business and all claims under such warranties;
(xiv) all prepaid expenses of the Business;
(gxv) all inventory used promissory notes or notes receivable in or relating exclusively to the conduct of the Business, including without limitation, goods, goods-in-transit, supplies, containers, packaging materials, raw materials, work-in-progress, finished goals, samples and other consumables of each Seller;
(h) all Permits of each Seller used in or relating exclusively to the conduct of the Business set forth on Schedule 2.1(h);
(i) all tangible personal property, including all machinery, vehicles, tools, equipment, furnishings, office equipment, communications equipment, storage tanks, fixtures, furniture, spare and replacement parts, fuel and other tangible property used in or relating exclusively to the conduct of the Business owned or leased by each Seller, including without limitation, as set forth on Schedule 2.1(i);
(j) all sales support, sales collateral, promotional materials, advertising materials and productions, sales and marketing files (whether in print or electronic format) including all past and present promotion copy and promotion copy data bases, web images, web copy, and advertising and direct marketing materials of each Seller used in or relating exclusively to the conduct favor of the Business;
(kxvi) all rightssecurity deposits, claims (xxxxxxx deposits, and all other than Post-Closing Claims), credits, causes forms of action security placed with Seller related to or rights of set-off against third parties relating exclusively to the Business or affecting any of the Purchased Assets, including, to the extent transferable, claims pursuant to under any manufacturer's warranties, representations and guarantees made by suppliers, manufactures, contractors and other third parties in connection with products the Acquired Assets or services purchased by or furnished to either Seller used in or relating exclusively to the conduct of the Business or affecting any of the Purchased Assets;
(l) all of the issued and outstanding membership interests of Hanford LLC and all of the capital stock of FWENC Massachusetts and FWENC Ohio;
(m) all prepaid items and advance payments including, without limitation, credits, charges and prepaid expenses of each Seller used in or relating exclusively to the conduct of the Business and all loans and other advances owing by each Transferred Employee to either Seller, but excluding any cash, cash equivalents and other short term investments of the Sellers and their Subsidiaries;
(n) all cash security deposits and xxxxxxx deposits placed with each Seller and with each of its Subsidiaries for the performance of an Assumed Contract a contract or agreement which otherwise constitute a portion of the Purchased Assetsagreement;
(oxvii) to the extent available, all lists of present customers of Seller’s other tangible and intangible assets and properties which are used in connection with the Business, all accounts receivable and notes receivable together with any unpaid interest or fees accrued thereon, or other amounts due with respect thereto of each Seller and any security or collateral therefore including recoverable advances and deposits; and
(pxviii) all right, title and interest in and to the Intellectual Property of Seller used in connection with the Business as a going concernor the Acquired Assets including all of the Trade names and Trademarks listed on Schedule 2.1(a)(xviii). To the extent any Acquired Assets are owned, including goodwillmanaged or leased by any subsidiary of Seller, (i) such items are included within the term “Acquired Assets,” (ii) such subsidiary is deemed to be included within the term “Seller,” and (iii) Seller shall cause each such subsidiary, at the Closing, to convey such Acquired Assets to Purchaser, or to Seller for conveyance to Purchaser, in accordance with the provisions hereof.
Appears in 1 contract
Samples: Asset Purchase Agreement (Merit Medical Systems Inc)
Sale and Transfer of Assets. (a) On the terms and subject to the conditions set forth in this Agreement, at the Closing, the Sellers Seller shall sell, convey, assign, transfer and deliver to Purchaser Purchaser's Subsidiary, and Purchaser Purchaser's Subsidiary shall purchase, acquire and accept from the Sellers Seller, free and clear of any Liens, other than Permitted LiensEncumbrances, all of the Sellers' Seller's right, title and interest at the Closing in and to the tangible assets, properties and rights of the Domestic Business and all of the properties, tangible assets and certain intangible rights of every kind Seller used in the operations of the Domestic Business as those assets exist on Closing, other than the Retained Assets, as that term is defined in Section 2.2, (collectively, the "Tangible Assets"), including, without limitation, the following:
(i) the Domestic Business;
(ii) all of the rights and descriptionbenefits of Seller under contracts, whether accruedpurchase orders, contingent proposals or otherwisebids relating to the Domestic Business;
(iii) all books, exclusively files and records of Seller relating to the Domestic Business, the Tangible Assets or Assumed Liabilities except for certain books and records described on Section 2.1(iii) of the Disclosure Schedule;
(iv) all personal computers used by the Domestic Business and software used by the Domestic Business, as set forth in Section 2.1(iv) of the Disclosure Schedule;
(v) all inventory, supplies, and other consumables related to or exclusively used in connection with the Tangible Assets or Domestic Business (the "Inventory");
(vi) all Permits used or held for use in connection with the Domestic Business (other than the Excluded Assets), including all assets (other than Excluded Assets) that may have been acquired by the Sellers for use exclusively in connection with the Business between the date hereof and the Closing Date (which shall be collectively referred to herein as the "Purchased Assets"), except for any such assets which may be disposed of, or sold or consumed prior to the Closing Date in the ordinary course of business. The Purchased Assets shall include, without limitation, all of the Sellers' right, title and interest at the Closing in and to all the following (except solely to the extent they constitute Excluded Assets):
(a) all Intellectual Property owned such Permits may be assigned or licensed by each Seller and used in or relating exclusively to the conduct of the Business as set forth on Schedule 2.1(a)transferred;
(bvii) all Contracts (other than Excluded Contracts) used in or relating exclusively to the conduct Accounts Receivable of the Business as set forth Domestic Business, except those listed in Section 2.2 (a)(vi) hereof and except those described on Schedule 2.1(bSection 2.1(vii) to which each Seller is a party (collectively, of the "Assumed Contracts")Disclosure Schedule;
(cviii) all rights investments set forth in Section 2.1(a)(viii) of each Seller in and to the Disclosure Schedule;
(ix) all real property leases used set forth in or relating exclusively to the conduct Section 2.1(a)(ix) of the BusinessDisclosure Schedule, together with all fixtures and other improvements thereon ("Leases"), including the Leases as set forth on Schedule 2.1(c);
(d) all accounts receivable, trade receivables and other amounts owing from customers and clients of each Seller;
(e) all books, records, customer lists, vendor lists, supplier lists, cost and pricing information, business plans, quality control records and manuals, blueprints, research and development files, used in or relating exclusively to the conduct of the Business;
(f) all personal computers, computer hardware and software of each Seller used in or relating exclusively to the conduct of the Business;
(g) all inventory used in or relating exclusively to the conduct of the Business, including without limitation, goods, goods-in-transit, supplies, containers, packaging materials, raw materials, work-in-progress, finished goals, samples and other consumables of each Seller;
(h) all Permits of each Seller used in or relating exclusively to the conduct of the Business set forth on Schedule 2.1(h);
(i) all tangible personal propertybuildings, other facilities and other structures and improvements thereon, (ii) all rights, privileges, hereditaments and appurtenances appertaining thereto or to any of such buildings or other facilities or other structures or improvements and (iii) to the extent constituting real property under Applicable Laws, all fixtures, leasehold improvements, installations, equipment (including furniture, fax machines and other office equipment) and other property attached thereto or located thereon;
(x) all cash and cash equivalents of Seller and its domestic subsidiaries or of the Domestic Business, except those listed in Section 2.2 (a)(x) hereof;
(xi) all machinery, vehicles, tools, equipmentequipment replacement and spare parts and supplies owned by Seller or a Business Subsidiary and used primarily or held for use primarily in connection with the Domestic Business, furnishings, office equipment, communications equipment, storage tanks, fixtures, furniture, spare except as described on Section 2.1(xi) of the Disclosure Schedule;
(xii) all tax refunds and replacement parts, fuel recoveries and other tangible property used in or relating exclusively similar benefits of the Domestic Business to the conduct extent listed as an asset of the Business owned on the June 30, 2000 Balance Sheet;
(xiii) any advertising or leased promotional materials related to or used in connection with the Tangible Assets or Domestic Business;
(xiv) all rights to the telephone numbers (and related directory listings), internet domain names, and internet sites used in connection with the Domestic Business or the Tangible Assets;
(xv) all manufacturer's warranties to the extent related to the Tangible Assets and all claims under such warranties;
(xvi) all prepaid expenses of the Domestic Business to the extent they are shown as an asset of the Business on the June 30, 2000 Balance Sheet or which have occurred prior to Closing in the ordinary course of business since the June 30, 2000 Balance Sheet;
(xvii) all of Seller's membership interests in Tennessee Blasting, LLC;
(xviii) all promissory notes or notes receivable of the Domestic Business;
(xix) the license agreement between Seller and West Africa Chemicals, except that Seller shall be granted a license to operate the plant and equipment and provide technical support using the explosives technology now transferred to West Africa Chemicals until such time as Seller is no longer an owner in West Africa Chemicals or such plant and equipment, it being agreed that the royalty now paid by each Seller, including without limitation, West Africa Chemicals to Seller shall continue for the benefit of Seller so long as set forth on Schedule 2.1(isuch license continues (the foregoing being referred to as the "Ghana Activities");
(jxx) all sales support, sales collateral, promotional materials, advertising materials the truck owned by Seller and productions, sales and marketing files (whether in print or electronic format) including all past and present promotion copy and promotion copy data bases, web images, web copy, and advertising and direct marketing materials of each Seller used in or relating exclusively by West Coast Explosives subject to the conduct existing lease agreement with respect to such truck as described on Section 2.1(xx) of the BusinessDisclosure Schedule and with payment terms consistent with historical practice;
(kxxi) all rightssecurity deposits, claims (earnest deposits, xxx all other than Post-Closing Claims), credits, causes forms of action security placed with Seller or rights of set-off against third parties relating exclusively Business Subsidiaries related to the Business or affecting any of the Purchased Assets, including, to the extent transferable, claims pursuant to under any manufacturer's warranties, representations and guarantees made by suppliers, manufactures, contractors and other third parties in connection with products or services purchased by or furnished to either Seller used in or relating exclusively to the conduct of the Business or affecting any of the Purchased Assets;
(l) all of the issued and outstanding membership interests of Hanford LLC and all of the capital stock of FWENC Massachusetts and FWENC Ohio;
(m) all prepaid items and advance payments including, without limitation, credits, charges and prepaid expenses of each Seller used in or relating exclusively to the conduct of the Business and all loans and other advances owing by each Transferred Employee to either Seller, but excluding any cash, cash equivalents and other short term investments of the Sellers and their Subsidiaries;
(n) all cash security deposits and xxxxxxx deposits placed with each Seller and with each of its Subsidiaries for the performance of an Assumed Contract a contract or agreement which otherwise constitute a portion of the Purchased AssetsTangible Assets to the extent they are shown as an asset of the Business on the June 30, 2000 Balance Sheet or which have occurred prior to Closing in the ordinary course of business since the June 30, 2000 Balance Sheet;
(oxxii) to the extent available, all lists of present customers of goodwill in or arising from the Tangible Assets and the Domestic Business, all accounts receivable and notes receivable together with any unpaid interest or fees accrued thereon, or other amounts due with respect thereto of each Seller and any security or collateral therefore including recoverable advances and deposits; and
(pxxiii) all other assets and properties of Seller which are used primarily in connection with the Domestic Business. To the extent any tangible assets of the Domestic Business (other than Retained Assets), within the descriptions of subsections (i) - (xxiii) above are owned, managed or leased by any Subsidiary of Seller including Green Mountain Explosives, Inc.(excluding Seller's Purchased Subsidiaries), (i) such items are included within the term "Assets," (ii) such Subsidiary is deemed to be included within the term "Seller" and (iii) Seller shall cause each such Subsidiary, at the Closing, to convey such Assets to Purchaser's Subsidiary, or to Seller for conveyance to Purchaser's Subsidiary, in accordance with the provisions hereof.
(b) On the terms and subject to the conditions set forth in this Agreement, at the Closing Seller shall sell, convey, assign, transfer and deliver to Parent or Purchaser all the shares or interests it owns in Seller's Foreign Subsidiaries, free and clear of all Encumbrances and Parent or Purchaser shall purchase, acquire and accept from Seller, free and clear of any Encumbrances, all of Seller's right, title and interest in and to the shares of Seller's Foreign Subsidiaries. Nothing in this Agreement shall prevent Parent or Purchaser, at their sole discretion, from transferring Seller's Foreign Subsidiaries acquired pursuant to this Section 2.1(b) to any of Purchaser's wholly owned Subsidiaries, but Seller makes no representation as a going concernto Purchaser's right to do so and any such transfer shall be subject to the terms of agreements governing such Seller's Foreign Subsidiaries. To the extent any shares or interests Seller owns in Seller's Foreign Subsidiaries above are owned, by any Subsidiary of Seller, (i) such Subsidiary is deemed to be included within the term "Seller" and (ii) Seller shall cause each such Subsidiary, at the Closing, to convey such shares or interests to Parent or Purchaser, or to Seller for conveyance to Parent or Purchaser, in accordance with the provisions hereof.
(c) On the terms and subject to the conditions set forth in this Agreement, at the Closing, Seller shall sell, convey, assign, transfer and deliver to Parent or an Affiliate of Parent, and Parent or an Affiliate of Parent shall purchase, acquire and accept from Seller, free and clear of any Encumbrances except for Encumbrances created by the licensing of Intellectual Property to Seller's Foreign Subsidiaries, all of Seller's right, title and interest in and to the Intellectual Property of the Domestic Business other than the intellectual property and intangible assets of Tennessee Blasting, LLC, including goodwillall the intangible assets, properties and rights of the Domestic Business wherever located, and all of the intangible assets of Seller used in the operations of the Domestic Business, wherever located, as those assets exist on Closing, other than the Retained Assets, as that term is defined in Section 2.2 (collectively, the "Intangible Assets" and together, with the "Tangible Assets" the "Assets"). To the extent any Intangible Assets are owned, managed or leased by any Subsidiary of Seller other than Tennessee Blasting, LLC, (i) such items are included within the term "Intangible Assets," (ii) such Subsidiary is deemed to be included within the term "Seller" and (iii) Seller shall cause each such Subsidiary, at the Closing, to convey such Assets to Parent or an Affiliate of Parent, or to Seller for conveyance to Parent or an Affiliate of Parent, in accordance with the provisions hereof.
Appears in 1 contract
Samples: Asset Purchase Agreement (Mining Services International Corp/)
Sale and Transfer of Assets. On the terms and subject The Seller hereby agrees to the conditions set forth in this Agreementsell, at the Closing, the Sellers shall selltransfer, convey, assign, transfer assign and deliver to the Purchaser, and the Purchaser hereby agrees to purchase and Purchaser shall purchase, acquire and accept from the Sellers free and clear take possession of any Liens, other than Permitted Liens, all of the Sellers' right, title and interest at the Closing in and to all of the following personal, tangible, intangible and other properties, assets rights and rights assets, used in the operation of every kind and description, whether accrued, contingent or otherwise, exclusively otherwise related to or exclusively used or held for use in connection with the Business (other than Business, and specifically excluding the Excluded Assets (the “Assets), including all assets (other than Excluded Assets) that may have been acquired by the Sellers for use exclusively in connection with the Business between the date hereof and the Closing Date (which shall be collectively referred to herein as the "Purchased Assets"), except for any such assets which may be disposed of, or sold or consumed prior to the Closing Date in the ordinary course of business. The Purchased Assets shall include, without limitation, all of the Sellers' right, title and interest at the Closing in and to all the following (except to the extent they constitute Excluded Assets”):
(a) all Intellectual Property owned or licensed by each Seller Equipment, Fixtures and Furniture used in or relating exclusively to the conduct of the Business as set forth on Schedule 2.1(a)or otherwise related to the Business;
(b) all Contracts (other than Excluded Contracts) used in or relating exclusively to the conduct of the Business as set forth on Schedule 2.1(b) to which each Seller is a party (collectively, the "Assumed Contracts")Intellectual Property;
(c) all rights of each Seller in and to the real property leases Computer Software used in the operation of or relating exclusively to the conduct of otherwise in connection with the Business, together with all fixtures and other improvements thereon ("Leases"), including the Leases as set forth on Schedule 2.1(c);
(d) all accounts receivable, trade receivables Books and other amounts owing from customers and clients Records used in the operation of each Selleror otherwise in connection with the Business;
(e) all bookstelephone numbers, records, customer lists, vendor lists, supplier lists, cost domain names and pricing information, business plans, quality control records and manuals, blueprints, research and development files, email addresses used in the operation of or relating exclusively to the conduct of otherwise in connection with the Business;
(f) all personal computers, computer hardware Pipeline Loans and software of each Seller used in or relating exclusively to the conduct of the Businessitems related thereto;
(g) all inventory used credits, prepaid expenses (excluding Tax refunds), advance payments and deposits; including, without limitation, customer deposits and customer advances in or relating exclusively to the conduct of connection with the Business, including without limitationother than credits, goodsprepaid expenses (excluding Tax refunds), goods-in-transitadvance payments and deposits related to the real property lease for each of the branch offices located at West 100 Xxxxxxx Xxxx, suppliesXxxxxxx, containersXxx Xxxxxx and 3000 Xxxxxxxxxx Xxxxxxxxx, packaging materialsXxxxxxx, raw materials, work-in-progress, finished goals, samples and other consumables of each SellerXxxxxxx;
(h) all Permits rights in and to any restrictive covenants and other obligations of each present and former employees, independent contractors, consultants, suppliers and customers to Seller used in or relating exclusively related to the conduct of Business in connection with the Business set forth on Schedule 2.1(h)Business, but only to the extent assignable;
(i) all tangible leases of real and personal propertyproperty which are used currently and as of the Closing in providing retail mortgage loan origination services, including all machinery, vehicles, tools, equipment, furnishings, office equipment, communications equipment, storage tanks, fixtures, furniture, spare and replacement parts, fuel and other tangible property used in or relating exclusively to the conduct of the Business owned or leased by each Seller, including without limitation, as set forth on Schedule 2.1(i)Leases;
(j) all sales support, sales collateral, promotional materials, advertising materials contracts and productions, sales and marketing files (whether in print or electronic format) including all past and present promotion copy and promotion copy data bases, web images, web copy, and advertising and direct marketing materials of each Seller used in or agreements relating exclusively to the conduct operation of or otherwise in connection with the Business, including the Contracts;
(k) all rightsother intangible assets of the Seller used in or otherwise connected to the Business including, without limitation, goodwill and going concern value; and
(l) all claims and rights against third parties related to items (other than Post-Closing Claimsa)-(j) above, including, without limitation, insurance claims, setoffs, refunds (excluding prepaid Taxes), credits, causes of action or and rights of set-off against third parties relating exclusively to the Business or affecting any of the Purchased Assetsrecovery, including, but in each case only to the extent transferable, claims pursuant to under any manufacturer's warranties, representations and guarantees made by suppliers, manufactures, contractors and other third parties in connection with products or services purchased by or furnished to either Seller used in or relating exclusively to arising after the conduct of the Business or affecting any of the Purchased Assets;
(l) all of the issued and outstanding membership interests of Hanford LLC and all of the capital stock of FWENC Massachusetts and FWENC Ohio;
(m) all prepaid items and advance payments including, without limitation, credits, charges and prepaid expenses of each Seller used in or relating exclusively to the conduct of the Business and all loans and other advances owing by each Transferred Employee to either Seller, but excluding any cash, cash equivalents and other short term investments of the Sellers and their Subsidiaries;
(n) all cash security deposits and xxxxxxx deposits placed with each Seller and with each of its Subsidiaries for the performance of an Assumed Contract or agreement which otherwise constitute a portion of the Purchased Assets;
(o) to the extent available, all lists of present customers of the Business, all accounts receivable and notes receivable together with any unpaid interest or fees accrued thereon, or other amounts due with respect thereto of each Seller and any security or collateral therefore including recoverable advances and deposits; and
(p) the Business as a going concern, including goodwillClosing.
Appears in 1 contract
Sale and Transfer of Assets. On At closing of the terms and subject to the conditions set forth in this Agreement, at the transaction described herein ("Closing"), the Sellers shall sell, convey, assign, transfer and deliver to Purchaser and Purchaser shall purchaseBuyer, acquire and accept from the Sellers free and clear of any Lienslien, other than encumbrance, interest, reservation, restriction, mortgage or security interest of any nature whatsoever, except Permitted LiensEncumbrances (as defined in Section 1.10 below), all the assets of the Sellers' right, title and interest at the Closing in and to all of the properties, assets and rights of every kind and description, whether accrued, contingent or otherwise, exclusively related to or exclusively Sellers described below used or held for use in connection with the Business operation of the Station (other than the except for "Excluded Assets)" as described in Section 1.9 below) (collectively, including all assets the "Acquired Assets"):
1.1. All licenses, permits and authorizations (other than Excluded Assets"Licenses") that may have been acquired issued by the Sellers Commission for use exclusively the operation of or used in connection with the Business operation of the Station, all of which are listed on Schedule A attached hereto, and all applications therefor, together with any renewals, extensions or modifications thereof and additions thereto;
1.2. All of the Sellers' owned or leased real property interests relating to the operation of the Station including that described in Schedule B attached hereto but excluding the owned and leased properties set forth in Schedule B under the heading "Excluded Properties," if any ("Real Property");
1.3. All tangible personal property and equipment owned by the Sellers used or held for use in the operation of the Station including but not limited to the property and equipment listed on Schedule C attached hereto, and any replacements therefor or improvements thereof acquired or constructed prior to Closing ("Personal Property");
1.4. Subject to Section 2.6 of this Agreement, all of the Sellers' rights and benefits under the business agreements, leases and contracts listed on Schedule D attached hereto, including any renewals, extensions, amendments or modifications thereof, and any additional agreements, leases and contracts made or entered into by the Sellers in the ordinary course of business between the date hereof of such Schedule and the Closing Date approved in writing by Buyer or otherwise permitted hereunder ("Leases and Agreements");
1.5. All other licenses, permits or authorizations issued by any government or regulatory agency other than the FCC, which shall be collectively are used in connection with the operation of the Station, all of which are listed on Schedule A ("Permits") and pending applications therefor;
1.6. All right, title and interest of the Sellers in and to the use of the call letters for the Station (referred to herein as the "Purchased AssetsCall Letters"), except for any such assets which may be disposed of, or sold or consumed prior to the Closing Date extent they can be conveyed; together with all common law property rights, goodwill, copyrights, trademarks, service marks, trade names and other similar rights used in connection with the ordinary course operation of businessthe Station, including all accretions thereto, listed on Schedule E attached hereto ("General Intangibles");
1.7. The Purchased Assets shall include, without limitation, all All of the Sellers' rightmagnetic media, title electronic data processing files, systems and interest at computer programs, logs, public files, records required by the Closing in and to all the following (except to the extent they constitute Excluded Assets):
(a) all Intellectual Property owned or licensed by each Seller and used in or relating exclusively to the conduct of the Business as set forth on Schedule 2.1(a);
(b) all Contracts (other than Excluded Contracts) used in or relating exclusively to the conduct of the Business as set forth on Schedule 2.1(b) to which each Seller is a party (collectively, the "Assumed Contracts");
(c) all rights of each Seller in and to the real property leases used in or relating exclusively to the conduct of the Business, together with all fixtures and other improvements thereon ("Leases"), including the Leases as set forth on Schedule 2.1(c);
(d) all accounts receivable, trade receivables and other amounts owing from customers and clients of each Seller;
(e) all books, records, customer listsFCC, vendor lists, supplier lists, cost and pricing information, business plans, quality control records and manuals, blueprints, research and development files, used in or relating exclusively to the conduct of the Business;
(f) all personal computers, computer hardware and software of each Seller used in or relating exclusively to the conduct of the Business;
(g) all inventory used in or relating exclusively to the conduct of the Business, including without limitation, goods, goods-in-transitcontracts, supplies, containers, packaging materials, raw materials, work-in-progress, finished goals, samples and other consumables of each Seller;
(h) all Permits of each Seller maintenance records or similar business records relating to or used in or relating exclusively to connection with the conduct operation of the Business set forth on Schedule 2.1(h);
Station, but not including records pertaining to corporate affairs (iincluding tax records) and original journals, provided copies are supplied to Buyer. The Sellers shall have reasonable access to all tangible personal property, including all machinery, vehicles, tools, equipment, furnishings, office equipment, communications equipment, storage tanks, fixtures, furniture, spare and replacement parts, fuel and other tangible property used such records which might be in or relating exclusively to the conduct possession of Buyer for a period of two (2) years following the Business owned or leased by each Seller, including without limitation, as set forth on Schedule 2.1(i);
(j) all sales support, sales collateral, promotional materials, advertising materials and productions, sales and marketing files (whether in print or electronic format) including all past and present promotion copy and promotion copy data bases, web images, web copyClosing, and advertising shall, at its own expense, have the right to make copies thereof; and
1.8. All rights and direct marketing materials claims of each Seller used in Sellers whether mature, contingent or relating exclusively to the conduct of the Business;
(k) all rightsotherwise, claims (other than Post-Closing Claims), credits, causes of action or rights of set-off against third parties relating exclusively to the Business or affecting any of the Purchased Acquired Assets, includingwhether in tort, to the extent transferablecontract, claims or otherwise, under or pursuant to under any manufacturer's all warranties, representations and guarantees made by suppliersmanufacturers, manufactures, contractors and other third parties in connection with products suppliers or services purchased by or furnished to either Seller used in or relating exclusively to the conduct of the Business or affecting any of the Purchased Assets;
(l) all of the issued and outstanding membership interests of Hanford LLC and all of the capital stock of FWENC Massachusetts and FWENC Ohio;
(m) all prepaid items and advance payments including, without limitation, credits, charges and prepaid expenses of each Seller used in or relating exclusively to the conduct of the Business and all loans and other advances owing by each Transferred Employee to either Seller, but excluding any cash, cash equivalents and other short term investments of the Sellers and their Subsidiaries;
(n) all cash security deposits and xxxxxxx deposits placed with each Seller and with each of its Subsidiaries for the performance of an Assumed Contract or agreement which otherwise constitute a portion of the Purchased Assets;
(o) to the extent available, all lists of present customers of the Business, all accounts receivable and notes receivable together with any unpaid interest or fees accrued thereon, or other amounts due with respect thereto of each Seller and any security or collateral therefore including recoverable advances and deposits; and
(p) the Business as a going concern, including goodwillvendors.
Appears in 1 contract
Samples: Asset Purchase Agreement (Childrens Broadcasting Corp)
Sale and Transfer of Assets. On At closing of the terms and subject to the conditions set forth in this Agreement, at the transaction described herein ("Closing"), the Sellers shall sell, convey, assign, transfer and deliver to Purchaser and Purchaser shall purchaseBuyer, acquire and accept from the Sellers free and clear of any Lienslien, other than Permitted Liensencumbrance, interest, reservation, restriction, mortgage or security interest of any nature whatsoever, except as expressly provided herein, all the material assets of the Sellers' right, title and interest at the Closing in and to all of the properties, assets and rights of every kind and description, whether accrued, contingent or otherwise, exclusively related to or exclusively Sellers described below used or held for use in connection with the Business operation of the Stations (other than collectively, the Excluded "Acquired Assets)"):
1.1. All licenses, including all assets permits and authorizations (other than Excluded Assets"Licenses") that may have been acquired issued by the Sellers Commission for use exclusively the operation of or used in connection with the Business operation of the Stations, all of which are listed on SCHEDULE A attached hereto;
1.2. All of the Sellers' real property interests relating to the operation of the Stations including that described in SCHEDULE B attached hereto ("Real Property");
1.3. All tangible personal property owned by the Sellers used or held for use in the operation of the Stations listed on SCHEDULE C attached hereto, and any replacements therefor or improvements thereof acquired or constructed prior to Closing ("Personal Property");
1.4. All of the Sellers' rights and benefits under the business agreements, leases and contracts listed on SCHEDULE D attached hereto, including any renewals, extensions, amendments or modifications thereof, and any additional agreements, leases and contracts made or entered into by the Sellers in the ordinary course of business between the date hereof of such Schedule and the Closing Date approved in writing by Buyer or otherwise permitted hereunder ("Leases and Agreements");
1.5. All other licenses, permits or authorizations issued by any government or regulatory agency other than the FCC, which shall be collectively are used in connection with the operation of the Stations, all of which are listed on Schedule A ("Permits");
1.6. All right, title and interest of the Sellers in and to the use of the call letters for the Stations (referred to herein as the "Purchased AssetsCall Letters"), except for any such assets which may be disposed of, or sold or consumed prior to the Closing Date in the ordinary course of business. The Purchased Assets shall include, without limitation, all of the Sellers' right, title and interest at the Closing in and to all the following (except to the extent they constitute Excluded Assets):
(a) can be conveyed; together with all Intellectual Property owned or licensed by each Seller common law property rights, goodwill, copyrights, trademarks, service marks, trade names and other similar rights used in or relating exclusively to connection with the conduct operation of the Business as set forth Stations, including all accretions thereto, listed on Schedule 2.1(a);
SCHEDULE E attached hereto (b) all Contracts (other than Excluded Contracts) used in or relating exclusively to the conduct of the Business as set forth on Schedule 2.1(b) to which each Seller is a party (collectively, the "Assumed ContractsGeneral Intangibles");
(c) all rights 1.7. All of each Seller in the Subsidiaries' magnetic media, electronic data processing files, systems and computer programs, logs, public files, records required by the FCC, vendor contracts, supplies, maintenance records or similar business records relating to the real property leases or used in or relating exclusively to connection with the conduct operation of the BusinessStations, together with but not including records pertaining to corporate affairs (including tax records) and original journals, provided copies are supplied to Buyer. The Sellers shall have reasonable access to all fixtures such records which might be in the possession of Buyer for a period of two (2) years following the Closing, and other improvements thereon shall, at its own expense, have the right to make copies thereof; and
1.8. Subject to closing of the contemplated acquisition of the assets and licenses of radio station KMUS(AM), Muskogee, Oklahoma pursuant to that purchase agreement between CBC and Oklahoma Sports Properties, Inc., dated December 31, 1996 (the "LeasesKMUS Purchase Agreement"), including the Leases as set forth which Purchase Agreement was subsequently assigned to CRT, which is listed on Schedule 2.1(c);
(d) all accounts receivableD attached hereto among the Agreements to be assigned to and assumed by Buyer, trade receivables and other amounts owing from customers and clients of each Seller;
(e) all books, records, customer lists, vendor lists, supplier lists, cost and pricing information, business plans, quality control records and manuals, blueprints, research and development files, used in or relating exclusively to the conduct of assets acquired by CRT shall be among the Business;
(f) all personal computers, computer hardware and software of each Seller used in or relating exclusively to the conduct of the Business;
(g) all inventory used in or relating exclusively to the conduct of the Business, including without limitation, goods, goods-in-transit, supplies, containers, packaging materials, raw materials, work-in-progress, finished goals, samples and other consumables of each Seller;
(h) all Permits of each Seller used in or relating exclusively to the conduct of the Business set forth on Schedule 2.1(h);
(i) all tangible personal property, including all machinery, vehicles, tools, equipment, furnishings, office equipment, communications equipment, storage tanks, fixtures, furniture, spare and replacement parts, fuel and other tangible property used in or relating exclusively to the conduct of the Business owned or leased by each Seller, including without limitation, as set forth on Schedule 2.1(i);
(j) all sales support, sales collateral, promotional materials, advertising materials and productions, sales and marketing files (whether in print or electronic format) including all past and present promotion copy and promotion copy data bases, web images, web copyAcquired Assets, and advertising and direct marketing materials of each Seller used in or relating exclusively to the conduct of the Business;
(k) all rights, claims (other than Post-Closing Claims), credits, causes of action or rights of set-off against third parties relating exclusively to the Business or affecting any of the Purchased Assets, including, to the extent transferable, claims pursuant to under any manufacturer's warranties, representations and guarantees made by suppliers, manufactures, contractors and other third parties in connection with products or services purchased by or furnished to either Seller used in or relating exclusively to the conduct of the Business or affecting any of the Purchased Assets;
(l) all of the issued and outstanding membership interests of Hanford LLC and all of the capital stock of FWENC Massachusetts and FWENC Ohio;
(m) all prepaid items and advance payments including, without limitation, credits, charges and prepaid expenses of each Seller used in or relating exclusively to the conduct of the Business and all loans and other advances owing by each Transferred Employee to either Seller, but excluding any cash, cash equivalents and other short term investments of the Sellers and their Subsidiaries;
(n) all cash security deposits and xxxxxxx deposits placed with each Seller and with each of its Subsidiaries for the performance of an Assumed Contract or agreement which otherwise constitute a portion of the Purchased Assets;
(o) to the extent available, all lists of present customers of the Business, all accounts receivable and notes receivable together with any unpaid interest or fees accrued thereon, or other amounts due with respect thereto of each Seller and any security or collateral therefore including recoverable advances and deposits; and
(p) the Business as a going concern, including goodwillSchedules hereto shall be revised accordingly.
Appears in 1 contract
Samples: Asset Purchase Agreement (Childrens Broadcasting Corp)
Sale and Transfer of Assets. On 1.1 Assets to be Sold ----------------- Subject to the terms and subject to the conditions set forth in this Agreement, at the Closing, the Sellers shall Seller agrees to sell, convey, assigntransfer, transfer assign and deliver to Purchaser Purchaser, and Purchaser shall purchase, acquire and accept agrees to purchase from the Sellers free and clear of any Liens, other than Permitted LiensSeller, all of the Sellers' Seller's right, title and interest at the Closing in and to all the following assets of the properties, assets and rights of every kind and description, whether accrued, contingent or otherwise, exclusively related to or exclusively used or held for use in connection with the Business Seller (other than the Excluded Assets), including all assets (other than Excluded Assets) that may have been acquired by the Sellers for use exclusively in connection with the Business between the date hereof and the Closing Date (which shall be collectively referred to herein as the "Purchased Assets")) excluding accounts receivable, except unbilled call records, cash, bank accounts, marketable securities, corporate records, tax refunds and claims of Seller against others for any such assets which may be disposed of, or sold or consumed prior to the Closing Date in the ordinary course of business. The Purchased Assets shall include, without limitation, all of the Sellers' right, title and interest at the Closing in and to all the following (except to the extent they constitute Excluded Assets):damages:
(a) the "Customer Related Assets," comprised of (1) Seller's international operating division which markets under the brand names "International Plus" and "011 Communications" (the "Business") and all Intellectual Property owned residential (as defined by the applicable local exchange carrier or licensed by each the competitive local exchange carrier) international end user long distance telecommunications customer accounts thereof (but specifically excluding business customer accounts) which are listed in an electronic format satisfactory to Purchaser (which electronic format shall include all present and former customer accounts, whether currently active or inactive, in existence as of the Closing Date) (the "Customer Accounts") (the end users of the long distance telecommunications services that generate the Customer Accounts shall be hereinafter referred to as the "Customers"); (2) all of Seller's rights under any agreements, application forms, term contracts, letters of agency and all other contractual instruments between Seller and used in or relating exclusively any and all Customers related to the conduct of the Business as set forth on Schedule 2.1(a);
(b) all Contracts (other than Excluded Contracts) used in or relating exclusively to the conduct of the Business as set forth on Schedule 2.1(b) to which each Seller is a party Customer Accounts (collectively, the "Assumed Customer Contracts"), including but not limited to Seller's right to assert claims and take other rightful actions in respect of breaches, defaults and other violations of such Customer Contracts; (3) all customer and other deposits held or made by Seller related to the Customer Accounts; and (4) all relationships and goodwill related to the Customer Accounts; and
(b) the following assets (the "Non-Customer Assets"):
(i) all of Seller's rights in those contracts set forth on Schedule 1.1(b)(i) (collectively, the "Non-Customer Contracts");
(cii) all rights of each Seller Seller's current toll-free numbers used by and in and to the real property leases used Business for customer service in or relating exclusively to the conduct of the Business, together accordance with all fixtures and other improvements thereon ("Leases"), including the Leases as set forth on Schedule 2.1(cSection 2.3(f);
(diii) all accounts receivable, trade receivables and other amounts owing from customers and clients of each Sellerthe Intellectual Property (as hereinafter defined);
(eiv) all booksleases, recordsleasehold interests, customer listsequipment, vendor listsfurniture, supplier listsfixtures, cost computers, telephones and pricing informationother tangible, business plansintangible, quality control records real and manualspersonal property occupied and/or utilized by and in the Business, blueprints, research and development files, used in or relating exclusively to the conduct of extent set forth in Schedule 1.1(b)(iv) and specifically including any and all lead lists utilized in the Business;
(f) all personal computers, computer hardware and software of each Seller used in or relating exclusively to the conduct of the Business;
(g) all inventory used in or relating exclusively to the conduct of the Business, including without limitation, goods, goods-in-transit, supplies, containers, packaging materials, raw materials, work-in-progress, finished goals, samples and other consumables of each Seller;
(h) all Permits of each Seller used in or relating exclusively to the conduct of the Business set forth on Schedule 2.1(h);
(i) all tangible personal property, including all machinery, vehicles, tools, equipment, furnishings, office equipment, communications equipment, storage tanks, fixtures, furniture, spare and replacement parts, fuel and other tangible property used in or relating exclusively to the conduct of the Business owned or leased by each Seller, including without limitation, as set forth on Schedule 2.1(i);
(j) all sales support, sales collateral, promotional materials, advertising materials and productions, sales and marketing files (whether in print or electronic format) including all past and present promotion copy and promotion copy data bases, web images, web copy, and advertising and direct marketing materials of each Seller used in or relating exclusively to the conduct of the Business;
(k) all rights, claims (other than Post-Closing Claims), credits, causes of action or rights of set-off against third parties relating exclusively to the Business or affecting any of the Purchased Assets, including, to the extent transferable, claims pursuant to under any manufacturer's warranties, representations and guarantees made by suppliers, manufactures, contractors and other third parties in connection with products or services purchased by or furnished to either Seller used in or relating exclusively to the conduct of the Business or affecting any of the Purchased Assets;
(l) all of the issued and outstanding membership interests of Hanford LLC and all of the capital stock of FWENC Massachusetts and FWENC Ohio;
(m) all prepaid items and advance payments including, without limitation, credits, charges and prepaid expenses of each Seller used in or relating exclusively to the conduct of the Business and all loans and other advances owing by each Transferred Employee to either Seller, but excluding any cash, cash equivalents and other short term investments of the Sellers and their Subsidiaries;
(n) all cash security deposits and xxxxxxx deposits placed with each Seller and with each of its Subsidiaries for the performance of an Assumed Contract or agreement which otherwise constitute a portion of the Purchased Assets;
(ov) to the extent availableallowable under applicable laws, all lists of present customers of the Businessrules and regulations, all accounts receivable and notes receivable together with any unpaid interest or fees accrued thereon, or other amounts due with respect thereto of each Seller and any security or collateral therefore including recoverable advances and depositscarrier identification code (CIC) number 210; and
(pvi) the Business local service customer accounts of NOS Communications Inc. which accompany certain of the long distance customer accounts of Seller ("the Local Customers").
1.2 Subject to the terms and conditions set forth in this Agreement, Seller hereby agrees to cause NOS Communications, Inc. ("NOS") to sell, convey, transfer, assign and deliver to Purchaser all of NOS's right, title and interest in and to the Intellectual Property (as a going concernhereinafter defined) and the Local Customers.
1.3 CIC Code -------- Purchaser and Seller agree that in the event CIC number 210 cannot be transferred to Purchaser as contemplated in Section 1.1(b)(v) above, including goodwillthen the Cash Purchase Price (as hereafter defined) shall be reduced by an amount equal to (a) $750,000.00 plus (b) the actual cost up to $200,000 of moving the customers to another CIC number, which aggregate amount shall be deducted from the payment due pursuant to Section 2.3(b)(iii) below.
Appears in 1 contract
Samples: Asset Purchase Agreement (Pacific Gateway Exchange Inc)
