The Acquired Assets. On the terms and subject to the provisions of this Agreement, Seller agrees to sell, transfer and deliver to Buyer on the Closing Date, and Buyer agrees to purchase from Seller for the Purchase Price, all of the assets, properties, rights and interests of Seller of every kind and character and wherever located, except for the Excluded Assets (collectively, the “Acquired Assets”). The Acquired Assets being sold hereunder include, but are not limited to, the following: (a) All cash and cash equivalents; (b) All accounts receivable and other rights to receive a payment of money, whether such rights are matured or unmatured, fixed or contingent; (c) All inventories, including raw materials, work-in-process, finished goods, merchandise, supplies and packaging materials; (d) All machinery, equipment and tools, attachments and parts therefor, leasehold improvements, fixtures, patterns, engineering equipment, plans and drawings, office furniture, computers, supplies and tangible personal property of every kind and nature owned or used by Seller, including without limitation those listed on Schedule 2.1(d) (collectively, the “Fixed Assets”); (e) All automobiles, trucks, forklifts, trailers, and other vehicles owned by Seller (the property being purchased by Buyer pursuant to this clause (e) being collectively the “Vehicles”); (f) All rights of Seller under contracts, agreements, commitments and other arrangements, whether written or oral, including without limitation: open purchase orders for raw materials and supplies; agreements with customers to provide goods or services under which Seller has an unperformed obligation to deliver goods or services; licenses, whether as licensor or licensee; bonds and agreements related to bonds; and leases of real or personal property (each a “Contract” and collectively the “Contracts”), except those which are Excluded Liabilities pursuant to Section 2.4; provided, however, that if the assignment of any such Contract requires the consent of the other parties thereto, this Agreement shall not constitute an agreement to assign the same if an attempted assignment would constitute a breach thereof, but Seller and Buyer shall use their best efforts to obtain the written consent of the other parties to such assignment; (g) All sales and promotional materials, catalogs, advertising and marketing materials; (h) All books, records, documents, files, correspondence, customer lists, procedural manuals and other printed or written materials, whether stored electronically or otherwise, concerning the Business (except those relating to (i) solely Excluded Assets, or (ii) the organization, corporate maintenance and corporate existence of Seller); Buyer shall maintain all business records of Seller transferred hereunder for a period of three (3) years following the Closing Date and shall make such records available to Seller at its reasonable and timely request for any reasonable purpose; provided, however, that Seller shall be responsible for all costs of copying such records; (i) All of Seller’s rights in Intellectual Property, including without limitation the following: (1) patents and registrations and applications therefor, and all reissuances, extensions and continuations thereof; (2) trademarks, service marks, logos, brand names, trade names and registrations and applications therefor; (3) all copyrightable works, copyrights and registrations and applications therefor and all renewals thereof; (4) all mask works and registrations and applications therefor, and all renewals thereof; (5) subject to the approval of licensors or licensees, if required, licenses granted to or by Seller; (6) computer software (including all data, source code and related documentation belonging to or in the possession of Seller); and (7) technical documentation reflecting engineering, maintenance, servicing and production data, design data, plans, specifications, drawings, technology, know-how, trade secrets, confidential business information, research and development, servicing and maintenance processes, customer and supplier lists, pricing and cost information and business and marketing plans and proposals, relating to the Business or to the maintenance of Acquired Assets and all documentary evidence thereof, including without limitation the technical information incorporated in such documentation; to the extent that Intellectual Property is entered in pertinent patent and trademark registers or offices, Seller shall, to the full extent permitted by law, deliver to Buyer all related files in Seller’s direct and indirect possession and all documents, certificates and declarations necessary to enable Buyer to register such Intellectual Property in its name; (j) All rights and interest in the joint venture with Brickell Asset Management; (k) The right to use the name “Worthington Aviation” and any derivations thereof; provided, however, that nothing in this Agreement or otherwise shall prevent Worthington Tractor Parts, Inc. (a/k/a Xxxxxxxxxxx Xx Parts) from continuing to use the name “Worthington” and the marks, logos, trademarks or symbols used by it. (l) All other current assets, prepaid expenses, deposits, claims, refunds, causes of action, rights of recovery and warranty rights; (m) All rights, title and interest of Seller in and to all warranties and guaranties given to, assigned to or benefitting Seller regarding the acquisition, construction, design, use, operation, management or maintenance of any of the other Acquired Assets; and (n) All rights of Seller under each Lease and to a leasehold interest in the Leased Real Estate.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Air T Inc)
The Acquired Assets. On the terms and subject to the provisions of this AgreementThe Acquired Assets shall include, Seller agrees to sell, transfer and deliver to Buyer on the Closing Date, and Buyer agrees to purchase from Seller for the Purchase Pricewithout limitation, all of the assets, properties, rights and interests of Seller of every kind and character and wherever located, except for the Excluded Assets (collectively, the “Acquired Assets”). The Acquired Assets being sold hereunder include, but are not limited to, the following:
(a) All cash assets used exclusively by Sellers in the operation of the Business, including, but not limited to:
(i) all accounts receivable of the Business;
(ii) all prepaid expenses of the Business;
(iii) all Customer Agreements, Employment Contracts, agent agreements, and cash equivalentsSupplier Contracts of the Business;
(iv) all equipment and equipment leases of the Business; and
(v) all inventory, maintenance agreements, the Business Real Property Leases, personal property leases, miscellaneous service agreements, and any and all other similar assets of the Business.
(b) All accounts receivable and other rights to receive a payment The Acquired Assets will specifically include all of moneythe following scheduled items, whether as such rights are matured or unmaturedSchedules may be updated by Sellers after the Effective Date, fixed or contingent;of the Business.
(ci) All inventoriesitems of tangible personal property, including raw materialsincluding, work-in-process, finished goods, merchandise, supplies and packaging materials;
(d) All machinery, equipment and tools, attachments and parts therefor, leasehold improvements, fixtures, patterns, engineering equipment, plans and drawingsbut not limited to, office furniture, computersoffice equipment, supplies office supplies, and other tangible personal property related to the operation and administration of every kind the Business as-is, where is and nature owned or used by Seller, including without limitation those listed as set forth on Schedule 2.1(d2.2(b)(i).
(ii) All items of switching equipment, networking equipment, and customer premises equipment as-is, where is and as set forth on Schedule 2.2(b)(ii).
(iii) All items of computer equipment, related peripherals, and software licenses (to the extent assignable) related thereto as-is, where is and as set forth on Schedule 2.2(b)(iii).
(iv) All rights (to the extent assignable, but subject to Buyers’ rights under Section 6.15) under any Contract (including, but not limited to, Business Real Property Leases, Customer Agreements, Supplier Contracts, agent agreements, Maintenance Contracts and Employment Contracts) set forth on Schedule 2.2(b)(iv) (collectively, the “Fixed Assets”);
(e) All automobiles, trucks, forklifts, trailers, and other vehicles owned by Seller (the property being purchased by Buyer pursuant to this clause (e) being collectively the “Vehicles”);
(f) All rights of Seller under contracts, agreements, commitments and other arrangements, whether written or oral, including without limitation: open purchase orders for raw materials and supplies; agreements with customers to provide goods or services under which Seller has an unperformed obligation to deliver goods or services; licenses, whether as licensor or licensee; bonds and agreements related to bonds; and leases of real or personal property (each a “Contract” and collectively the “Assumed Contracts”), except those which are Excluded Liabilities pursuant as may be updated to Section 2.4; providedand including the Closing Date.
(v) All licenses, howeverpermits, that if the assignment registrations, certificates of occupancy, certifications, approvals and authorizations of any such Contract requires the consent nature (collectively, “Licenses and Permits”), subject to legal rights of the other parties thereto, this Agreement shall not constitute an agreement to assign the same if an attempted assignment would constitute a breach thereof, but Seller transfer for all of said Licenses and Buyer shall use their best efforts to obtain the written consent of the other parties to such assignment;Permits listed on Schedule 2.2(b)(v).
(gvi) All sales Intellectual Property Rights, whether registered or unregistered, and promotional materialsany applications therefor exclusively utilized by the Business or the products and services offered by the Business, catalogs, advertising and marketing materials;as set forth on Schedule 2.2(b)(vi).
(hvii) All books, records, documentsBusiness Records.
(viii) All customer information, files, correspondencerecords and data, including customer records, customer listslists and prospect lists set forth on Schedule 2.2(b)(viii), procedural manuals as may be updated to and other printed or written materialsincluding the Closing Date, whether stored electronically or otherwiseas well as all customer Contracts associated with the foregoing (“Customer Agreements”), concerning as set forth on Schedule 2.2(b)(viii), as may be updated to and including the Business Closing Date.
(except those relating ix) The supplier lists and Contracts with suppliers set forth on Schedule 2.2(b)(ix) (“Supplier Contracts”), as may be updated to and including the Closing Date.
(ix) solely Excluded Assets, or (ii) the organization, corporate The maintenance and corporate existence of Sellerservice Contracts (“Maintenance Contracts”) as are assignable, set forth in Schedule 2.2(b)(x); Buyer shall maintain all business records of Seller transferred hereunder for a period of three (3) years following , as may be updated to and including the Closing Date and shall make such records available to Seller at its reasonable and timely request for any reasonable purpose; provided, however, that Seller shall be responsible for all costs of copying such records;Date.
(ixi) All of Seller’s rights in Intellectual PropertyThe URLs and telephone numbers set forth on Schedule 2.2(b)(xi).
(xii) Those employment Contracts (“Employment Contracts”) set forth on Schedule 2.2(b)(xii), including without limitation the following: (1) patents and registrations and applications therefor, and all reissuances, extensions and continuations thereof; (2) trademarks, service marks, logos, brand names, trade names and registrations and applications therefor; (3) all copyrightable works, copyrights and registrations and applications therefor and all renewals thereof; (4) all mask works and registrations and applications therefor, and all renewals thereof; (5) subject to the approval of licensors or licensees, if required, licenses granted to or by Seller; (6) computer software (including all data, source code and related documentation belonging to or in the possession of Seller); and (7) technical documentation reflecting engineering, maintenance, servicing and production data, design data, plans, specifications, drawings, technology, know-how, trade secrets, confidential business information, research and development, servicing and maintenance processes, customer and supplier lists, pricing and cost information and business and marketing plans and proposals, relating to the Business or to the maintenance of Acquired Assets and all documentary evidence thereof, including without limitation the technical information incorporated in such documentation; to the extent that Intellectual Property is entered in pertinent patent and trademark registers or offices, Seller shall, to Buyers have not negotiated superseding employment contracts relieving Sellers of further obligation under the full extent permitted by law, deliver to Buyer all related files in Seller’s direct and indirect possession and all documents, certificates and declarations necessary to enable Buyer to register such Intellectual Property in its name;
(j) All rights and interest in the joint venture with Brickell Asset Management;
(k) The right to use the name “Worthington Aviation” and any derivations thereof; provided, however, that nothing in this Agreement or otherwise shall prevent Worthington Tractor Parts, Inc. (a/k/a Xxxxxxxxxxx Xx Parts) from continuing to use the name “Worthington” and the marks, logos, trademarks or symbols used by itEmployment Contracts.
(lxiii) All other current assets, prepaid expenses, deposits, claims, refunds, causes assets of action, rights of recovery and warranty rights;
(m) All rights, title and interest of Seller in and to all warranties and guaranties given to, assigned to or benefitting Seller regarding the acquisition, construction, design, use, operation, management or maintenance of any of the other Acquired Assets; and
(n) All rights of Seller under each Lease and to a leasehold interest Sellers used exclusively in the Leased Real EstateBusiness.
Appears in 1 contract
Samples: Asset Purchase Agreement (Fusion Telecommunications International Inc)
The Acquired Assets. On the terms and subject to the provisions of this Agreement, Seller agrees to sell, transfer and deliver to Buyer on the Closing Date, and Buyer agrees to purchase from Seller for the Purchase Price, all of the assets, properties, rights and interests of the Seller and all other property used or held for use in connection with the Business of every kind and character and wherever located, except for but expressly not including the Excluded Assets (collectively, the “Acquired Assets”). The Acquired Assets being sold hereunder include, but are not limited to, the following:
(a) All cash and cash equivalents;
(b) All accounts receivable and other rights to receive a payment of money, whether such rights are matured or unmatured, fixed or contingentcontingent (the “Accounts Receivable”);
(cb) All inventories, including raw materials, work-in-process, finished goods, merchandise, supplies and packaging materialsmaterials listed on Schedule 2.1(b) (collectively, the “Inventory”) as such schedule will be updated pursuant to Section 8.1(h);
(dc) All machinery, equipment and tools, attachments and parts therefor, leasehold improvements, fixtures, patterns, engineering equipment, plans and drawings, office furniture, computers, supplies and tangible personal property of every kind and nature owned or used by Seller, including without limitation those listed on Schedule 2.1(d2.1(c) (collectively, the “Fixed Assets”);
(ed) All automobiles, trucks, forklifts, trailers, forklifts and other vehicles owned by Seller Seller, including without limitation those listed on Schedule 2.1(d) (the property being purchased by Buyer pursuant to this clause (e) being collectively collectively, the “Vehicles”);
(fe) All rights of Seller under contracts, agreements, commitments and other arrangementsarrangements (specifically including, but not limited to each of the agreements and contracts listed in Sections 4.11 and 4.12 of the Disclosure Schedule), whether written or oral, including without limitation: open unfilled service and maintenance orders, purchase orders for raw materials and supplies; agreements with customers to provide goods or services under which Seller has an unperformed obligation to deliver goods or services; licenses, other unfilled customer orders, licenses (whether as licensor or licensee; bonds and agreements related to bonds; ), insurance policies held in Seller’s name, and leases of real or personal property (each a “Contract” and collectively the “Contracts”)property, except those which are Excluded Liabilities pursuant to Section 2.42.3 (collectively, the “Contracts”); provided, however, that if the assignment of any such Contract requires the consent consent of the other parties thereto, this Agreement shall not constitute an agreement agreement to assign the same if an attempted assignment would constitute constitute a breach thereof, but Seller and Buyer shall use their best commercially reasonable efforts to obtain the written consent of the other parties to such assignment; and failing such consent, Buyer and Seller shall mutually agree on a method by which Seller will continue to execute any such Contract upon the direction and for the benefit of Buyer;
(gf) All sales and promotional materials, catalogs, advertising and marketing materials;
(hg) All books, records, documents, files, correspondence, customer lists, procedural manuals and other printed or written materials, whether stored electronically or otherwise, concerning the Business (except those relating to (i) solely Excluded Assets, or (ii) but expressly excluding the organization, corporate maintenance minute books and corporate existence of Seller); Buyer shall maintain all business stock records of Seller transferred hereunder for a period of three (3) years following the Closing Date and shall make such further excluding all personnel records available to Seller at its reasonable and timely request for any reasonable purpose; provided, however, other records that Seller shall be responsible for all costs of copying such recordsis required by law to retain in its possession;
(ih) All of the Seller’s rights in Intellectual Property, including without limitation the Intellectual Property identified on Schedule 2.1(h) and the following: :
(1) All patents and registrations and applications therefor, and all reissuancesre-issuances, extensions and continuations thereof; ;
(2) All trademarks, service marks, logos, brand names, trade names and registrations and applications therefor; ;
(3) all All copyrightable works, copyrights and registrations and applications therefor and all renewals thereof; ;
(4) all All mask works and registrations and applications therefor, and all renewals thereof; ;
(5) subject Subject to the approval of licensors or licensees, if required, licenses granted to or by Seller; ;
(6) All computer software (including all data, source code and related documentation belonging to to, used by or in the possession of Seller); and ) used by Seller in the Business;
(7) technical All internet domain names and registrations; and
(8) Technical documentation reflecting engineering, maintenance, servicing and production data, design data, plans, specifications, drawings, technology, know-how, trade secrets, confidential business information, research and development, servicing and maintenance processes, customer and supplier lists, pricing and cost information and business and marketing plans and proposals, relating to the Business or to the maintenance of Acquired Assets and all documentary evidence thereof, including without limitation the technical information incorporated in such documentation; to . To the extent that Intellectual Property is entered in pertinent patent and trademark registers or offices, Seller shall, to the full extent permitted by law, deliver to Buyer all related files in Seller’s direct and indirect possession and all documents, certificates and declarations necessary to enable Buyer to register such Intellectual Property in its name;
(i) All other intangible assets of any nature of Seller used in connection with the activities of Seller’s business as a going concern, including without limitation by reason of enumeration, goodwill and all right, title and interest in an to the use of the names “Bytewise Development”, “Bytewise Measurement Systems” and any variation thereof and all proprietary rights associated therewith;
(j) All rights and interest in the joint venture with Brickell Asset Management;
(k) The right to use the name “Worthington Aviation” and any derivations thereof; provided, however, that nothing in this Agreement or otherwise shall prevent Worthington Tractor Parts, Inc. (a/k/a Xxxxxxxxxxx Xx Parts) from continuing to use the name “Worthington” and the marks, logos, trademarks or symbols used by it.
(l) All other current assets, prepaid expenses, deposits, all claims, refunds, causes of action, rights of recovery and warranty rights;
(mk) All rights, title and interest of Seller in and to all warranties and guaranties given to, assigned to or benefitting benefiting Seller regarding the acquisition, construction, design, use, operation, management or maintenance of any of the other Acquired Assets; and;
(nl) All rights of Seller under each Lease and to a A valid leasehold interest in the Leased Real Estate;
(m) All customer prepayments held by Seller and Seller deposits held by third parties including, without limitation those listed on Schedule 2.1(m) (collectively, the “Prepayments and Deposits”);
(n) All Operating Permits;
(o) The life insurance policies owned by Seller or for which Seller is the beneficiary and insuring the life of either Stockholder all as more specifically listed on Schedule 2.1(o); and
(p) All other assets, rights, interests and properties of Seller of every name or nature other than the Excluded Assets.
Appears in 1 contract
The Acquired Assets. On As of the Effective Time, upon the terms and subject to the provisions of this Agreementconditions set forth herein, Seller agrees to will sell, transfer assign, transfer, convey and deliver to Buyer on the Closing DateBuyer, and Buyer agrees to shall purchase from Seller for the Purchase PriceSeller, all of Seller’s rights, title and interests in, to and under all of the assetsfollowing loans, properties, rights contracts and interests other assets, whether now existing or hereafter acquired, free and clear of Seller of every kind and character and wherever located, except for all Encumbrances other than the Excluded Assets Permitted Encumbrances (collectively, the “Acquired Assets”). The Acquired Assets being sold hereunder include, but are not limited to, the following:):
(ai) All all cash on hand (including all ATM cash, xxxxx cash and teller cash), cash held in the vaults and other cash items or cash equivalents, in each case held at the Branches as of the Closing Date;
(bii) All accounts receivable and other rights to receive a payment except for those items that constitute Excluded Tangible Personal Property, all of money, whether such rights are matured or unmatured, fixed or contingent;
(c) All inventories, including raw materials, work-in-process, finished goods, merchandise, supplies and packaging materials;
(d) All machinery, equipment and tools, attachments and parts therefor, leasehold improvements, fixtures, patterns, engineering equipment, plans and drawings, office furniture, computers, supplies and the tangible personal property of every kind Seller located in or at, or affixed to the premises of, the Acquired Branches, including trade fixtures, shelving, furniture, on-premises ATMs, equipment (including all televisions, Bloomberg terminals, cell phones and nature owned or PDAs used by the Retained Employees), security systems, safe deposit boxes (exclusive of contents), vaults, copier paper, all signs (including signs with Seller’s name or logo but excluding all logo boxes and channel letter sets) and sign framing, including without limitation those listed on Schedule 2.1(d) structures, posts and other signage infrastructure, and all non-logo office supplies (collectively, the “Fixed AssetsAcquired Tangible Personal Property”);
(eiii) All automobileslists of borrowers, trucksdepositors and other customers of the Branches to the extent relating to any Acquired Asset or Assumed Liability, forklifts, trailerslists of prospective customers of the Branches, and any other vehicles owned by information (including confidential information) of Seller relating to the Branches that is necessary for Buyer to possess in connection with its administration, ownership and use of any Acquired Asset or Assumed Liability (the property being purchased by Buyer pursuant to this clause (e) being collectively the “VehiclesAcquired Intellectual Property”);
(fiv) All all Acquired Owned Real Property;
(v) all Leases other than the Excluded Leases, if any (the “Acquired Leases”), together with all Leased Real Properties other than the Excluded Leased Real Properties, if any (the “Acquired Leased Real Properties”);
(vi) all Leasehold Improvements in respect of all Leases other than the Excluded Leases (the “Acquired Leasehold Improvements”);
(vii) all (A) Safe Deposit Contracts, and (B) (1) all equipment leases relating to the lease of equipment located at the Acquired Branches and related maintenance agreements, and (2) all other contracts, in each case as to subclause (1) and (2) of this clause (vii) solely to the extent listed on Schedule 2.1(a)(vii)(B) attached hereto other than any such equipment leases and other contracts that Buyer has elected to remove from such Schedule 2.1(a)(vii)(B) by giving written notice of such election to Seller not later than thirty (30) days following the date hereof, in which case such Schedule delivered on the date hereof, as so modified by such election notice, shall be deemed to constitute Schedule 2.1(a)(vii)(B) for all purposes of this Agreement (the leases and contracts listed on Schedule 2.1(a)(vii)(B), collectively, the “Acquired Contracts”);
(viii) all Loans and servicing rights with respect thereto, including (A) all (1) collateral pledged as collateral security therefor, (2) guaranties and other instruments of credit support issued in favor of the Seller as a guaranty or credit support thereof and (3) monies held by Seller in escrow for taxes, insurances, special assessments or other purposes in respect of such Loans, and (B) all related loan documents and instruments and promissory notes, collateral documents, guaranty and other credit support instruments or agreements and other documents evidencing, governing or in respect of such Loans;
(ix) all rights of Seller under contracts, agreements, commitments and other arrangements, whether written or oral, including without limitation: open purchase orders for raw materials and supplies; agreements with customers to provide goods or services under which Seller has an unperformed obligation to deliver goods or services; licenses, whether as licensor or licensee; bonds and agreements related to bonds; and leases of real or personal property (each a “Contract” and collectively the “Contracts”), except those which are Excluded Liabilities pursuant to Section 2.4; provided, however, that if the assignment of any such Contract requires the consent of the other parties thereto, this Agreement shall not constitute an agreement to assign the same if an attempted assignment would constitute a breach thereof, but Seller and Buyer shall use their best efforts to obtain the written consent of the other parties to such assignment;
(g) All sales and promotional materials, catalogs, advertising and marketing materials;
(h) All books, records, documents, files, correspondence, customer lists, procedural manuals and other printed or written materials, whether stored electronically or otherwise, concerning the Business (except those relating to (i) solely Excluded Assets, or (ii) pre-paid expenses associated with the organization, corporate maintenance and corporate existence of Seller); Buyer shall maintain all business records of Seller transferred hereunder for a period of three (3) years following the Closing Date and shall make such records available to Seller at its reasonable and timely request for any reasonable purpose; provided, however, that Seller shall be responsible for all costs of copying such records;
(i) All of Seller’s rights in Intellectual Property, including without limitation the following: (1) patents and registrations and applications therefor, and all reissuances, extensions and continuations thereof; (2) trademarks, service marks, logos, brand names, trade names and registrations and applications therefor; (3) all copyrightable works, copyrights and registrations and applications therefor and all renewals thereof; (4) all mask works and registrations and applications therefor, and all renewals thereof; (5) subject to the approval of licensors or licensees, if required, licenses granted to or by Seller; (6) computer software (including all data, source code and related documentation belonging to or in the possession of Seller); and (7) technical documentation reflecting engineering, maintenance, servicing and production data, design data, plans, specifications, drawings, technology, know-how, trade secrets, confidential business information, research and development, servicing and maintenance processes, customer and supplier lists, pricing and cost information and business and marketing plans and proposals, relating to the Business or to the maintenance of foregoing Acquired Assets and all documentary evidence thereof, including without limitation the technical information incorporated in such documentation; to the extent that Intellectual Property is entered in pertinent patent and trademark registers or offices, Seller shall, to the full extent permitted by law, deliver to Buyer all related files in Seller’s direct and indirect possession and all documents, certificates and declarations necessary to enable Buyer to register such Intellectual Property in its name;
(j) All rights and interest in the joint venture with Brickell Asset Management;
(k) The right to use the name “Worthington Aviation” and any derivations thereof; provided, however, that nothing in this Agreement or otherwise shall prevent Worthington Tractor Parts, Inc. (a/k/a Xxxxxxxxxxx Xx Parts) from continuing to use the name “Worthington” and the marks, logos, trademarks or symbols used by it.
(l) All other current assets, prepaid expenses, deposits, claims, refunds, causes of action, rights of recovery and warranty rights;
(m) All rights, title and interest of Seller in and to all warranties and guaranties given to, assigned to or benefitting Seller regarding the acquisition, construction, design, use, operation, management or maintenance of any of the other Acquired AssetsDeposits, including an appropriately pro-rated portion of any pre-paid FDIC deposit insurance assessment, as contemplated by Section 2.4 hereof; and
(nx) All rights without limiting any other provision contained in this Section 2.1(a), all Books and Records relating to any of Seller under each Lease and to a leasehold interest in the Leased Real Estateforegoing Acquired Assets or any of the Assumed Liabilities.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Firstmerit Corp /Oh/)
The Acquired Assets. On As of the Effective Time, upon the terms and subject to the provisions of this Agreementconditions set forth herein, Seller agrees to will sell, transfer assign, transfer, convey and deliver to Buyer on the Closing DateBuyer, and Buyer agrees to shall purchase from Seller for the Purchase PriceSeller, all of Seller’s rights, title and interests in, to and under all of the assetsfollowing loans, properties, rights contracts and interests other assets, whether now existing or hereafter acquired, free and clear of Seller of every kind and character and wherever located, except for all Encumbrances other than the Excluded Assets Permitted Encumbrances (collectively, the “Acquired Assets”). The Acquired Assets being sold hereunder include, but are not limited to, the following:):
(ai) All all cash on hand (including all ATM cash, pxxxx cash and teller cash), cash held in the vaults and other cash items or cash equivalents, in each case held at the Branches as of the Closing Date;
(bii) All accounts receivable and other rights to receive a payment except for those items that constitute Excluded Tangible Personal Property, all of money, whether such rights are matured or unmatured, fixed or contingent;
(c) All inventories, including raw materials, work-in-process, finished goods, merchandise, supplies and packaging materials;
(d) All machinery, equipment and tools, attachments and parts therefor, leasehold improvements, fixtures, patterns, engineering equipment, plans and drawings, office furniture, computers, supplies and the tangible personal property of every kind Seller located in or at, or affixed to the premises of, the Acquired Branches, including trade fixtures, shelving, furniture, on-premises ATMs, equipment (including all televisions, Bloomberg terminals, cell phones and nature owned or PDAs used by the Retained Employees), security systems, safe deposit boxes (exclusive of contents), vaults, copier paper, all signs (including signs with Seller’s name or logo but excluding all logo boxes and channel letter sets) and sign framing, including without limitation those listed on Schedule 2.1(d) structures, posts and other signage infrastructure, and all non-logo office supplies (collectively, the “Fixed AssetsAcquired Tangible Personal Property”);
(eiii) All automobileslists of borrowers, trucksdepositors and other customers of the Branches to the extent relating to any Acquired Asset or Assumed Liability, forklifts, trailerslists of prospective customers of the Branches, and any other vehicles owned by information (including confidential information) of Seller relating to the Branches that is necessary for Buyer to possess in connection with its administration, ownership and use of any Acquired Asset or Assumed Liability (the property being purchased by Buyer pursuant to this clause (e) being collectively the “VehiclesAcquired Intellectual Property”);
(fiv) All all Acquired Owned Real Property;
(v) all Leases other than the Excluded Leases, if any (the “Acquired Leases”), together with all Leased Real Properties other than the Excluded Leased Real Properties, if any (the “Acquired Leased Real Properties”);
(vi) all Leasehold Improvements in respect of all Leases other than the Excluded Leases (the “Acquired Leasehold Improvements”);
(vii) all (A) Safe Deposit Contracts, and (B) (1) all equipment leases relating to the lease of equipment located at the Acquired Branches and related maintenance agreements, and (2) all other contracts, in each case as to subclause (1) and (2) of this clause (vii) solely to the extent listed on Schedule 2.1(a)(vii)(B) attached hereto other than any such equipment leases and other contracts that Buyer has elected to remove from such Schedule 2.1(a)(vii)(B) by giving written notice of such election to Seller not later than thirty (30) days following the date hereof, in which case such Schedule delivered on the date hereof, as so modified by such election notice, shall be deemed to constitute Schedule 2.1(a)(vii)(B) for all purposes of this Agreement (the leases and contracts listed on Schedule 2.1(a)(vii)(B), collectively, the “Acquired Contracts”);
(viii) all Loans and servicing rights with respect thereto, including (A) all (1) collateral pledged as collateral security therefor, (2) guaranties and other instruments of credit support issued in favor of the Seller as a guaranty or credit support thereof and (3) monies held by Seller in escrow for taxes, insurances, special assessments or other purposes in respect of such Loans, and (B) all related loan documents and instruments and promissory notes, collateral documents, guaranty and other credit support instruments or agreements and other documents evidencing, governing or in respect of such Loans;
(ix) all rights of Seller under contracts, agreements, commitments and other arrangements, whether written or oral, including without limitation: open purchase orders for raw materials and supplies; agreements with customers to provide goods or services under which Seller has an unperformed obligation to deliver goods or services; licenses, whether as licensor or licensee; bonds and agreements related to bonds; and leases of real or personal property (each a “Contract” and collectively the “Contracts”), except those which are Excluded Liabilities pursuant to Section 2.4; provided, however, that if the assignment of any such Contract requires the consent of the other parties thereto, this Agreement shall not constitute an agreement to assign the same if an attempted assignment would constitute a breach thereof, but Seller and Buyer shall use their best efforts to obtain the written consent of the other parties to such assignment;
(g) All sales and promotional materials, catalogs, advertising and marketing materials;
(h) All books, records, documents, files, correspondence, customer lists, procedural manuals and other printed or written materials, whether stored electronically or otherwise, concerning the Business (except those relating to (i) solely Excluded Assets, or (ii) pre-paid expenses associated with the organization, corporate maintenance and corporate existence of Seller); Buyer shall maintain all business records of Seller transferred hereunder for a period of three (3) years following the Closing Date and shall make such records available to Seller at its reasonable and timely request for any reasonable purpose; provided, however, that Seller shall be responsible for all costs of copying such records;
(i) All of Seller’s rights in Intellectual Property, including without limitation the following: (1) patents and registrations and applications therefor, and all reissuances, extensions and continuations thereof; (2) trademarks, service marks, logos, brand names, trade names and registrations and applications therefor; (3) all copyrightable works, copyrights and registrations and applications therefor and all renewals thereof; (4) all mask works and registrations and applications therefor, and all renewals thereof; (5) subject to the approval of licensors or licensees, if required, licenses granted to or by Seller; (6) computer software (including all data, source code and related documentation belonging to or in the possession of Seller); and (7) technical documentation reflecting engineering, maintenance, servicing and production data, design data, plans, specifications, drawings, technology, know-how, trade secrets, confidential business information, research and development, servicing and maintenance processes, customer and supplier lists, pricing and cost information and business and marketing plans and proposals, relating to the Business or to the maintenance of foregoing Acquired Assets and all documentary evidence thereof, including without limitation the technical information incorporated in such documentation; to the extent that Intellectual Property is entered in pertinent patent and trademark registers or offices, Seller shall, to the full extent permitted by law, deliver to Buyer all related files in Seller’s direct and indirect possession and all documents, certificates and declarations necessary to enable Buyer to register such Intellectual Property in its name;
(j) All rights and interest in the joint venture with Brickell Asset Management;
(k) The right to use the name “Worthington Aviation” and any derivations thereof; provided, however, that nothing in this Agreement or otherwise shall prevent Worthington Tractor Parts, Inc. (a/k/a Xxxxxxxxxxx Xx Parts) from continuing to use the name “Worthington” and the marks, logos, trademarks or symbols used by it.
(l) All other current assets, prepaid expenses, deposits, claims, refunds, causes of action, rights of recovery and warranty rights;
(m) All rights, title and interest of Seller in and to all warranties and guaranties given to, assigned to or benefitting Seller regarding the acquisition, construction, design, use, operation, management or maintenance of any of the other Acquired AssetsDeposits, including an appropriately pro-rated portion of any pre-paid FDIC deposit insurance assessment, as contemplated by Section 2.4 hereof; and
(nx) All rights without limiting any other provision contained in this Section 2.1(a), all Books and Records relating to any of Seller under each Lease and to a leasehold interest in the Leased Real Estateforegoing Acquired Assets or any of the Assumed Liabilities.
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Samples: Purchase and Assumption Agreement (First Banks, Inc)
The Acquired Assets. On At the terms closing of the purchase and subject to sale of the provisions Business and the other transactions contemplated by this agreement (the "Closing") and as of this Agreement, Seller agrees to sell, transfer and deliver to Buyer on the Closing Date, the Seller and Harvard, as appropriate, shall sell, transfer, assign, convey and deliver to the Buyer, and the Buyer agrees shall purchase and acquire from the Seller and Harvard, as appropriate, all right, title and interest of the Seller and Harvard, as appropriate, in and to purchase from Seller for the Purchase Price, all of the assetsassets used, properties, rights and interests or held for use in the operation of Seller of every kind and character and wherever located, except for the Business other than the Excluded Assets (collectivelythe "Acquired Assets"), free and clear of all liens, mortgages, security interests, charges, encumbrances, options, rights of first refusal, security interests, easements, reservations, encroachments, covenants, restrictions and other defects in title, leases, subleases, obligations or claims or other third party rights of any kind ("Liens"), other than Permitted Liens. Without limiting the generality of the foregoing, the “Acquired Assets”). The Acquired Assets being sold hereunder include, but are not limited to, shall be comprised of all of the following:
(a) All cash all accounts receivable, notes and cash equivalentsother rights to receive payments from customers, including all accrued accounts receivable representing amounts payable in respect of products and services sold or otherwise provided to customers that have not been invoiced or billed as at the Closing Date, the proceeds of accounts receivable including uncashed checks in payment thereof received by the Seller prior to the Closing Date (excluding receivables from Xxxxxxxxxx X.X., a French corporation, and its Affiliates relating to the joint venture (the "JV") created pursuant to that certain Limited Liability Agreement between the Seller and Xxxxxxxxxx X.X., dated November 27, 1995, subject to confirmation that the accounts receivable of Seller as of the Closing Date do not also include any accruals in respect of such receivables) ("Receivables");
(b) All accounts receivable and other rights to receive a payment all inventories of money, whether such rights are matured or unmatured, fixed or contingent;
(c) All inventories, including raw materials, work-in-processprogress, finished goods, merchandisetooling, molds, purchased parts, operating supplies and packaging materials, factory and maintenance supplies and related inventory items relating to or used in connection with the Business as of the Closing Date ("Inventories");
(c) all (i) Capital Assets, machinery, equipment, automobiles and other vehicles, files, systems, furniture, fixtures, office equipment and leasehold improvements, including, without limitation, information technology and computer assistance design equipment ("Fixed Assets"), used by the Seller or used by Harvard principally in the Business and (ii) Fixed Assets that have been ordered for the Business prior to the Closing Date, whether or not received as at the Closing Date (which Fixed Assets ordered for the Business prior to the date hereof and which have not been received as of the date hereof with a value exceeding $50,000 are specifically identified on Schedule 2.1.1(c));
(d) All machinery, equipment all Proprietary Assets to the extent assignable and tools, attachments and parts therefor, leasehold improvements, fixtures, patterns, engineering equipment, plans and drawings, office furniture, computers, supplies and tangible personal property of every kind and nature owned or used by Seller, including without limitation those listed on Schedule 2.1(d) (collectively, the “Fixed Assets”)all Seller Property;
(e) All automobilesall books, trucksrecords, forkliftsprintouts, trailersdrawings, data, files, notes, notebooks, accounts, invoices, correspondence and other vehicles memoranda (including all personnel records of all employees of the Seller who are offered and accept employment with the Buyer), whether or not confidential, which are owned by the Seller (or primarily used in the property being purchased by Buyer pursuant to this clause (e) being collectively the “Vehicles”)Business;
(f) All the Supplies;
(g) all rights and benefits of the Seller and Harvard, as appropriate, under contracts(i) all the Material Contracts and (ii) all other leases, agreements, commitments and other arrangements, whether contracts, commitments or understandings, written or oral, whether legally binding or otherwise that have been entered into by the Seller or by Harvard for the benefit of the Seller in the normal and ordinary course of the Business prior to the Closing Date (collectively, "Ordinary Contracts"), provided that (i) any such Material Contract is consistent with the representations and warranties of the Harvard Parties contained herein with respect to the Material Contracts and (ii) the other party to any such Material Contract has not previously prepaid or otherwise furnished the Seller the consideration to be paid by such person in accordance with the terms of such Material Contract;
(h) any and all (i) rights to make claims and to receive insurance payments or recoveries under insurance policies of the Harvard Parties, but only to the extent that such claims and insurance payments or recoveries relate to Assumed Liabilities and (ii) claims made by the Harvard Parties under any insurance policy with respect to any Assumed Liability and any related refunds or proceeds and all rights relating thereto;
(i) to the extent assignable pursuant to the terms thereof, any and all governmental licenses, permits, including Environmental Permits, or authorizations (collectively, "Permits") issued in connection with the operation of the Business;
(j) all rights, benefits and claims, including rights of indemnification, warranty, monetary relief and/or replacement of Inventories, products or supplies (including, without limitation: open purchase orders for raw materials and supplies; agreements with customers to provide goods or services under which Seller has an unperformed obligation to deliver goods or services; licenses, whether as licensor or licensee; bonds and agreements related to bonds; and leases of real or personal property (each a “Contract” and collectively the “Contracts”Supplies), except those which are Excluded Liabilities pursuant to Section 2.4may be asserted against any vendor, manufacturer or supplier of any of the Acquired Assets; and
(k) all other rights and assets, tangible or intangible, of the Harvard Parties exclusively used by the Harvard Parties in connection with the Business; provided, however, that if the assignment of any such Contract requires the consent of the other parties thereto, this Agreement shall not constitute an agreement to assign the same if an attempted assignment would constitute a breach thereof, but Seller and Buyer shall use their best efforts to obtain the written consent of the other parties to such assignment;
(g) All sales and promotional materials, catalogs, advertising and marketing materials;
(h) All books, records, documents, files, correspondence, customer lists, procedural manuals and other printed or written materials, whether stored electronically or otherwise, concerning the Business (except those relating to (i) solely Excluded Assets, or (ii) the organization, corporate maintenance and corporate existence of Seller); Buyer shall maintain all business records of Seller transferred hereunder for a period of three (3) years following the Closing Date and shall make such records available to Seller at its reasonable and timely request for any reasonable purpose; provided, however, that Seller shall be responsible for all costs of copying such records;
(i) All of Seller’s rights in Intellectual Property, including without limitation the following: (1) patents and registrations and applications therefor, and all reissuances, extensions and continuations thereof; (2) trademarks, service marks, logos, brand names, trade names and registrations and applications therefor; (3) all copyrightable works, copyrights and registrations and applications therefor and all renewals thereof; (4) all mask works and registrations and applications therefor, and all renewals thereof; (5) subject to the approval of licensors or licensees, if required, licenses granted to or by Seller; (6) computer software (including all data, source code and related documentation belonging to or in the possession of Seller); and (7) technical documentation reflecting engineering, maintenance, servicing and production data, design data, plans, specifications, drawings, technology, know-how, trade secrets, confidential business information, research and development, servicing and maintenance processes, customer and supplier lists, pricing and cost information and business and marketing plans and proposals, relating to the Business or to the maintenance of Acquired Assets and all documentary evidence thereofshall not, including without limitation the technical information incorporated in such documentation; to the extent that Intellectual Property is entered in pertinent patent and trademark registers or officesany event, Seller shall, to the full extent permitted by law, deliver to Buyer all related files in Seller’s direct and indirect possession and all documents, certificates and declarations necessary to enable Buyer to register such Intellectual Property in its name;
(j) All rights and interest in the joint venture with Brickell Asset Management;
(k) The right to use the name “Worthington Aviation” and any derivations thereof; provided, however, that nothing in this Agreement or otherwise shall prevent Worthington Tractor Parts, Inc. (a/k/a Xxxxxxxxxxx Xx Parts) from continuing to use the name “Worthington” and the marks, logos, trademarks or symbols used by it.
(l) All other current assets, prepaid expenses, deposits, claims, refunds, causes of action, rights of recovery and warranty rights;
(m) All rights, title and interest of Seller in and to all warranties and guaranties given to, assigned to or benefitting Seller regarding the acquisition, construction, design, use, operation, management or maintenance of include any of the other Acquired Excluded Assets; and
(n) All rights of Seller under each Lease and to a leasehold interest in the Leased Real Estate.
Appears in 1 contract
