Transfer of Properties and Assets of Seller and Its Affiliates
Transfer of Properties and Assets of Seller and Its Affiliates Sample Clauses
Related to Transfer of Properties and Assets of Seller and Its Affiliates
Properties and Assets (a) Each Subject Company has a valid and enforceable leasehold interest in each of the leased premises in which it currently conducts its business, except as may be affected by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally or general equitable principles. Section 2.12(a) of the Seller Disclosure Letter identifies, as of the date hereof, all of the leases for real property to which each Subject Company is a party (the “Leases”). Except as set forth in Section 2.12(a) of the Disclosure Letter, the Leases constitute all real property owned, leased, subleased, licensed or otherwise used in the operation of the Business. The Sellers have previously provided or otherwise made available to Apollo true, complete and correct copies of such Leases. As of the date hereof, except as would not reasonably be expected to have, individually or in the aggregate, be Material to a Reasonable Investor, there is no default by the lessee or, to the Sellers’ Knowledge, the lessor under any such lease and to the Sellers’ Knowledge the use and operation of the property subject to the Leases does not violate any Applicable Law. Except as may be affected by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally or general equitable principles, (i) each Lease is the legal, valid and binding obligation of the Subject Company party thereto and, to the Knowledge of the Sellers, each other party to such Lease and (ii) each Lease is enforceable against such Subject Company and, to the Knowledge of the Sellers, each other party to such Lease. No Subject Company owns any real property. (b) Except as set forth in Section 2.12(a) of the Disclosure Letter, the Subject Companies own and have (and as of the Closing, shall own and have) good, valid and marketable title to or, in the case of leased property, good and valid leasehold interests in, or otherwise have (and as of the Closing, shall have) full or sufficient and legally enforceable rights to use, all of the properties, assets and rights (tangible or intangible, and real, personal or mixed) used or held for use in connection with, necessary for the conduct of, or otherwise material to the operations of, the Business as it is conducted as of the date hereof and as it will be conducted immediately prior to the Closing, in each case free and clear of any Lien other than Permitted Liens, except for any failure to have any such title, interest or right that would not, individually or in the aggregate, be Material to a Reasonable Investor. The Subject Companies have maintained in all material respects all tangible assets in good repair, working order and operating condition, subject only to ordinary wear and tear, except for any failure to be in good repair, working order or operating condition that would not, individually or in the aggregate, be Material to a Reasonable Investor.
Title to Properties and Assets Each Group Company has good and marketable title to all respective properties and assets, in each case such property and assets are subject to no Liens. With respect to the property and assets it leases, each Group Company is in compliance with such leases and holds valid leasehold interests in such assets free of any Liens.
Title to Properties and Assets; Liens The Company has good and marketable title to its properties and assets, and has good title to all its leasehold interests, in each case subject to no material mortgage, pledge, lien, lease, encumbrance or charge, other than
Title to Properties and Assets; Liens, Etc The Company has good and marketable title to its properties and assets, including the properties and assets reflected in the most recent balance sheet included in the Financial Statements, and good title to its leasehold estates, in each case subject to no mortgage, pledge, lien, lease, encumbrance or charge, other than (a) those resulting from taxes which have not yet become delinquent; (b) liens and encumbrances which do not materially detract from the value of the property subject thereto or materially impair the operations of the Company; and (c) those that have otherwise arisen in the ordinary course of business. The Company is in compliance with all material terms of each lease to which it is a party or is otherwise bound.
Excluded Assets Notwithstanding anything to the contrary in this Agreement, the Purchased Assets shall not include the following assets (collectively, the “Excluded Assets”): (a) all cash, cash equivalents (including marketable securities and short-term investments), bank accounts and their balances (including related books and records), lockboxes and deposits of, and any rights or interests in, the cash management system of Seller, including uncleared checks and drafts received or deposited for the account of Seller; (b) all rights under any Contracts, including those listed on Schedule 2.02(b), but excluding the Assumed Contracts; (c) all Company Plans and attributable assets of, or relating to, such plans, including all records, Contracts and arrangements associated with such Company Plans; (d) any Intellectual Property of Seller not Related to the Business; (e) Seller’s Organizational Documents and minute and equity ownership books and records having to do with the company organization or existence of Seller and its company seal; (f) all rights, claims, credits, causes of action or rights of set-off that Seller may have arising under this Agreement or as a result of the consummation of the transactions contemplated hereby; (g) any refunds of Taxes for any Pre-Closing Tax Period or for which Seller is liable pursuant to Section 6.12; (h) the Tax Returns and Tax records and reports of Seller other than those that are Purchased Assets; (i) all insurance policies of Seller, including claims thereunder and any claims or benefits in, to or under any express or implied warranties from suppliers of goods or services relating to Inventory sold by Seller prior to Closing; (j) all of Seller’s intercompany account balances with its Affiliates, including those related to the Products; (k) all assets, properties, and interests rights primarily used in or held for use in connection with the operation of Seller’s wound care and urology business; (l) the rights that accrue or will accrue to Seller under this Agreement and the other Transaction Documents; and (m) the other assets of Seller that are identified on Schedule 2.02(m).
Excluded Assets and Liabilities Notwithstanding that this ------------------------------- Agreement relates to the purchase of capital stock from Seller by Purchaser, which results in the Company retaining any and all of its assets and liabilities, it is understood and agreed that Seller shall remove from the Company's premises prior to Closing and/or, as appropriate, remove from the Company's books and records, only those particular assets set forth on Schedule 1.3 hereto (the "EXCLUDED ASSETS"). Further, Seller shall assume any and all liabilities set forth on Schedule 1.3 hereto (the "EXCLUDED LIABILITIES"). Purchaser agrees that it shall cause Penta-Gen and the Company to execute any and all such bills of sale, assignments and/or agreements as may be necessary to transfer title to the Excluded Assets to Seller and to assign and/or transfer the Excluded Liabilities to Seller. The parties hereto further agree that no other assets of the Company, whether tangible or intangible, shall be removed from the Company's premises or from the Company's books and records except in the ordinary course of the Company's Business as provided herein from and after December 31, 1995 through the Closing Date.
Retained Assets Notwithstanding anything to the contrary in Sections 2.1 through 2.9 or elsewhere herein, the Assets do not include the following (the “Retained Assets”): (a) All Claims of Seller (i) arising from acts, omissions or events related to, or damage to or destruction of, the Assets, occurring prior to the Effective Time, (ii) arising under or with respect to any of the Contracts that are attributable to periods of time prior to the Effective Time (including Claims for adjustments or refunds), or (iii) with respect to any of the Retained Assets, copies of all Records necessary to process such Claims after the Closing; (b) All rights and interest of Seller (i) under any policy or agreement of insurance or indemnity, (ii) under any bond or (iii) to any insurance or condemnation proceeds or awards arising, in each case, from acts, omissions or events related to, or damage to or destruction of, the Assets occurring prior to the Effective Time; (c) All Claims of Seller for refunds or loss carry forwards with respect to (i) production, severance, excise or any other similar Taxes or real or personal property or ad valorem taxes attributable to the Assets for any period prior to the Effective Time, (ii) any other Taxes including income or franchise Taxes or (iii) any Taxes attributable to the Retained Assets; (d) All proceeds, income, revenues, claims, refunds or other benefits (including any benefit attributable to any current or future laws or regulations in respect of “royalty relief” or other similar measures) not otherwise enumerated above, prior to the Effective Time as well as any security or other deposits made, attributable to (i) the Assets for any period prior to the Effective Time or (ii) any Retained Assets; (e) All documents and instruments of Seller relating to the Assets that may be protected by an attorney client privilege, provided that such restrictions have been disclosed to Buyer prior to Closing (other than title opinions, related documents and legal files and records included in, or are part of, the above referenced files and records); (f) All royalty overpayment amounts and/or future deductions as royalty offsets associated with the Assets as of the Effective Time; (g) Receivables and security interests as set forth under Section 2.7 prior to the Effective Time; (h) Audit rights arising under any of the Contracts or otherwise with respect to any period prior to the Effective Time to the extent relating to any Retained Assets; (i) All surface rights not associated with or used in conjunction with the Assets; and (j) For the avoidance of doubt, the Excluded Assets.
Properties and Leases Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company and the Company Subsidiaries have good and marketable title to all real properties and all other properties and assets owned by them, in each case free from liens, encumbrances, claims and defects that would affect the value thereof or interfere with the use made or to be made thereof by them. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company and the Company Subsidiaries hold all leased real or personal property under valid and enforceable leases with no exceptions that would interfere with the use made or to be made thereof by them.
Assets and Properties (a) Except as set forth in Section 3.15 of the Company Disclosure Letter, and except for the Excluded Company Real Property, (i) either the Company or a Subsidiary of the Company has good and valid title, and as of the Effective Time, PropCo will have good and valid title, subject to Permitted Liens and any encumbrances and obligations that run with the land (including, but not limited to, easements and right-of-way agreements), to each real property owned by the Company or any Subsidiary of the Company (such owned property collectively, the “Company Owned Real Property”) and (ii) either the Company or a Subsidiary of the Company has a good and valid leasehold interest, and as of the Effective Time, PropCo will have good and valid leasehold interest, in each material lease, material sublease and other material agreement under which the Company or any of its Subsidiaries uses or occupies or has the right to use or occupy any real property (including real property at which operations of the Company or any of its Subsidiaries are conducted) (such property, the “Company Leased Real Property” and such leases, subleases and other agreements are, collectively, the “Company Real Property Leases”), in each case, free and clear of all Liens other than any Permitted Liens and any Lien affecting solely the interest of the landlord thereunder. Each Company Real Property Lease is, and after giving effect to the Distribution will be, valid, binding and in full force and effect, subject to the limitation of such enforcement by the Remedies Exceptions. No uncured default of a material nature on the part of the Company or, if applicable, its Subsidiary or, to the knowledge of the Company, the landlord or sublandlord thereunder (as applicable), exists under any Company Real Property Lease, and no event has occurred or circumstance exists which, with the giving of notice, the passage of time, or both, would constitute a material breach or default under a Company Real Property Lease. Section 3.15(a) of the Company Disclosure Letter sets forth a correct and complete list, as of the date hereof, of the Company Owned Real Property and the Company Leased Real Property. (b) There are no leases, subleases, licenses, rights or other agreements affecting any portion of the Company Owned Real Property or the Company Leased Real Property that would reasonably be expected to adversely affect the existing use of such Company Owned Real Property or the Company Leased Real Property by the Company or its Subsidiaries in the operation of its business thereon. There are no outstanding options or rights of first refusal in favor of any other party to purchase any Company Owned Real Property or any portion thereof or interest therein that would reasonably be expected to adversely affect the existing use of the Company Owned Real Property by the Company in the operation of its business thereon. Neither the Company nor any of its Subsidiaries is currently subleasing, licensing or otherwise granting any person the right to use or occupy a material portion of a Company Owned Real Property or Company Leased Real Property that would reasonably be expected to adversely affect in any material respect the existing use of such Company Owned Real Property or Company Leased Real Property in the operation of the business conducted thereon as currently conducted. (c) Section 3.15(c) of the Company Disclosure Letter contains a list of each Vessel and such list includes all Vessels used by the Company and its Subsidiaries in the conduct of the Company’s and its Subsidiaries’ business. The Company or a Subsidiary of the Company owns and has good and merchantable title to the Vessels, subject to any Permitted Liens. Except as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the operations or business of the Company and its Subsidiaries, taken as a whole, (i) each Vessel is currently documented with and has a current and valid certificate of inspection issued by, the United States Coast Guard or other applicable Governmental Entity, (ii) each Vessel is owned by, and on the Closing Date will be owned by, a citizen of the United States, pursuant to 46 U.S.C. §50501, as amended, and such citizen is eligible to own and operate the Vessel in the coastwise trade of the United States, (iii) the Vessels are in sufficient condition and repair and are adequate for the use, occupancy and operation of the business of the Company and its Subsidiaries, and (iv) to the knowledge of the Company, the improvements situated on the Vessels are free from structural defects and violations of Laws applicable thereto.
Transferred Assets (a) As of the Effective Time and upon the terms and conditions set forth herein, Seller will sell, assign, transfer, convey and deliver to Purchaser, and Purchaser will purchase from Seller, all of the rights, title and interest of Seller in the following assets associated with the Transferred Banking Center and identified in this Agreement and the Exhibits hereto and not otherwise excluded from sale pursuant to the provisions of Section 1.1(b) (collectively, the “Transferred Assets”): (1) all leases under which land and/or the building used as the Transferred Banking Center (the “Leased Property”) were leased by the Failed Bank and are leased by the Receiver and for which the Seller has an option to assume under the FDIC Agreement (the “Banking Center Lease”) listed on Exhibit 1.1(a)(1), unless Purchaser elects not to assume the Banking Center Lease (as defined below) pursuant to Section 1.10; (2) except as provided in Section 1.1(b), all furniture, fixtures, leasehold improvements, equipment and other tangible personal property located at the Transferred Banking Center and used in conducting Seller’s business at the Transferred Banking Center (the “Personal Property,” and together with the Leased Property and the Banking Center Lease, the “Property”); (3) all personal property leases affecting the Transferred Banking Center, including all equipment leases for equipment located at the Transferred Banking Center, but excluding personal property leases for data processing equipment and software (subject to the exclusion, the “Equipment Leases”) all as set forth on Exhibit 1.1(a)(3); (4) those operating contracts under which goods or services are provided at the Transferred Banking Center, but excluding (i) all contracts that do not apply solely to the Transferred Banking Center but also apply to operations of Seller that are not the Transferred Banking Center, and (ii) all data processing contracts, regardless of scope (subject, in each case, to such exclusions, the “Assignable Contracts”) all as set forth on Exhibit 1.1(a)(4); (5) the automated teller machine located at the Transferred Banking Center; (6) all coins and currency located at the Transferred Banking Center as of the Effective Time (the “Coins and Currency”); and (7) all outstanding balances and accrued interest of the overdraft lines of credit associated with the Deposit Liabilities and set forth on Exhibit 1.1(a)(5) (the “Overdraft Lines of Credit”), provided that such Overdraft Lines of Credit are not (A) in excess of $5,000 individually or $100,000 in the aggregate or (B) outstanding for thirty (30) days or more. (b) Excluded from the assets, properties and rights being transferred, conveyed and assigned to Purchaser under this Agreement are Seller’s rights in and to any refund for any Taxes and, except as specifically provided in Article III, any of Seller’s or its affiliates’ corporate logos, trademarks, trade names, signs, paper stock, forms and other supplies containing any such logos, software, trademarks or trade names, trade names and logos of third parties with whom Seller has contracted to provide services to its customers and any other assets of Seller or related to the Failed Bank not set forth in Section 1.1(a) (collectively, the “Excluded Assets”). Purchaser understands and agrees that it is purchasing only the assets specified in this Agreement and, except as may be expressly provided for in this Agreement, Purchaser has no interest in or right to any other business conducted by Seller at the Transferred Banking Center. (c) THE CONVEYANCE OF ALL THE TRANSFERRED ASSETS, INCLUDING PERSONAL PROPERTY INTERESTS, PURCHASED BY PURCHASER UNDER THIS AGREEMENT SHALL BE MADE, AS NECESSARY, BY SELLER’S XXXX OF SALE, “AS IS,” “WHERE IS,” WITHOUT RECOURSE AND, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT WITHOUT ANY WARRANTIES WHATSOEVER WITH RESPECT TO SUCH ASSETS EXPRESS OR IMPLIED, WITH RESPECT TO TITLE, ENFORCEABILITY, COLLECTABILITY, DOCUMENTATION OR FREEDOM FROM LIENS OR ENCUMBRANCES (IN WHOLE OR IN PART), OR ANY OTHER MATTERS.
