Transferred Assets. Upon the terms and subject to the conditions contained herein, on the Closing Date, Tecumseh shall, or shall cause to be sold, conveyed, assigned, transferred or delivered, and shall cause the Asset Sellers to, sell, convey, assign, transfer and deliver, to the Purchaser (or upon the Purchaser's request, to one or more wholly-owned subsidiaries of the Purchaser as designated by the Purchaser), free and clear of all Liens, except for Permitted Exceptions, and the Purchaser shall purchase, acquire and accept from the Asset Sellers, all of the assets, properties, rights, licenses, Contracts (or portions thereof or rights thereunder) and businesses, of every kind and description, wherever located, whether real, personal or mixed, tangible or intangible, that are owned, leased or licensed by the Asset Sellers and used in the conduct of the operation of the Acquired Business by the Asset Sellers as the same shall exist on the Closing Date, including all assets shown on the Balance Sheet of such Asset Seller and not disposed of in the ordinary course of business consistent with past practice as permitted by this Agreement, and all assets of the Acquired Business acquired by the Asset Sellers after the Balance Sheet Date and prior to the Closing as permitted by this Agreement (collectively, the "Transferred Assets"), including all right, title and interest of the Asset Sellers in, to and under: (a) all personal property and interests therein, including machinery, equipment, dies, tooling, molds, supplies, furniture, office equipment, software, communications equipment, vehicles, storage tanks, spare and replacement parts, fuel and other tangible personal property used or held for use in the conduct of the operation of the Acquired Business, including the items listed on Schedule 1.2.1(a); (b) all raw materials, work-in-process, finished goods (including those in transit), supplies, components, service and replacement parts and other inventories used or held for resale in the conduct of the operation of the Acquired Business, together with related packaging materials; (c) subject to Section 1.2.5, all rights under Contracts that relate to the Acquired Business (the "Assumed Contract Rights") listed on Schedule 1.2.1(c); (d) the owned and leased real property listed on Schedule 1.2.1(d); (e) all accounts, drafts, notes and other receivables that relate to the Acquired Business; (f) all rights of the Asset Sellers relating to deposits and prepaid expenses, claims for refunds (excluding Tax refunds) and rights to offset in respect thereof, in each case as of the Closing Date, including lease and rental payments, to the extent relating to the Acquired Business; (g) all of the Asset Sellers' causes of action against third parties relating to the Transferred Assets or any Assumed Liability, including rights under manufacturers' and vendors' warranties; (h) all Fasco Intellectual Property; (i) all other proprietary rights and intangible property rights relating to the Acquired Business that are transferable; (j) all transferable licenses, permits or other governmental authorizations used in the conduct of the operation of the Acquired Business; (k) all books, records, files and papers, whether in hard copy or computer format, used in the conduct of the operation of the Acquired Business, including engineering information, sales and promotional literature, catalogs, manuals and data, sales and purchase correspondence, lists of present and former suppliers, lists of present and former customers, personnel and employment records and copies of any information relating to Taxes imposed on the Acquired Business; (l) all computer source codes, programs, software and data, including all machine readable code, printed listings of code, documentation and related property and information, owned by the Asset Sellers and used in the conduct of the operation of the Acquired Business; (m) all insurance benefits, including rights and proceeds, arising from or relating to the Assumed Liabilities or any loss or damage with respect to the other Transferred Assets occurring prior to the Closing; (n) all goodwill associated with the Acquired Business, including that arising out of or associated with any of the Fasco Intellectual Property; and (o) the tools and dies located at Tecumseh's Paris, Tennessee facility used to produce or manufacture components, materials, supplies and other products for the Acquired Business, including the items listed on Schedule 1.2.1(o).
Appears in 2 contracts
Samples: Purchase Agreement (Tecumseh Products Co), Purchase Agreement (Tecumseh Products Co)
Transferred Assets. Upon On the terms and subject to the conditions contained hereinset forth in this Agreement, on the Closing Date, Tecumseh shall, or shall cause to be sold, conveyed, assigned, transferred or delivered, and shall cause the Asset Sellers toTransfer Agreement and the UK Asset Purchase Agreements, at the Initial Closing, subject to Section 2.2(b), OPH and each of the Asset Sellers, as the case may be, shall sell, convey, assign, transfer and deliver, deliver to the Purchaser (or upon the Purchaser's request, to one or more wholly-owned subsidiaries of the Purchaser as OPH Asset Buyer and an Asset Buyer designated by Acquiror, as the Purchaser), free and clear of all Liens, except for Permitted Exceptionscase may be, and the Purchaser OPH Asset Buyer and each such Asset Buyer shall purchase, acquire and accept from OPH and each Asset Seller, as the Asset Sellerscase may be, all of the assets, properties, rights, licenses, rights and Contracts (or portions thereof or rights thereunderto the extent assignable) and businesses, of every kind and description, wherever located, whether real, personal or mixed, tangible or intangible, that are owned, leased or licensed by the OPH or such Asset Sellers Seller and used in the conduct of the operation of the Acquired Business by the OPH or such Asset Sellers Seller, as the same shall exist on the Initial Closing DateDate (other than the Excluded Assets, including all assets shown on the Balance Sheet of such Asset Seller and not disposed of in the ordinary course of business consistent with past practice as permitted by this Agreement, and all assets of the Acquired Business acquired by the Asset Sellers after the Balance Sheet Date and prior to the Closing as permitted by this Agreement (collectively, the "“Transferred Assets"”), and including all right, title and interest of the OPH or such Asset Sellers Seller in, to and under:
(ai) all assets held as of the Initial Closing Date by any Asset Seller as statutory reserves for the Insurance Liabilities and the Reinsurance Liabilities of such Asset Seller as reflected in the books and records of such Asset Seller;
(ii) all personal property and interests therein, including machinery, equipment, dies, tooling, molds, supplies, furniture, office equipment, software, communications equipment, vehicles, storage tanks, spare and replacement parts, fuel equipment and other tangible personal property primarily used or held for use in connection with the conduct of the operation of the Acquired Business, including the items listed on Schedule 1.2.1(a);
(biii) all raw materials, work-in-process, finished goods (including those in transit), supplies, components, service and replacement parts and other inventories used or held for resale in the conduct of the operation of the Acquired Business, together with related packaging materials;
(c) subject to Section 1.2.5, all rights under Contracts that relate to the Acquired Business (the "Assumed Contract Rights") listed on Schedule 1.2.1(c)to which any Asset Seller is a party;
(div) the owned and leased all real property listed on Schedule 1.2.1(d)owned or leased by such Asset Seller used in connection with the Business and all improvements thereto;
(ev) all accounts, draftsnotes, notes premiums, reinsurance, retrocession and subrogation recoveries and other receivables that primarily relate to the Acquired Business;
(fvi) all rights of the expenses that have been prepaid by such Asset Sellers Seller relating to deposits and prepaid expenses, claims for refunds (excluding Tax refunds) and rights to offset in respect thereof, in each case as of the Closing DateBusiness, including ad valorem Taxes and lease and rental payments, to the extent relating to the Acquired Business;
(gvii) all of the such Asset Sellers' Seller’s causes of action against third parties relating to the Transferred Assets or any the Assumed LiabilityLiabilities, including rights under manufacturers' and vendors' warrantiesto the extent assignable;
(hviii) all Fasco Business Intellectual PropertyProperty and Business Technology;
(i) all other proprietary rights and intangible property rights relating to the Acquired Business that are transferable;
(jix) all transferable licenses, permits or other governmental authorizations Permits used in connection with the conduct of the operation of the Acquired Business;
(kx) the equity investments, to the extent owned by such Asset Seller;
(xi) subject to Section 2.2(b)(vi), all books, records, files and papers, whether in hard copy or computer format, used in the conduct of the operation of the Acquired Business, including engineering informationinsurance and reinsurance contracts, claims and underwriting files, sales and promotional literature, catalogs, manuals and data, sales and purchase correspondence, lists of present correspondence and former suppliers, lists of present and former customers, personnel and employment records and copies of any information relating to Taxes imposed on the Acquired Business;
(l) all computer source codes, programs, software and data, including all machine readable code, printed listings of code, documentation and related property and information, owned by the Asset Sellers and used in the conduct of the operation of the Acquired Business;
(m) all insurance benefits, including rights and proceeds, arising from or relating to the Assumed Liabilities or any loss or damage with respect to the other Transferred Assets occurring prior to the Closing;
(nxii) all goodwill associated with the Acquired Business, including that arising out of or associated with any of the Fasco Intellectual PropertyTransferred Assets; and
(oxiii) the tools rights to all Tax refunds and dies located at Tecumseh's ParisTax assets Acquiror and its Affiliates are entitled to under the Tax Matters Agreement, Tennessee facility used the UK Tax Matters Agreement and the International Tax Matters Agreement. Notwithstanding any other provision of this Agreement to produce the contrary, neither the UK Transfer Schemes nor this Agreement shall constitute an agreement to transfer or manufacture componentsassign any Transferred Asset or any claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, materialswithout the consent of a third party thereto, supplies would constitute a breach or other contravention thereof or in any way adversely affect the rights of the applicable Asset Buyer, the OPH Asset Buyer, OPH or the applicable Asset Seller thereunder. If such consent is not obtained, or if an attempted assignment thereof would be ineffective or would adversely affect the rights of OPH and other products the applicable Asset Sellers thereunder so that the applicable Asset Buyer and the OPH Asset Buyer would not in fact receive all such rights, OPH, the Asset Sellers, the OPH Asset Buyer and the Asset Buyers will, subject to Section 7.5(e), cooperate in a mutually agreeable arrangement under which the applicable Asset Buyer and the OPH Asset Buyer would obtain the benefits and assume the obligations and bear the economic burden thereunder in accordance with the UK Transfer Scheme or this Agreement, as applicable, including holding the same in trust, subcontracting, sublicensing or subleasing to the OPH Asset Buyer and the Asset Buyers, as the case may be, or under which OPH and the Asset Sellers would enforce for the Acquired Businessbenefit of the OPH Asset Buyer and the Asset Buyers any and all of their rights against a third party thereto, including and OPH and the items listed on Schedule 1.2.1(o)Asset Sellers would promptly pay to the OPH Asset Buyer and the Asset Buyers, as the case may be, when received all monies received by them under any Transferred Asset or any claim or right or any benefit arising thereunder or resulting therefrom.
Appears in 1 contract
Transferred Assets. Upon On the terms and subject to the conditions contained set forth herein, on at the Closing Date(or, Tecumseh in the case of the Deferred Closing Assets, at the applicable Deferred Closing), Seller shall, or shall cause to be sold, conveyed, assigned, transferred or delivered, and shall cause the Asset Other Sellers to, sell, convey, assigntransfer, transfer assign and deliver, deliver to the Purchaser (or upon the Purchaser's request, to one or more wholly-owned subsidiaries Purchaser Assigns, and Purchaser or one or more Purchaser Assigns shall purchase and acquire from Seller and each Other Seller, all of Seller’s and the Other Sellers’ right, title and interest, as of the Purchaser Closing (or, in the case of the Deferred Closing Assets, as designated by of the Purchaserapplicable Deferred Closing), in and to the following assets, but excluding the Excluded Assets (collectively, the “Transferred Assets”) (it being understood that (x) in the case of the Transferred Assets (excluding any Transferred Names) that are transferred or assigned by Seller or any Debtor Subsidiary Seller, such assets will be free and clear of all LiensInterests (other than Permitted Encumbrances, except for Assumed Liabilities and Liens created by or through Purchaser or any of its Affiliates) pursuant to and to the maximum extent permitted by Sections 363 and 365 of the Bankruptcy Code and (y) in the case of (i) the Deferred Closing Assets and (ii) the Transferred Assets (excluding any Transferred Names) that are transferred or assigned by the Non-Debtor Subsidiary Sellers, such assets will be free and clear of all Liens (other than Permitted ExceptionsEncumbrances, Assumed Liabilities and Liens created by or through Purchaser or any of its Affiliates)):
(i) the assets listed on Section 2.1(a)(i) of the Seller Disclosure Schedule;
(ii) the Transferred Shares;
(iii) the Transferred Real Property;
(iv) all of Seller’s and each of the Other Sellers’ rights in the Real Property Leases;
(v) the Owned Inventory;
(vi) the Owned Equipment;
(vii) subject to Section 2.1(f) and Section 5.12, the Assigned Contracts and the Purchaser shall purchaseShared Contracts;
(viii) the Current Assets;
(ix) the Specified Avoidance Claims (to the extent not released by Seller and the Debtor Subsidiary Sellers);
(x) subject to Section 5.19, acquire the Current Business Information;
(xi) subject to Section 5.19, the Historic Business Information;
(xii) subject to Section 5.19, the Transferred Employee Email;
(xiii) all rights and accept from interests in all telephone numbers for cell phones provided by Seller to Transferred Employees;
(xiv) the Asset Sellers, Transferred Employee Records;
(xv) all assets and rights to the extent provided for in Article VII (Employment Matters);
(xvi) the Transferred Intellectual Property (all of which shall be assigned and transferred as of the assetsClosing), propertiessubject to (A) the Permitted Encumbrances, (B) any and all licenses listed on Section 3.8(b) of the Seller Disclosure Schedule and (C) Seller’s rights pursuant to this Agreement to maintain and utilize copies of any Business Information constituting Transferred Assets;
(xvii) subject to Section 5.12, the Transferred Third Party Software;
(xviii) the Transferred Names, but solely to the extent of Kodak’s rights, licensesif any, Contracts in such Transferred Names, which are sold, conveyed, transferred and assigned on an “as-is” basis, together with all goodwill thereto, if any;
(xix) all guaranties, warranties, indemnities and similar rights in favor of Seller or portions thereof any Other Seller primarily related to any Transferred Asset or rights thereunderthe Business;
(xx) all causes of action, lawsuits, judgments, claims and businessesdemands of any nature available to or being pursued by Seller or any Other Seller to the extent primarily related to the Transferred Assets, the Assumed Liabilities or the ownership, use, function or value of every kind and description, wherever located, whether real, personal any Transferred Asset or mixed, tangible or intangible, that are owned, leased or licensed by the Asset Sellers and used in the conduct of the operation of the Acquired Business Business, whether arising by way of counterclaim or otherwise;
(xxi) to the extent assignable under applicable Law, all Consents of Government Entities primarily related to the Business;
(xxii) all prepaid expenses relating to any Transferred Asset Sellers (except for any post-Closing rent, costs, or other expenses due pursuant to the terms of any Real Property Leases prepaid by Seller as set forth in Section 5.25(m));
(xxiii) all goodwill associated with the same shall exist on Business;
(xxiv) any rights of Seller or any Other Seller to insurance proceeds under any Seller Insurance Policy for any Transferred Asset that is materially damaged or destroyed between the Original Execution Date and the Closing DateDate (or, including in the case of a Transferred Asset that is to be assigned at a Deferred Closing, between the Original Execution Date and the Deferred Closing Date with respect to such Transferred Asset);
(xxv) all other assets shown on the Balance Sheet of such Asset Seller and not disposed of in the ordinary course of business consistent with past practice as permitted by this Agreement, and all assets of the Acquired Business acquired by the Asset Other Sellers after the Balance Sheet Date and prior to the Closing as permitted by this Agreement (collectively, the "Transferred Assets"), including all right, title and interest of the Asset Sellers in, to and under:
(a) all personal property and interests therein, including machinery, equipment, dies, tooling, molds, supplies, furniture, office equipment, software, communications equipment, vehicles, storage tanks, spare and replacement parts, fuel and other tangible personal property that are primarily used or held for use in the conduct of the operation of the Acquired Business, including the items listed on Schedule 1.2.1(a);
(b) all raw materialswhether tangible or intangible, work-in-processreal, finished goods (including those in transit)personal or mixed, supplies, components, service and replacement parts and other inventories used but excluding any such assets that constitute Intellectual Property or held for resale in the conduct of the operation of the Acquired Business, together with related packaging materials;
(c) subject to Section 1.2.5, all rights under Contracts that relate to the Acquired Business (the "Assumed Contract Rights") listed on Schedule 1.2.1(c);
(d) the owned and leased real property listed on Schedule 1.2.1(d);
(e) all accounts, drafts, notes and other receivables that relate to the Acquired Business;
(f) all rights of the Asset Sellers relating to deposits and prepaid expenses, claims for refunds (excluding Tax refunds) and rights to offset in respect thereof, in each case as of the Closing Date, including lease and rental payments, to the extent relating to the Acquired Business;
(g) all of the Asset Sellers' causes of action against third parties relating to the Transferred Assets or any Assumed Liability, including rights under manufacturers' and vendors' warranties;
(h) all Fasco Intellectual Property;
(i) all other proprietary rights and intangible property rights relating to the Acquired Business that are transferable;
(j) all transferable licenses, permits or other governmental authorizations used in the conduct of the operation of the Acquired Business;
(k) all books, records, files and papers, whether in hard copy or computer format, used in the conduct of the operation of the Acquired Business, including engineering information, sales and promotional literature, catalogs, manuals and data, sales and purchase correspondence, lists of present and former suppliers, lists of present and former customers, personnel and employment records and copies of any information relating to Taxes imposed on the Acquired Business;
(l) all computer source codes, programs, software and data, including all machine readable code, printed listings of code, documentation and related property and information, owned by the Asset Sellers and used in the conduct of the operation of the Acquired Business;
(m) all insurance benefits, including rights and proceeds, arising from or relating to the Assumed Liabilities or any loss or damage with respect to the other Transferred Assets occurring prior to the Closing;
(n) all goodwill associated with the Acquired Business, including that arising out of or associated with any of the Fasco Intellectual PropertySoftware; and
(oxxvi) any Tax assets to the tools and dies located at Tecumseh's Paris, Tennessee facility used to produce or manufacture components, materials, supplies and other products for benefit of the Acquired Business, including the items listed on Schedule 1.2.1(oPurchaser under Section 6.5(a).
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Eastman Kodak Co)
Transferred Assets. Upon Subject to and upon the terms and subject to conditions set forth in this Master Agreement, at the conditions contained hereinClosing, on the Closing Date, Tecumseh shallHarrxx xxxll, or shall cause to be sold, conveyed, assigned, transferred or delivered, and shall cause the Asset other Sellers to, sell, convey, assign, transfer transfer, convey and deliverdeliver to Buyer (or, as to certain assets selected by Buyer, at Buyer's written request to Harrxx xxxe (5) Business Days prior to the Closing Date, to the Purchaser (or upon the Purchaser's request, to one or more wholly-owned subsidiaries of the Purchaser as designated by the PurchaserParent), free and clear Buyer and Parent shall purchase and acquire from each Seller, all right, title and interest of all Liens, except for Permitted Exceptions, each Seller in and the Purchaser shall purchase, acquire and accept from the Asset Sellers, to all of the properties, assets, properties, rights, licenses, Contracts contracts and rights constituting or primarily used or held primarily for use in the Business (or portions thereof or rights thereunder) and businesses, of every kind and descriptionother than the Excluded Assets), wherever locatedsuch assets, properties and rights are located and whether such assets are real, personal or mixed, tangible or intangible, that are ownedmatured or unmatured, leased known or licensed by the Asset Sellers unknown, contingent or fixed, and used in the conduct of the operation of the Acquired Business by the Asset Sellers as the same shall exist on the Closing Date, including all assets shown on the Balance Sheet whether or not any of such Asset Seller and not disposed of assets have any value for accounting purposes or are carried or reflected on or specifically referred to in the ordinary course of business consistent with past practice as permitted by this Agreement, and all assets of the Acquired Business acquired by the Asset Sellers after the Balance Sheet Date and prior to the Closing as permitted by this Agreement Sellers' books or financial statements (collectively, the "Transferred Assets"), including including, without limitation, the assets listed below (as listed below, the Transferred Assets include properties, contracts, rights and assets owned by the Transferred Subsidiaries and all rightsuch properties, title contracts, rights and interest assets shall be transferred indirectly by transferring the capital stock of the Asset Sellers in, to and under:Transferred Subsidiaries):
(a) all personal property of the Fixed Assets described on Schedule 2.1(a);
(b) all of the Owned Real Estate;
(c) the assets and rights conveyed pursuant to the terms of the IP Transfer Agreements;
(d) all ownership interests thereinin the Transferred Subsidiaries listed on Schedule 2.1(d);
(e) all of the Assumed Contract Obligations, including machinerythose under the Material Contracts listed on Schedule 4.11;
(f) all inventory, equipmentwherever located (including inventory in transit), diesincluding, toolingwithout limitation, moldsall the raw materials, work in process, recycled materials, finished products, supplies, furniture, office equipment, software, communications equipment, vehicles, storage tanks, and spare parts located at the Manufacturing Facilities or elsewhere and replacement parts, fuel and other tangible personal property primarily used or held primarily for use in the conduct of the operation of the Acquired Business, including items of the items listed on Schedule 1.2.1(a);
(b) all raw materials, work-in-process, finished goods (including those in transit), supplies, components, service type and replacement parts and other inventories used or held for resale nature of the materials identified as inventory in the conduct of the operation of the Acquired Business, together with related packaging materials;
(c) subject to Section 1.2.5, all rights under Contracts that relate to the Acquired Business (the "Assumed Contract Rights") listed on Schedule 1.2.1(c);
(d) the owned and leased real property listed on Schedule 1.2.1(d);
(e) all accounts, drafts, notes and other receivables that relate to the Acquired Business;
(f) all rights of the Asset Sellers relating to deposits and prepaid expenses, claims for refunds (excluding Tax refunds) and rights to offset in respect thereof, in each case as of the Closing Date, including lease and rental payments, to the extent relating to the Acquired BusinessBaseline Financial Statements;
(g) all of the Asset Sellers' causes of action against third parties relating to furniture and office equipment, including desks, tables, chairs, file cabinets and other storage devices, communications equipment, computers and office supplies which are owned or leased by a Seller and located at the Transferred Assets Facilities or any Assumed Liabilityelsewhere and that are primarily used or held primarily for use in the conduct of the Business, including rights under manufacturers' or that are in transit to or temporarily removed from a location specified above and vendors' warrantieswhich would otherwise be included among the items identified above;
(h) all Fasco Intellectual Propertyof the prepaid expenses and security deposits reflected on the Audited Closing Balance Sheet;
(i) all other proprietary rights of the Books and intangible property rights relating to the Acquired Business that are transferableRecords;
(j) to the extent their transfer is permitted by Applicable Law, all transferable licenses, permits Governmental Approvals primarily used or other governmental authorizations used held primarily for use in the conduct of Transferred Facilities or the operation of the Acquired Business, including all applications therefor;
(k) to the extent transferable, all booksrights under express or implied warranties and licenses from Sellers' suppliers (including manufacturers and distributors) with respect to the Transferred Assets and any related claims, recordscredits, files rights of recovery and papers, whether in hard copy or computer format, used in the conduct of the operation of the Acquired Business, including engineering information, sales and promotional literature, catalogs, manuals and data, sales and purchase correspondence, lists of present and former suppliers, lists of present and former customers, personnel and employment records and copies of any information relating set-off with respect to Taxes imposed on the Acquired Businesssuch items;
(l) all computer source codesrights to causes of action, programslawsuits, software claims and datademands of any nature available to the Business Entities that relate primarily to the Transferred Assets (it being understood that Buyer's rights to causes of action, lawsuits, claims and demands in respect of Patents and Intangible Property Rights are governed by the IP Transfer Agreements) or the Assumed Liabilities;
(m) to the extent transferable, all guarantees, warranties, indemnities and similar rights in favor of Sellers in connection with the Transferred Assets and any related claims, credits, rights of recovery and set-off with respect thereto;
(n) the Policies;
(o) all of the Leased Real Estate, except for the Retained Leased Real Estate;
(p) all of the motor vehicles, whether or not licensed or registered to operate on public highways, including automobiles, trucks, self-propelled carts, and other motorized lifting, material handling or transporting equipment and all machine readable codespare parts, printed listings of codefuel and other supplies, documentation tools and related property other items used in the operation or maintenance thereof which are owned or leased by a Seller and information, owned by located at the Asset Sellers Transferred Facilities or elsewhere and which are primarily used or held for use primarily in the conduct of the operation of Business, or which are in transit to or temporarily removed from a location specified above and which would otherwise be included among the Acquired Businessitems described above;
(mq) all rights of the Business Entities to any insurance benefits, including rights and proceeds, arising from or proceeds relating to the Assumed Liabilities damage, destruction or any loss impairment of assets or damage with respect to the other rights described in this Section 2.1 which would have been Transferred Assets occurring but for such damage, destruction or impairment prior to the Closing;
(nr) all goodwill associated assets (other than Excluded Assets) reflected in the April 2, 1999 balance sheet which is included in the Baseline Financial Statements, together with all replacements thereof, all expansions, enhancements and modifications thereto and all assets (other than Excluded Assets) of like character that have been or are acquired by the Acquired Business Entities subsequent to such balance sheet date and on or prior to the Closing Date, primarily for use in the Business, including that arising out except to the extent such assets have been disposed of in the ordinary course of business on or associated with any after such date;
(s) foreign currency hedgxx xxxated primarily to the operations of the Fasco Intellectual PropertyBusiness;
(t) all the items, if any, listed on Schedule 2.1(t);
(u) unrestricted cash on deposit in the United States, as of the close of business on the Closing Date, in the amount of $2,000,000;
(v) [RESERVED]; and
(ow) cash (to be transferred to Buyer at the tools and dies located at Tecumseh's Paristime other assets of Harrxx Xxxiconductor GmbH (Germany) are transferred to Buyer) in Germany in an amount equivalent to the amount accrued as of the Closing Date, Tennessee facility used to produce or manufacture componentsas reflected in the Audited Closing Balance Sheet, materials, supplies and other products for the Acquired Business, all German pension obligations including the items listed that disclosed on Schedule 1.2.1(o4.18.2 and unrestricted cash in the United States in an amount equivalent to the amount accrued as of the Closing Date, as reflected in the Audited Closing Balance Sheet, for obligations with respect to Transferred Employees, whether based inside or outside the United States, under Harrxx' xxpplemental employee retirement plan. In addition to the foregoing, Sellers shall sublease to Buyer all or such portions of the Retained Leased Real Estate as Sellers and Buyer may mutually agree in writing upon prior to the Closing (all of such subleased real estate, the "Subleased Real Estate") under and pursuant to subleases in form and substance mutually acceptable to Sellers and Buyer (collectively, the "Subleases") and, except where specifically excluded, as used herein the term "Transferred Assets" includes the Subleased Real Estate. The assets to be acquired by Parent shall consist of the Intellectual Property as may be specified in accordance with Section 2.1, and if the fair market value of the Intellectual Property shall be less than ninety million dollars ($90,000,000), with such difference in value being called the Parent Additional Assets Value, the Parent will acquire additional Transferred Assets having an aggregate fair market value equal to the Parent Additional Assets Value. The assets acquired by Parent (other than certain Intellectual Property determined by Parent) shall be transferred by Parent to Buyer as a capital contribution immediately following the Closing, and Parent hereby directs that Harrxx xxxnsfer at Closing such assets directly to Buyer on its behalf. All other Transferred Assets shall be acquired directly by Buyer from Harrxx. Buyer shall be permitted to have the acquisition of any Transferred Subsidiary not formed or incorporated in a state of the United States to be made by a wholly-owned subsidiary of Buyer incorporated under the laws of any jurisdiction, including, but not limited to, the laws of Malaysia.
Appears in 1 contract
Transferred Assets. Upon On the terms and subject to the conditions contained hereinset forth in this Agreement, on at the Closing DateClosing, Tecumseh shallthe Sellers shall sell, convey, assign, transfer and deliver, or shall cause to be sold, conveyed, assigned, transferred or delivered, and shall cause the Asset Sellers to, sell, convey, assign, transfer and deliver, to the Purchaser (or upon the Purchaser's request, to one or more wholly-owned subsidiaries of the Purchaser as designated by the Purchaser), free and clear of all Liens, except for Permitted ExceptionsBuyer, and the Purchaser Buyer shall purchase, acquire and accept from the Asset Sellers, free and clear of all Liens except for Permitted Liens, all of the assetsSellers’ right, propertiestitle and interest in, rights, licenses, Contracts (or portions thereof or rights thereunder) to and businesses, of every kind under the assets and description, wherever located, whether real, personal or mixed, tangible or intangible, that are owned, leased or licensed by the Asset Sellers and used in the conduct properties of the operation of Sellers primarily related to, or primarily used or primarily held for use in connection with, the Acquired Business by Business, including the Asset Sellers following assets and properties as the same shall exist on as of the Closing Date(all of such assets and properties being sold, conveyed, assigned, transferred and delivered are referred to herein collectively as the “Transferred Assets”):
(i) the owned real property listed in Section 2.01(a)(i) of the Disclosure Schedule (the “Owned Real Property”), and, subject to Section 2.02, all rights and benefits of the Sellers under the leases governing the leased real property listed in Section 2.01(a)(i) of the Disclosure Schedule (the “Leased Real Property”), together in each case with the Sellers’ right, title and interest in, to and under all structures, facilities or improvements currently or as of the Closing Date located thereon, including those structures, facilities and improvements listed in Section 2.01(a)(i) of the Disclosure Schedule, and all easements, licenses, rights and appurtenances related to the foregoing;
(ii) all finished goods, packaging materials and products for repacking operations, supplies and other inventories (including inventory located in vending equipment) primarily related to, or primarily used or primarily held for use in connection with, the Business, including those listed in Section 2.01(a)(ii) of the Disclosure Schedule;
(iii) all cold drink equipment and vending equipment primarily related to, or primarily used or primarily held for use in connection with, the Business, which equipment shall include all Transferred Fountain Equipment (collectively, the “Subject Equipment”), including the equipment described on Section 2.01(a)(iii) of the Disclosure Schedule;
(iv) all personal property owned by the Sellers and their interests therein primarily related to, or primarily used or primarily held for use in connection with, the Business, including the machinery, equipment (other than the Subject Equipment), furniture, furnishings, office equipment, communications equipment, forklifts, motorized vehicles, warehousing vehicles, trailers, spare and replacement parts, fuel, pre-mix and post-mix equipment and coolers, special event trailers, tools, beverage display and end aisle racks and advertising signs (illuminated and nonilluminated), point of sale materials and other tangible personal property (the “Tangible Personal Property”), including (A) those motorized vehicles, trailers, forklifts and warehousing vehicles listed on Section 2.01(a)(iv)-1 of the Disclosure Schedule and (B) those other items of personal property listed in Section 2.01(a)(iv)-2 of the Disclosure Schedule;
(v) subject to Section 2.02 and other than any Excluded Contracts, and except for any and all rights under any bottling, manufacturing, distribution, sales or other related contract or agreement for any TCCC brands and any of the goodwill and other intangible rights or assets shown associated therewith, all rights under (A) the Material Contracts set forth on Section 3.12(a) of the Balance Sheet of such Asset Seller Disclosure Schedule, (B) those contracts and not disposed of agreements primarily entered into in connection with the Business in the ordinary course of business consistent with past practice as permitted by this Agreement, and all assets that are not Material Contracts required to be disclosed on Section 3.12(a) of the Acquired Business acquired by Disclosure Schedule or that are entered into between the Asset Sellers after date hereof and the Balance Sheet Closing Date in accordance with Section 5.01 that would not be required to be so disclosed on Section 3.12(a) of the Disclosure Schedule had such contracts or agreements been in existence as of the date hereof, (C) those contracts and agreements listed in Section 2.01(a)(v) of the Disclosure Schedule, (D) any contract or agreement entered into between the date hereof and the Closing Date in accordance with Section 5.01 which, had such contract or agreement been entered into prior to the date hereof, would have been a Material Contract required to be set forth on Section 3.12(a) of the Disclosure Schedule (each, a “Pre-Closing as permitted by this Agreement Material Contract”) and (E) any Shared Contract, to the extent assigned to the Buyer pursuant to a Partial Assignment and Release under Section 5.17 (collectively, the "Transferred Assets"“Assumed Contracts”), including all right, title and interest of the Asset Sellers in, to and under:;
(avi) subject to Section 2.02 and to the extent transferable, all personal property Material Permits, Environmental Permits and interests thereinall other licenses, including machinery, equipment, dies, tooling, molds, supplies, furniture, office equipment, software, communications equipment, vehicles, storage tanks, spare and replacement parts, fuel permits and other tangible personal property governmental authorizations primarily related to, or primarily used or primarily held for use in connection with, the conduct of the operation of the Acquired Business, including those listed in Section 2.01(a)(vi) of the items listed on Schedule 1.2.1(a)Disclosure Schedule;
(b) all raw materials, work-in-process, finished goods (including those in transit), supplies, components, service and replacement parts and other inventories used or held for resale in the conduct of the operation of the Acquired Business, together with related packaging materials;
(c) subject to Section 1.2.5, all rights under Contracts that relate to the Acquired Business (the "Assumed Contract Rights") listed on Schedule 1.2.1(c);
(dvii) the owned and leased real property listed on Schedule 1.2.1(d);
(e) all accounts, drafts, notes and other receivables that relate to the Acquired Business;
(f) all rights of the Asset Sellers relating to deposits and prepaid expenses, claims for refunds (excluding Tax refunds) and rights to offset in respect thereof, in each case as of the Closing Date, including lease and rental payments, to the extent relating to the Acquired Business;
(g) all of the Asset Sellers' causes of action against third parties relating to the Transferred Assets or any Assumed Liability, including rights under manufacturers' and vendors' warranties;
(h) all Fasco Intellectual Property;
(i) all other proprietary rights and intangible property rights relating to the Acquired Business that are transferable;
(j) all transferable licenses, permits or other governmental authorizations used in the conduct of the operation of the Acquired Business;
(k) all original books, records, files and papers, whether in hard copy or computer format, used in the conduct of the operation of the Acquired Business, including engineering information, sales and promotional literature, catalogs, manuals and data, sales and purchase correspondence, lists of present quality control records and former suppliersprocedures, lists of present customers, customer records and, as and former customersto the extent provided in the Employee Matters Agreement, personnel and employment records and records, in each case, related to, or primarily used or primarily held for use in connection with, the Business, including those listed in Section 2.01(a)(vii) of the Disclosure Schedule, provided that the Sellers shall retain copies of any information relating each of the foregoing, and provided, further, that if the Sellers are required by Law to Taxes imposed on retain the Acquired Businessoriginals of such books, records, files and papers, they may do so and in such case they will provide the Buyer with copies thereof;
(lviii) all computer source codesthe deposits, programsadvances, software lease and datarental expenses, including all machine readable codepre-paid expenses, printed listings of codedeferred charges, documentation accrued rebates and related property credits and information, owned by similar items set forth on the Asset Sellers Final Amounts Schedule and used which are not included in the conduct of the operation of the Acquired BusinessRetained Assets;
(mix) the licensed Intellectual Property listed in Section 2.01(a)(ix) of the Disclosure Schedule (collectively, the “Transferred Licensed Intellectual Property”), which Transferred Licensed Intellectual Property, for purposes of clarity, shall not include any ownership or other proprietary interest in any Intellectual Property of the Sellers or their Affiliates (including TCCC) not specifically set forth on Section 2.01(a)(ix) of the Disclosure Schedule or any goodwill or other intangible rights or assets relating to or associated with the Intellectual Property of the Sellers or their Affiliates (including TCCC);
(x) the exclusive right for the Buyer to hold itself out as the purchaser of the Business (subject to the limitations set forth in Section 5.12 and Section 10.03), provided that such rights shall not be deemed to include any Intellectual Property (other than the Transferred Licensed Intellectual Property) of the Sellers or their Affiliates (including TCCC);
(xi) all casualty insurance benefits, including rights and proceedsif any, arising from or to the extent relating to the Assumed Liabilities or any loss or damage events occurring with respect to the other Transferred Assets occurring prior to the Closing;
(nxii) all goodwill associated with of the Acquired Sellers’ rights under warranties, indemnities and all similar rights against third parties to the extent related to any Transferred Assets;
(xiii) subject to Section 2.01(b)(vi), all Tax Returns related solely to the Business or the Transferred Assets;
(xiv) all rights to causes of action, lawsuits, judgments, claims and demands of any nature available to or being pursued by the Sellers, whether arising by way of claim, counterclaim or otherwise, in each case, primarily related to the Business, including that arising out of the Transferred Assets or associated with any the Assumed Liabilities;
(xv) all xxxxx cash used in the Business, as identified on the relevant balance sheet;
(xvi) those assets of the Fasco Intellectual PropertyBusiness included within Net Working Capital or Other Assets and Liabilities which are reflected as assets on the Final Amounts Schedule and which are not Retained Assets, but only to the extent of the amounts so included;
(xvii) subject to Section 2.01(b)(xv), all assets of the types referred to in Sections 2.01(a)(ii)-(xvi) above located at or relating to the Louisville Facility; and
(oxviii) the tools and dies located at Tecumseh's Paris, Tennessee facility used to produce or manufacture components, materials, supplies rights and other products for assets listed in Section 2.01(a)(xviii) of the Acquired Business, including the items listed on Schedule 1.2.1(o)Disclosure Schedule.
Appears in 1 contract
Transferred Assets. Upon On the terms and subject to the conditions contained hereinset forth in this Agreement, on at the Closing DateClosing, Tecumseh shallthe Sellers shall sell, convey, assign, transfer and deliver, or shall cause to be sold, conveyed, assigned, transferred or delivered, and shall cause the Asset Sellers to, sell, convey, assign, transfer and deliver, to the Purchaser (or upon the Purchaser's request, to one or more wholly-owned subsidiaries of the Purchaser as designated by the Purchaser), free and clear of all Liens, except for Permitted ExceptionsBuyer, and the Purchaser Buyer shall purchase, acquire and accept from the Asset Sellers, free and clear of all Liens except for Permitted Liens, all of the assetsSellers’ right, propertiestitle and interest in, rights, licenses, Contracts (or portions thereof or rights thereunder) to and businesses, of every kind under the assets and description, wherever located, whether real, personal or mixed, tangible or intangible, that are owned, leased or licensed by the Asset Sellers and used in the conduct properties of the operation of Sellers primarily related to, or primarily used or primarily held for use in connection with, the Acquired Business by Business, including the Asset Sellers following assets and properties as the same shall exist on as of the Closing Date(all of such assets and properties being sold, conveyed, assigned, transferred and delivered are referred to herein collectively as the “Transferred Assets”):
(i) the owned real property listed in Section 2.01(a)(i) of the Disclosure Schedule (the “Owned Real Property”), and, subject to Section 2.02, all rights and benefits of the Sellers under the leases governing the leased real property listed in Section 2.01(a)(i) of the Disclosure Schedule (the “Leased Real Property”), together in each case with the Sellers’ right, title and interest in, to and under all structures, facilities or improvements currently or as of the Closing Date located thereon, including those structures, facilities and improvements listed in Section 2.01(a)(i) of the Disclosure Schedule, and all easements, licenses, rights and appurtenances related to the foregoing;
(ii) all finished goods, packaging materials and products for repacking operations, supplies and other inventories (including inventory located in vending equipment) primarily related to, or primarily used or primarily held for use in connection with, the Business, including those listed in Section 2.01(a)(ii) of the Disclosure Schedule;
(iii) all cold drink equipment and vending equipment primarily related to, or primarily used or primarily held for use in connection with, the Business, which equipment shall include all Transferred Fountain Equipment (collectively, the “Subject Equipment”), including the equipment described on Section 2.01(a)(iii) of the Disclosure Schedule;
(iv) all personal property owned by the Sellers and their interests therein primarily related to, or primarily used or primarily held for use in connection with, the Business, including the machinery, equipment (other than the Subject Equipment), furniture, furnishings, office equipment, communications equipment, forklifts, motorized vehicles, warehousing vehicles, trailers, spare and replacement parts, fuel, pre-mix and post-mix equipment and coolers, special event trailers, tools, beverage display and end aisle racks and advertising signs (illuminated and nonilluminated), point of sale materials and other tangible personal property (the “Tangible Personal Property”), including (A) those motorized vehicles, trailers, forklifts and warehousing vehicles listed on Section 2.01(a)(iv)-1 of the Disclosure Schedule and (B) those other items of personal property listed in Section 2.01(a)(iv)-2 of the Disclosure Schedule;
(v) subject to Section 2.02 and other than any Excluded Contracts, and except for any and all rights under any bottling, manufacturing, distribution, sales or other related contract or agreement for any TCCC brands and any of the goodwill and other intangible rights or assets shown associated therewith, all rights under (A) the Material Contracts set forth on Section 3.12(a) of the Balance Sheet of such Asset Seller Disclosure Schedule, (B) those contracts and not disposed of agreements primarily entered into in connection with the Business in the ordinary course of business consistent with past practice as permitted by this Agreement, and all assets that are not Material Contracts required to be disclosed on Section 3.12(a) of the Acquired Business acquired by Disclosure Schedule or that are entered into between the Asset Sellers after date hereof and the Balance Sheet Closing Date in accordance with Section 5.01 that would not be required to be so disclosed on Section 3.12(a) of the Disclosure Schedule had such contracts or agreements been in existence as of the date hereof, (C) those contracts and agreements listed in Section 2.01(a)(v) of the Disclosure Schedule, (D) any contract or agreement entered into between the date hereof and the Closing Date in accordance with Section 5.01 which, had such contract or agreement been entered into prior to the date hereof, would have been a Material Contract required to be set forth on Section 3.12(a) of the Disclosure Schedule (each, a “Pre-Closing as permitted by this Agreement Material Contract”) and (E) any Shared Contract, to the extent assigned to the Buyer pursuant to a Partial Assignment and Release under Section 5.17 (collectively, the "Transferred Assets"“Assumed Contracts”), including all right, title and interest of the Asset Sellers in, to and under:;
(avi) subject to Section 2.02 and to the extent transferable, all personal property Material Permits, Environmental Permits and interests thereinall other licenses, including machinery, equipment, dies, tooling, molds, supplies, furniture, office equipment, software, communications equipment, vehicles, storage tanks, spare and replacement parts, fuel permits and other tangible personal property governmental authorizations primarily related to, or primarily used or primarily held for use in connection with, the conduct of the operation of the Acquired Business, including those listed in Section 2.01(a)(vi) of the items listed on Schedule 1.2.1(a)Disclosure Schedule;
(b) all raw materials, work-in-process, finished goods (including those in transit), supplies, components, service and replacement parts and other inventories used or held for resale in the conduct of the operation of the Acquired Business, together with related packaging materials;
(c) subject to Section 1.2.5, all rights under Contracts that relate to the Acquired Business (the "Assumed Contract Rights") listed on Schedule 1.2.1(c);
(dvii) the owned and leased real property listed on Schedule 1.2.1(d);
(e) all accounts, drafts, notes and other receivables that relate to the Acquired Business;
(f) all rights of the Asset Sellers relating to deposits and prepaid expenses, claims for refunds (excluding Tax refunds) and rights to offset in respect thereof, in each case as of the Closing Date, including lease and rental payments, to the extent relating to the Acquired Business;
(g) all of the Asset Sellers' causes of action against third parties relating to the Transferred Assets or any Assumed Liability, including rights under manufacturers' and vendors' warranties;
(h) all Fasco Intellectual Property;
(i) all other proprietary rights and intangible property rights relating to the Acquired Business that are transferable;
(j) all transferable licenses, permits or other governmental authorizations used in the conduct of the operation of the Acquired Business;
(k) all original books, records, files and papers, whether in hard copy or computer format, used in the conduct of the operation of the Acquired Business, including engineering information, sales and promotional literature, catalogs, manuals and data, sales and purchase correspondence, lists of present quality control records and former suppliersprocedures, lists of present customers, customer records and, as and former customersto the extent provided in the Employee Matters Agreement, personnel and employment records and records, in each case, related to, or primarily used or primarily held for use in connection with, the Business, including those listed in Section 2.01(a)(vii) of the Disclosure Schedule, provided that the Sellers shall retain copies of any information relating each of the foregoing, and provided, further, that if the Sellers are required by Law to Taxes imposed on retain the Acquired Businessoriginals of such books, records, files and papers, they may do so and in such case they will provide the Buyer with copies thereof;
(lviii) all computer source codesthe deposits, programsadvances, software lease and datarental expenses, including all machine readable codepre-paid expenses, printed listings of codedeferred charges, documentation accrued rebates and related property credits and information, owned by similar items set forth on the Asset Sellers Final Amounts Schedule and used which are not included in the conduct of the operation of the Acquired BusinessRetained Assets;
(mix) the licensed Intellectual Property listed in Section 2.01(a)(ix) of the Disclosure Schedule (collectively, the “Transferred Licensed Intellectual Property”), which Transferred Licensed Intellectual Property, for purposes of clarity, shall not include any ownership or other proprietary interest in any Intellectual Property of the Sellers or their Affiliates (including TCCC) not specifically set forth on Section 2.01(a)(ix) of the Disclosure Schedule or any goodwill or other intangible rights or assets relating to or associated with the Intellectual Property of the Sellers or their Affiliates (including TCCC);
(x) the exclusive right for the Buyer to hold itself out as the purchaser of the Business (subject to the limitations set forth in Section 5.12 and Section 10.03), provided that such rights shall not be deemed to include any Intellectual Property (other than the Transferred Licensed Intellectual Property) of the Sellers or their Affiliates (including TCCC);
(xi) all casualty insurance benefits, including rights and proceedsif any, arising from or to the extent relating to the Assumed Liabilities or any loss or damage events occurring with respect to the other Transferred Assets occurring prior to the Closing;
(nxii) all goodwill associated with of the Acquired Sellers’ rights under warranties, indemnities and all similar rights against third parties to the extent related to any Transferred Assets;
(xiii) subject to Section 2.01(b)(vi), all Tax Returns related solely to the Business or the Transferred Assets;
(xiv) all rights to causes of action, lawsuits, judgments, claims and demands of any nature available to or being pursued by the Sellers, whether arising by way of claim, counterclaim or otherwise, in each case, primarily related to the Business, including that arising out of the Transferred Assets or associated with any the Assumed Liabilities;
(xv) all xxxxx cash used in the Business, as identified on the relevant balance sheet;
(xvi) those assets of the Fasco Intellectual PropertyBusiness included within Net Working Capital or Other Assets and Liabilities which are reflected as assets on the Final Amounts Schedule and which are not Retained Assets, but only to the extent of the amounts so included; and
(oxvii) the tools and dies located at Tecumseh's Paris, Tennessee facility used to produce or manufacture components, materials, supplies rights and other products for assets listed in Section 2.01(a)(xvii) of the Acquired Business, including the items listed on Schedule 1.2.1(o)Disclosure Schedule.
Appears in 1 contract
Transferred Assets. Upon On the terms and subject to the conditions contained hereinset forth in this Agreement, on at the Closing DateClosing, Tecumseh shallthe Sellers shall sell, convey, assign, transfer and deliver, or shall cause to be sold, conveyed, assigned, transferred or delivered, and shall cause the Asset Sellers to, sell, convey, assign, transfer and deliver, to the Purchaser (or upon the Purchaser's request, to one or more wholly-owned subsidiaries of the Purchaser as designated by the Purchaser), free and clear of all Liens, except for Permitted ExceptionsBuyer, and the Purchaser Buyer shall purchase, acquire and accept from the Asset Sellers, free and clear of all Liens except for Permitted Liens, all of the assetsSellers’ right, propertiestitle and interest in, rights, licenses, Contracts (or portions thereof or rights thereunder) to and businesses, of every kind under the assets and description, wherever located, whether real, personal or mixed, tangible or intangible, that are owned, leased or licensed by the Asset Sellers and used in the conduct properties of the operation of Sellers primarily related to, or primarily used or primarily held for use in connection with, the Acquired Business by Business, including the Asset Sellers following assets and properties as the same shall exist on as of the Closing Date(all of such assets and properties being sold, conveyed, assigned, transferred and delivered are referred to herein collectively as the “Transferred Assets”):
(i) subject to Section 2.02, all rights and benefits of the Sellers under the leases governing the leased real property listed in Section 2.01(a)(i) of the Disclosure Schedule (the “Real Property”), together in each case with the Sellers’ right, title and interest in, to and under all structures, facilities or improvements currently or as of the Closing Date located thereon, including those structures, facilities and improvements listed in Section 2.01(a)(i) of the Disclosure Schedule, and all easements, licenses, rights and appurtenances related to the foregoing;
(ii) all finished goods, packaging materials and products for repacking operations, supplies and other inventories (including inventory located in vending equipment) primarily related to, or primarily used or primarily held for use in connection with, the Business, including those listed in Section 2.01(a)(ii) of the Disclosure Schedule;
(iii) all cold drink equipment and vending equipment primarily related to, or primarily used or primarily held for use in connection with, the Business, which equipment shall include all Transferred Fountain Equipment (collectively, the “Subject Equipment”), including the equipment described on Section 2.01(a)(iii) of the Disclosure Schedule;
(iv) all personal property owned by the Sellers and their interests therein primarily related to, or primarily used or primarily held for use in connection with, the Business, including the machinery, equipment (other than the Subject Equipment), furniture, furnishings, office equipment, communications equipment, forklifts, motorized vehicles, warehousing vehicles, trailers, spare and replacement parts, fuel, pre-mix and post-mix equipment and coolers, special event trailers, tools, beverage display and end aisle racks and advertising signs (illuminated and nonilluminated), point of sale materials and other tangible personal property (the “Tangible Personal Property”), including (A) those motorized vehicles, trailers, forklifts and warehousing vehicles listed on Section 2.01(a)(iv)-1 of the Disclosure Schedule and (B) those other items of personal property listed in Section 2.01(a)(iv)-2 of the Disclosure Schedule;
(v) subject to Section 2.02 and other than any Excluded Contracts, and except for any and all rights under any bottling, manufacturing, distribution, sales or other related contract or agreement for any TCCC brands and any of the goodwill and other intangible rights or assets shown associated therewith, all rights under (A) the Material Contracts set forth on Section 3.12(a) of the Balance Sheet of such Asset Seller Disclosure Schedule, (B) those contracts and not disposed of agreements primarily entered into in connection with the Business in the ordinary course of business consistent with past practice as permitted by this Agreement, and all assets that are not Material Contracts required to be disclosed on Section 3.12(a) of the Acquired Business acquired by Disclosure Schedule or that are entered into between the Asset Sellers after date hereof and the Balance Sheet Closing Date in accordance with Section 5.01 that would not be required to be so disclosed on Section 3.12(a) of the Disclosure Schedule had such contracts or agreements been in existence as of the date hereof, (C) those contracts and agreements listed in Section 2.01(a)(v) of the Disclosure Schedule, (D) any contract or agreement entered into between the date hereof and the Closing Date in accordance with Section 5.01 which, had such contract or agreement been entered into prior to the date hereof, would have been a Material Contract required to be set forth on Section 3.12(a) of the Disclosure Schedule (each, a “Pre-Closing as permitted by this Agreement Material Contract”) and (E) any Shared Contract, to the extent assigned to the Buyer pursuant to a Partial Assignment and Release under Section 5.17 (collectively, the "Transferred Assets"“Assumed Contracts”), including all right, title and interest of the Asset Sellers in, to and under:;
(avi) subject to Section 2.02 and to the extent transferable, all personal property Material Permits, Environmental Permits and interests thereinall other licenses, including machinery, equipment, dies, tooling, molds, supplies, furniture, office equipment, software, communications equipment, vehicles, storage tanks, spare and replacement parts, fuel permits and other tangible personal property governmental authorizations primarily related to, or primarily used or primarily held for use in connection with, the conduct of the operation of the Acquired Business, including those listed in Section 2.01(a)(vi) of the items listed on Schedule 1.2.1(a)Disclosure Schedule;
(b) all raw materials, work-in-process, finished goods (including those in transit), supplies, components, service and replacement parts and other inventories used or held for resale in the conduct of the operation of the Acquired Business, together with related packaging materials;
(c) subject to Section 1.2.5, all rights under Contracts that relate to the Acquired Business (the "Assumed Contract Rights") listed on Schedule 1.2.1(c);
(dvii) the owned and leased real property listed on Schedule 1.2.1(d);
(e) all accounts, drafts, notes and other receivables that relate to the Acquired Business;
(f) all rights of the Asset Sellers relating to deposits and prepaid expenses, claims for refunds (excluding Tax refunds) and rights to offset in respect thereof, in each case as of the Closing Date, including lease and rental payments, to the extent relating to the Acquired Business;
(g) all of the Asset Sellers' causes of action against third parties relating to the Transferred Assets or any Assumed Liability, including rights under manufacturers' and vendors' warranties;
(h) all Fasco Intellectual Property;
(i) all other proprietary rights and intangible property rights relating to the Acquired Business that are transferable;
(j) all transferable licenses, permits or other governmental authorizations used in the conduct of the operation of the Acquired Business;
(k) all original books, records, files and papers, whether in hard copy or computer format, used in the conduct of the operation of the Acquired Business, including engineering information, sales and promotional literature, catalogs, manuals and data, sales and purchase correspondence, lists of present quality control records and former suppliersprocedures, lists of present customers, customer records and, as and former customersto the extent provided in the Employee Matters Agreement, personnel and employment records and records, in each case, related to, or primarily used or primarily held for use in connection with, the Business, including those listed in Section 2.01(a)(vii) of the Disclosure Schedule, provided that the Sellers shall retain copies of any information relating each of the foregoing, and provided, further, that if the Sellers are required by Law to Taxes imposed on retain the Acquired Businessoriginals of such books, records, files and papers, they may do so and in such case they will provide the Buyer with copies thereof;
(lviii) all computer source codesthe deposits, programsadvances, software lease and datarental expenses, including all machine readable codepre-paid expenses, printed listings of codedeferred charges, documentation accrued rebates and related property credits and information, owned by similar items set forth on the Asset Sellers Final Amounts Schedule and used which are not included in the conduct of the operation of the Acquired BusinessRetained Assets;
(mix) the licensed Intellectual Property listed in Section 2.01(a)(ix) of the Disclosure Schedule (collectively, the “Transferred Licensed Intellectual Property”), which Transferred Licensed Intellectual Property, for purposes of clarity, shall not include any ownership or other proprietary interest in any Intellectual Property of the Sellers or their Affiliates (including TCCC) not specifically set forth on Section 2.01(a)(ix) of the Disclosure Schedule or any goodwill or other intangible rights or assets relating to or associated with the Intellectual Property of the Sellers or their Affiliates (including TCCC);
(x) the exclusive right for the Buyer to hold itself out as the purchaser of the Business (subject to the limitations set forth in Section 5.12 and Section 10.03), provided that such rights shall not be deemed to include any Intellectual Property (other than the Transferred Licensed Intellectual Property) of the Sellers or their Affiliates (including TCCC);
(xi) all casualty insurance benefits, including rights and proceedsif any, arising from or to the extent relating to the Assumed Liabilities or any loss or damage events occurring with respect to the other Transferred Assets occurring prior to the Closing;
(nxii) all goodwill associated with of the Acquired Sellers’ rights under warranties, indemnities and all similar rights against third parties to the extent related to any Transferred Assets;
(xiii) subject to Section 2.01(b)(vi), all Tax Returns related solely to the Business or the Transferred Assets;
(xiv) all rights to causes of action, lawsuits, judgments, claims and demands of any nature available to or being pursued by the Sellers, whether arising by way of claim, counterclaim or otherwise, in each case, primarily related to the Business, including that arising out of the Transferred Assets or associated with any the Assumed Liabilities;
(xv) all xxxxx cash used in the Business, as identified on the relevant balance sheet;
(xvi) those assets of the Fasco Intellectual PropertyBusiness included within Net Working Capital or Other Assets and Liabilities which are reflected as assets on the Final Amounts Schedule and which are not Retained Assets, but only to the extent of the amounts so included; and
(oxvii) the tools and dies located at Tecumseh's Paris, Tennessee facility used to produce or manufacture components, materials, supplies rights and other products for assets listed in Section 2.01(a)(xvii) of the Acquired Business, including the items listed on Schedule 1.2.1(o)Disclosure Schedule.
Appears in 1 contract
Transferred Assets. Upon On the terms and subject to the conditions contained hereinset forth in this Agreement, on at the Closing DateClosing, Tecumseh shallthe Sellers shall sell, convey, assign, transfer and deliver, or shall cause to be sold, conveyed, assigned, transferred or delivered, and shall cause the Asset Sellers to, sell, convey, assign, transfer and deliver, to the Purchaser (or upon the Purchaser's request, to one or more wholly-owned subsidiaries of the Purchaser as designated by the Purchaser), free and clear of all Liens, except for Permitted ExceptionsBuyer, and the Purchaser Buyer shall purchase, acquire and accept from the Asset Sellers, free and clear of all Liens except for Permitted Liens, all of the assetsSellers’ right, propertiestitle and interest in, rights, licenses, Contracts (or portions thereof or rights thereunder) to and businesses, of every kind under the assets and description, wherever located, whether real, personal or mixed, tangible or intangible, that are owned, leased or licensed by the Asset Sellers and used in the conduct properties of the operation of Sellers primarily related to, or primarily used or primarily held for use in connection with, the Acquired Business by Business, including the Asset Sellers following assets and properties as the same shall exist on as of the Closing Date(all of such assets and properties being sold, conveyed, assigned, transferred or delivered are referred to herein collectively as the “Transferred Assets”):
(i) subject to Section 2.02, all rights and benefits of the Sellers under the leases governing the leased real property listed in Section 2.01(a)(i) of the Disclosure Schedule (the “Real Property”), together with the Sellers’ right, title and interest in, to and under all structures, facilities or improvements currently or as of the Closing Date located thereon, including those structures, facilities and improvements listed in Section 2.01(a)(i) of the Disclosure Schedule, and all easements, licenses, rights and appurtenances related to the foregoing;
(ii) all finished goods, packaging materials and products for repacking operations, supplies and other inventories (including inventory located in vending equipment) primarily related to, or primarily used or primarily held for use in connection with, the Business, including those listed in Section 2.01(a)(ii) of the Disclosure Schedule;
(iii) all cold drink equipment and vending equipment primarily related to, or primarily used or primarily held for use in connection with, the Business, which equipment shall include all Transferred Fountain Equipment (collectively, the “Subject Equipment”), including the equipment described on Section 2.01(a)(iii) of the Disclosure Schedule;
(iv) all personal property owned by the Sellers and their interests therein primarily related to, or primarily used or primarily held for use in connection with, the Business, including the machinery, equipment (other than the Subject Equipment), furniture, furnishings, office equipment, communications equipment, forklifts, motorized vehicles, warehousing vehicles, trailers, spare and replacement parts, fuel, pre-mix and post-mix equipment and coolers, special event trailers, tools, beverage display and end aisle racks and advertising signs (illuminated and nonilluminated), point of sale materials and other tangible personal property (the “Tangible Personal Property”), including (A) those motorized vehicles, trailers, forklifts and warehousing vehicles listed on Section 2.01(a)(iv)-1 of the Disclosure Schedule and (B) those other items of personal property listed in Section 2.01(a)(iv)-2 of the Disclosure Schedule;
(v) subject to Section 2.02 and other than any Excluded Contracts, and except for any and all rights under any bottling, manufacturing, distribution, sales or other related contract or agreement for any TCCC brands and any of the goodwill and other intangible rights or assets shown associated therewith, all rights under (A) the Material Contracts set forth on Section 3.12(a) of the Balance Sheet of such Asset Seller Disclosure Schedule, (B) those contracts and not disposed of agreements primarily entered into in connection with the Business in the ordinary course of business consistent with past practice as permitted by this Agreement, and all assets that are not Material Contracts required to be disclosed on Section 3.12(a) of the Acquired Business acquired by Disclosure Schedule or that are entered into between the Asset Sellers after date hereof and the Balance Sheet Closing Date in accordance with Section 5.01 that would not be required to be so disclosed on Section 3.12(a) of the Disclosure Schedule had such contracts or agreements been in existence as of the date hereof, (C) any contract or agreement entered into between the date hereof and the Closing Date in accordance with Section 5.01 which, had such contract or agreement been entered into prior to the date hereof, would have been a Material Contract required to be set forth on Section 3.12(a) of the Disclosure Schedule (each, a “Pre-Closing as permitted by this Agreement Material Contract”) and (D) any Shared Contract, to the extent assigned to the Buyer pursuant to a Partial Assignment and Release under Section 5.17 (collectively, the "Transferred Assets"“Assumed Contracts”), including all right, title and interest of the Asset Sellers in, to and under:;
(avi) subject to Section 2.02 and to the extent transferable, all personal property Material Permits, Environmental Permits and interests thereinall other licenses, including machinery, equipment, dies, tooling, molds, supplies, furniture, office equipment, software, communications equipment, vehicles, storage tanks, spare and replacement parts, fuel permits and other tangible personal property governmental authorizations primarily related to, or primarily used or primarily held for use in connection with, the conduct of the operation of the Acquired Business, including those listed in Section 2.01(a)(vi) of the items listed on Schedule 1.2.1(a)Disclosure Schedule;
(b) all raw materials, work-in-process, finished goods (including those in transit), supplies, components, service and replacement parts and other inventories used or held for resale in the conduct of the operation of the Acquired Business, together with related packaging materials;
(c) subject to Section 1.2.5, all rights under Contracts that relate to the Acquired Business (the "Assumed Contract Rights") listed on Schedule 1.2.1(c);
(dvii) the owned and leased real property listed on Schedule 1.2.1(d);
(e) all accounts, drafts, notes and other receivables that relate to the Acquired Business;
(f) all rights of the Asset Sellers relating to deposits and prepaid expenses, claims for refunds (excluding Tax refunds) and rights to offset in respect thereof, in each case as of the Closing Date, including lease and rental payments, to the extent relating to the Acquired Business;
(g) all of the Asset Sellers' causes of action against third parties relating to the Transferred Assets or any Assumed Liability, including rights under manufacturers' and vendors' warranties;
(h) all Fasco Intellectual Property;
(i) all other proprietary rights and intangible property rights relating to the Acquired Business that are transferable;
(j) all transferable licenses, permits or other governmental authorizations used in the conduct of the operation of the Acquired Business;
(k) all original books, records, files and papers, whether in hard copy or computer format, used in the conduct of the operation of the Acquired Business, including engineering information, sales and promotional literature, catalogs, manuals and data, sales and purchase correspondence, lists of present quality control records and former suppliersprocedures, lists of present customers, customer records and, as and former customersto the extent provided in the Employee Matters Agreement, personnel and employment records and records, in each case, related to, or primarily used or primarily held for use in connection with, the Business, provided that the Sellers shall retain copies of any information relating each of the foregoing, and provided, further, that if the Sellers are required by Law to Taxes imposed on retain the Acquired Businessoriginals of such books, records, files and papers, they may do so and in such case they will provide the Buyer with copies thereof;
(lviii) all computer source codesthe deposits, programsadvances, software lease and datarental expenses, including all machine readable codepre-paid expenses, printed listings of codedeferred charges, documentation accrued rebates and related property credits and information, owned by similar items set forth on the Asset Sellers Final Amounts Schedule and used which are not included in the conduct of the operation of the Acquired BusinessRetained Assets;
(mix) the licensed Intellectual Property listed in Section 2.01(a)(ix) of the Disclosure Schedule (collectively, the “Transferred Licensed Intellectual Property”), which Transferred Licensed Intellectual Property, for purposes of clarity, shall not include any ownership or other proprietary interest in any Intellectual Property of the Sellers or their Affiliates (including TCCC) not specifically set forth on Section 2.01(a)(ix) of the Disclosure Schedule or any goodwill or other intangible rights or assets relating to or associated with the Intellectual Property of the Sellers or their Affiliates (including TCCC);
(x) the exclusive right for the Buyer to hold itself out as the purchaser of the Business (subject to the limitations set forth in Section 5.12 and Section 10.03), provided that such rights shall not be deemed to include any Intellectual Property (other than the Transferred Licensed Intellectual Property) of the Sellers or their Affiliates (including TCCC);
(xi) all casualty insurance benefits, including rights and proceedsif any, arising from or to the extent relating to the Assumed Liabilities or any loss or damage events occurring with respect to the other Transferred Assets occurring prior to the Closing;
(nxii) all goodwill associated with of the Acquired Sellers’ rights under warranties, indemnities and all similar rights against third parties to the extent related to any Transferred Assets;
(xiii) subject to Section 2.01(b)(vi), all Tax Returns related solely to the Business or the Transferred Assets;
(xiv) all rights to causes of action, lawsuits, judgments, claims and demands of any nature available to or being pursued by the Sellers, whether arising by way of claim, counterclaim or otherwise, in each case, primarily related to the Business, including that arising out of the Transferred Assets or associated with any the Assumed Liabilities;
(xv) all xxxxx cash used in the Business, as identified on the relevant balance sheet;
(xvi) those assets of the Fasco Intellectual PropertyBusiness included within Net Working Capital or Other Assets and Liabilities which are reflected as assets on the Final Amounts Schedule and which are not Retained Assets, but only to the extent of the amounts so included; and
(oxvii) the tools and dies located at Tecumseh's Paris, Tennessee facility used to produce or manufacture components, materials, supplies rights and other products for assets listed in Section 2.01(a)(xvii) of the Acquired Business, including the items listed on Schedule 1.2.1(o)Disclosure Schedule.
Appears in 1 contract
Samples: Asset Purchase Agreement (Coca Cola Bottling Co Consolidated /De/)
Transferred Assets. Upon On the terms and subject to the conditions contained hereinset forth in this Agreement, on at the Closing DateClosing, Tecumseh shallthe Sellers shall sell, convey, assign, transfer and deliver, or shall cause to be sold, conveyed, assigned, transferred or delivered, and shall cause the Asset Sellers to, sell, convey, assign, transfer and deliver, to the Purchaser (or upon the Purchaser's request, to one or more wholly-owned subsidiaries of the Purchaser as designated by the Purchaser), free and clear of all Liens, except for Permitted ExceptionsBuyer, and the Purchaser Buyer shall purchase, acquire and accept from the Asset Sellers, free and clear of all Liens except for Permitted Liens, all of the assetsSellers’ right, propertiestitle and interest in, rights, licenses, Contracts (or portions thereof or rights thereunder) to and businesses, of every kind under the assets and description, wherever located, whether real, personal or mixed, tangible or intangible, that are owned, leased or licensed by the Asset Sellers and used in the conduct properties of the operation of Sellers primarily related to, or primarily used or primarily held for use in connection with, the Acquired Business by Business, including the Asset Sellers following assets and properties as the same shall exist on as of the Closing Date(all of such assets and properties being sold, conveyed, assigned, transferred and delivered are referred to herein collectively as the “Transferred Assets”):
(i) the owned real property listed in Section 2.01(a)(i) of the Disclosure Schedule (the “Owned Real Property”), and, subject to Section 2.02, all rights and benefits of the Sellers with respect to the leased real property listed in Section 2.01(a)(i) of the Disclosure Schedule (the “Leased Real Property”), together in each case with the Sellers’ right, title and interest in, to and under all structures, facilities or improvements currently or as of the Closing Date located thereon, including those structures, facilities and improvements listed in Section 2.01(a)(i) of the Disclosure Schedule, and all easements, licenses, rights and appurtenances related to the foregoing;
(ii) all finished goods, packaging materials and products for repacking operations, supplies and other inventories (including inventory located in vending equipment) primarily related to, or primarily used or primarily held for use in connection with, the Business, including those listed in Section 2.01(a)(ii) of the Disclosure Schedule;
(iii) all cold drink equipment and vending equipment primarily related to, or primarily used or primarily held for use in connection with, the Business, which equipment shall include all Transferred Fountain Equipment (collectively, the “Subject Equipment”), including the equipment described on Section 2.01(a)(iii) of the Disclosure Schedule;
(iv) all personal property owned by the Sellers and their interests therein primarily related to, or primarily used or primarily held for use in connection with, the Business, including the machinery, equipment (other than the Subject Equipment), furniture, furnishings, office equipment, communications equipment, forklifts, motorized vehicles, warehousing vehicles, trailers, spare and replacement parts, fuel, pre-mix and post-mix equipment and coolers, special event trailers, tools, beverage display and end aisle racks and advertising signs (illuminated and nonilluminated), point of sale materials and other tangible personal property (the “Tangible Personal Property”), including (A) those motorized vehicles, trailers, forklifts and warehousing vehicles listed on Section 2.01(a)(iv)-1 of the Disclosure Schedule and (B) those other items of personal property listed in Section 2.01(a)(iv)-2 of the Disclosure Schedule;
(v) subject to Section 2.02 and other than any Excluded Contracts, and except for any and all rights under any bottling, manufacturing, distribution, sales or other related contract or agreement for any TCCC brands and any of the goodwill and other intangible rights or assets shown associated therewith, all rights under (A) the Material Contracts set forth on Section 3.12(a) of the Balance Sheet of such Asset Seller Disclosure Schedule, (B) those contracts and not disposed of agreements primarily entered into in connection with the Business in the ordinary course of business consistent with past practice as permitted by this Agreement, and all assets that are not Material Contracts required to be disclosed on Section 3.12(a) of the Acquired Business acquired by Disclosure Schedule or that are entered into between the Asset Sellers after date hereof and the Balance Sheet Closing Date in accordance with Section 5.01 that would not be required to be so disclosed on Section 3.12(a) of the Disclosure Schedule had such contracts or agreements been in existence as of the date hereof, (C) those contracts and agreements listed in Section 2.01(a)(v) of the Disclosure Schedule, (D) any contract or agreement entered into between the date hereof and the Closing Date in accordance with Section 5.01 which, had such contract or agreement been entered into prior to the date hereof, would have been a Material Contract required to be set forth on Section 3.12(a) of the Disclosure Schedule (each, a “Pre-Closing as permitted by this Agreement Material Contract”) and (E) any Shared Contract, to the extent assigned to the Buyer pursuant to a Partial Assignment and Release under Section 5.17 (collectively, the "Transferred Assets"“Assumed Contracts”), including all right, title and interest of the Asset Sellers in, to and under:;
(avi) subject to Section 2.02 and to the extent transferable, all personal property Material Permits, Environmental Permits and interests thereinall other licenses, including machinery, equipment, dies, tooling, molds, supplies, furniture, office equipment, software, communications equipment, vehicles, storage tanks, spare and replacement parts, fuel permits and other tangible personal property governmental authorizations primarily related to, or primarily used or primarily held for use in connection with, the conduct of the operation of the Acquired Business, including those listed in Section 2.01(a)(vi) of the items listed on Schedule 1.2.1(a)Disclosure Schedule;
(b) all raw materials, work-in-process, finished goods (including those in transit), supplies, components, service and replacement parts and other inventories used or held for resale in the conduct of the operation of the Acquired Business, together with related packaging materials;
(c) subject to Section 1.2.5, all rights under Contracts that relate to the Acquired Business (the "Assumed Contract Rights") listed on Schedule 1.2.1(c);
(dvii) the owned and leased real property listed on Schedule 1.2.1(d);
(e) all accounts, drafts, notes and other receivables that relate to the Acquired Business;
(f) all rights of the Asset Sellers relating to deposits and prepaid expenses, claims for refunds (excluding Tax refunds) and rights to offset in respect thereof, in each case as of the Closing Date, including lease and rental payments, to the extent relating to the Acquired Business;
(g) all of the Asset Sellers' causes of action against third parties relating to the Transferred Assets or any Assumed Liability, including rights under manufacturers' and vendors' warranties;
(h) all Fasco Intellectual Property;
(i) all other proprietary rights and intangible property rights relating to the Acquired Business that are transferable;
(j) all transferable licenses, permits or other governmental authorizations used in the conduct of the operation of the Acquired Business;
(k) all original books, records, files and papers, whether in hard copy or computer format, used in the conduct of the operation of the Acquired Business, including engineering information, sales and promotional literature, catalogs, manuals and data, sales and purchase correspondence, lists of present quality control records and former suppliersprocedures, lists of present customers, customer records and, as and former customersto the extent provided in the Employee Matters Agreement, personnel and employment records and records, in each case, related to, or primarily used or primarily held for use in connection with, the Business, including those listed in Section 2.01(a)(vii) of the Disclosure Schedule, provided that the Sellers shall retain copies of any information relating each of the foregoing, and provided, further, that if the Sellers are required by Law to Taxes imposed on retain the Acquired Businessoriginals of such books, records, files and papers, they may do so and in such case they will provide the Buyer with copies thereof;
(lviii) all computer source codesthe deposits, programsadvances, software lease and datarental expenses, including all machine readable codepre-paid expenses, printed listings of codedeferred charges, documentation accrued rebates and related property credits and information, owned by similar items set forth on the Asset Sellers Final Amounts Schedule and used which are not included in the conduct of the operation of the Acquired BusinessRetained Assets;
(mix) the licensed Intellectual Property listed in Section 2.01(a)(ix) of the Disclosure Schedule (collectively, the “Transferred Licensed Intellectual Property”), which Transferred Licensed Intellectual Property, for purposes of clarity, shall not include any ownership or other proprietary interest in any Intellectual Property of the Sellers or their Affiliates (including TCCC) not specifically set forth on Section 2.01(a)(ix) of the Disclosure Schedule or any goodwill or other intangible rights or assets relating to or associated with the Intellectual Property of the Sellers or their Affiliates (including TCCC);
(x) the exclusive right for the Buyer to hold itself out as the purchaser of the Business (subject to the limitations set forth in Section 5.12 and Section 10.03), provided that such rights shall not be deemed to include any Intellectual Property (other than the Transferred Licensed Intellectual Property) of the Sellers or their Affiliates (including TCCC);
(xi) all casualty insurance benefits, including rights and proceedsif any, arising from or to the extent relating to the Assumed Liabilities or any loss or damage events occurring with respect to the other Transferred Assets occurring prior to the Closing;
(nxii) all goodwill associated with of the Acquired Sellers’ rights under warranties, indemnities and all similar rights against third parties to the extent related to any Transferred Assets;
(xiii) subject to Section 2.01(b)(vi), all Tax Returns related solely to the Business or the Transferred Assets;
(xiv) all rights to causes of action, lawsuits, judgments, claims and demands of any nature available to or being pursued by the Sellers, whether arising by way of claim, counterclaim or otherwise, in each case, primarily related to the Business, including that arising out of the Transferred Assets or associated with any the Assumed Liabilities;
(xv) all xxxxx cash used in the Business, as identified on the relevant balance sheet;
(xvi) those assets of the Fasco Intellectual PropertyBusiness included within Net Working Capital or Other Assets and Liabilities which are reflected as assets on the Final Amounts Schedule and which are not Retained Assets, but only to the extent of the amounts so included;
(xvii) subject to Section 2.01(b)(xv), all assets of the types referred to in Sections 2.01(a)(ii)-(xvi) above located at or relating to the Cleveland Fleet Center; and
(oxviii) the tools and dies located at Tecumseh's Paris, Tennessee facility used to produce or manufacture components, materials, supplies rights and other products for assets listed in Section 2.01(a)(xviii) of the Acquired Business, including the items listed on Schedule 1.2.1(o)Disclosure Schedule.
Appears in 1 contract
Transferred Assets. Upon Subject to the terms and subject to the conditions contained hereinset forth in this Agreement, on at the Closing Date, Tecumseh shall, or the Buyer shall cause to be sold, conveyed, assigned, transferred or deliveredpurchase, and the New Image shall cause the Asset Sellers to, sell, convey, assign, transfer and deliver, deliver to the Purchaser (or upon the Purchaser's request, to one or more wholly-owned subsidiaries of the Purchaser as designated by the Purchaser), free and clear of all Liens, except for Permitted Exceptions, and the Purchaser shall purchase, acquire and accept from the Asset SellersBuyer, all of the New Image's assets, propertiesincluding without limitation all right, rights, licenses, Contracts (or portions thereof or rights thereunder) title and businesses, interest of every kind New Image in and description, wherever located, whether real, personal or mixed, tangible or intangible, that are owned, leased or licensed by to the Asset Sellers and assets used in connection with the conduct of the operation of the Acquired Business by New Image and the Asset Sellers as Allied Practices, but excluding the same shall exist on the Closing Date, including all assets shown on the Balance Sheet of such Asset Seller and not disposed of in the ordinary course of business consistent with past practice as permitted by this Agreement, and all assets of the Acquired Business acquired by the Asset Sellers after the Balance Sheet Date and prior to the Closing as permitted by this Agreement Excluded Assets (collectivelytogether, the "Transferred Assets"). Without limiting the generality of the foregoing, including the Transferred Assets shall include all of New Image's right, title title, and interest of in and to the Asset Sellers in, to and underfollowing:
(a) all personal Real property owned in fee and interests thereinleasehold estates and the related lease and sublease agreements, including machinerywhether as owner, equipment, dies, tooling, molds, supplies, furniture, office equipment, software, communications equipment, vehicles, storage tanks, spare and replacement parts, fuel and other tangible personal property used lessee or held for use in the conduct of the operation of the Acquired Business, including the items listed on Schedule 1.2.1(a);
(b) all raw materials, work-in-process, finished goods (including those in transit), supplies, components, service and replacement parts and other inventories used or held for resale in the conduct of the operation of the Acquired Business, together with related packaging materials;
(c) subject to Section 1.2.5, all rights under Contracts that relate to the Acquired Business (the "Assumed Contract Rights") listed on Schedule 1.2.1(c);
(d) the owned and leased real property listed on Schedule 1.2.1(d);
(e) all accounts, drafts, notes and other receivables that relate to the Acquired Business;
(f) all rights of the Asset Sellers relating to deposits and prepaid expenses, claims for refunds (excluding Tax refunds) and rights to offset in respect thereofsublessee, in each case as of the Closing Date, including lease and rental payments, to the extent relating to the Acquired Business;
(g) all of the Asset Sellers' causes of action against third parties relating to the Transferred Assets or any Assumed Liability, including rights under manufacturers' and vendors' warranties;
(h) all Fasco Intellectual Property;
(i) all other proprietary rights and intangible which property rights relating to the Acquired Business that are transferable;
(j) all transferable licenses, permits or other governmental authorizations is used in the conduct of the operation of Business by New Image and the Acquired BusinessAllied Practices, together with all other buildings, fixtures and improvements thereon, and all rights, privileges, permits and easements appurtenant thereto;
(kb) Practice Management Agreements with the Allied Practices, all booksContracts by which New Image acquired the Allied Practices, recordsall Contracts entered into in connection with the acquisition of the Allied Practices and the execution of Practice Management Agreements, files all Contracts relating to an Allied Practice to which New Image is a party or in which New Image is named as a third party beneficiary, and papersall other Contracts relating to the conduct of the Business by New Image and the Allied Practices;
(c) Instruments, whether in hard copy or computer formatequipment, machinery, furniture, fixtures and fittings, tools and other similar items of tangible personal property used in the conduct of the operation of Business by New Image and the Acquired Business, including engineering information, sales and promotional literature, catalogs, manuals and data, sales and purchase correspondence, lists of present and former suppliers, lists of present and former customers, personnel and employment records and copies of any information relating to Taxes imposed on the Acquired BusinessAllied Practices;
(ld) all computer source codesInventories of orthodontic and other supplies, programsjanitorial and office supplies, software maintenance and datashop supplies, including all machine readable codeand other similar items of tangible personal property that are used by New Image and the Allied Practices in the conduct of the Business, printed listings of code, documentation provided that this Agreement shall not constitute an agreement to transfer any drugs or other controlled substances which may not legally be transferred to Buyer;
(e) Books and related property and information, owned by the Asset Sellers and records used in the conduct of the Business, including without limitation, all credit records, payroll records, computer records, computer programs, contracts, agreements, operating manuals, schedules of assets, correspondence, books of account, files, papers, books and all other public and confidential business records, whether such records are in hard copy form or are electronically or magnetically stored, or whether such records are located at a Facility;
(f) Licenses in favor of New Image or the Allied Practices that are used in or necessary for the conduct of the Business, provided that the Licenses shall not include any Licenses which by their terms may not lawfully be transferred to Buyer;
(g) The right to receive mail and other communications addressed to New Image or the Allied Practices insofar as such mail or other communication relates to the operation of the Acquired Business after the Closing or the Transferred Assets or Assumed Liabilities hereunder;
(h) Intellectual Property Assets used in the conduct of the Business by New Image and the Allied Practices, including without limitation the name "New Image Orthodontic Group" and all variations thereof;
(i) Warranties which New Image has received from third parties with respect to the Transferred Assets, including, but not limited to, such warranties as are set forth in any lease agreement, equipment purchase agreement, consulting agreement or agreement for architectural and engineering services, all claims, choses in action, rights of recovery, rights of set-off, rights to refunds, and similar rights, and the like made by New Image on its behalf or on behalf of an Allied Practice in the conduct of the Business;
(mj) all insurance benefitsAll assets constituting working capital, including rights and proceedswhether cash, cash equivalents, securities, advance payments, prepayments, prepaid expenses, deposits or other current assets (other than cash held in the Cafeteria Plan Account as provided in Section 1.2(b));
(k) All accounts receivable recorded by New Image, whether for its account or the accounts of the Allied Practices, from Allied Practices, or patients or other third parties (whether or not billed), arising from or relating to in connection with the Assumed Liabilities or any loss or damage with respect to conduct of the other Transferred Assets occurring prior to Business by New Image and the ClosingAllied Practices;
(nl) all goodwill associated All telephone numbers used in connection with the Acquired Business, including that arising out of or associated with any of the Fasco Intellectual Propertyall extensions thereto; and
(om) The goodwill of the tools and dies located at Tecumseh's Paris, Tennessee facility used to produce or manufacture components, materials, supplies and other products for the Acquired Business, including the items listed on Schedule 1.2.1(o).
Appears in 1 contract
Transferred Assets. Upon On the terms and subject to the conditions contained hereinset forth in this Agreement, on at the Closing DateClosing, Tecumseh shallthe Sellers shall sell, convey, assign, transfer and deliver, or shall cause to be sold, conveyed, assigned, transferred or delivered, and shall cause the Asset Sellers to, sell, convey, assign, transfer and deliver, to the Purchaser (or upon the Purchaser's request, to one or more wholly-owned subsidiaries of the Purchaser as designated by the Purchaser), free and clear of all Liens, except for Permitted ExceptionsBuyer, and the Purchaser Buyer shall purchase, acquire and accept from the Asset Sellers, free and clear of all Liens except for Permitted Liens, all of the assetsSellers’ right, propertiestitle and interest in, rights, licenses, Contracts (or portions thereof or rights thereunder) to and businesses, of every kind under the assets and description, wherever located, whether real, personal or mixed, tangible or intangible, that are owned, leased or licensed by the Asset Sellers and used in the conduct properties of the operation of Sellers primarily related to, or primarily used or primarily held for use in connection with, the Acquired Business by Business, including the Asset Sellers following assets and properties as the same shall exist on as of the Closing Date(all of such assets and properties being sold, conveyed, assigned, transferred or delivered are referred to herein collectively as the “Transferred Assets”):
(i) the owned real property listed in Section 2.01(a)(i) of the Disclosure Schedule (the “Owned Real Property”), and, subject to Section 2.02, all rights and benefits of the Sellers under the leases governing the leased real property listed in Section 2.01(a)(i) of the Disclosure Schedule (the “Leased Real Property”), together in each case with the Sellers’ right, title and interest in, to and under all structures, facilities or improvements currently or as of the Closing Date located thereon, including those structures, facilities and improvements listed in Section 2.01(a)(i) of the Disclosure Schedule, and all easements, licenses, rights and appurtenances related to the foregoing;
(ii) all finished goods, packaging materials and products for repacking operations, supplies and other inventories (including inventory located in vending equipment) primarily related to, or primarily used or primarily held for use in connection with, the Business, including those listed in Section 2.01(a)(ii) of the Disclosure Schedule;
(iii) all cold drink equipment and vending equipment primarily related to, or primarily used or primarily held for use in connection with, the Business, which equipment shall include all Transferred Fountain Equipment (collectively, the “Subject Equipment”), including the equipment described on Section 2.01(a)(iii) of the Disclosure Schedule;
(iv) all personal property owned by the Sellers and their interests therein primarily related to, or primarily used or primarily held for use in connection with, the Business, including the machinery, equipment (other than the Subject Equipment), furniture, furnishings, office equipment, communications equipment, forklifts, motorized vehicles, warehousing vehicles, trailers, spare and replacement parts, fuel, pre-mix and post-mix equipment and coolers, special event trailers, tools, beverage display and end aisle racks and advertising signs (illuminated and nonilluminated), point of sale materials and other tangible personal property (the “Tangible Personal Property”), including (A) those motorized vehicles, trailers, forklifts and warehousing vehicles listed on Section 2.01(a)(iv)-1 of the Disclosure Schedule and (B) those other items of personal property listed in Section 2.01(a)(iv)-2 of the Disclosure Schedule;
(v) subject to Section 2.02 and other than any Excluded Contracts, and except for any and all rights under any bottling, manufacturing, distribution, sales or other related contract or agreement for any TCCC brands and any of the goodwill and other intangible rights or assets shown associated therewith, all rights under (A) the Material Contracts set forth on Section 3.12(a) of the Balance Sheet of such Asset Seller Disclosure Schedule, (B) those contracts and not disposed of agreements primarily entered into in connection with the Business in the ordinary course of business consistent with past practice as permitted by this Agreement, and all assets that are not Material Contracts required to be disclosed on Section 3.12(a) of the Acquired Business acquired by Disclosure Schedule or that are entered into between the Asset Sellers after date hereof and the Balance Sheet Closing Date in accordance with Section 5.01 that would not be required to be so disclosed on Section 3.12(a) of the Disclosure Schedule had such contracts or agreements been in existence as of the date hereof, (C) any contract or agreement entered into between the date hereof and the Closing Date in accordance with Section 5.01 which, had such contract or agreement been entered into prior to the date hereof, would have been a Material Contract required to be set forth on Section 3.12(a) of the Disclosure Schedule (each, a “Pre-Closing as permitted by this Agreement Material Contract”) and (D) any Shared Contract, to the extent assigned to the Buyer pursuant to a Partial Assignment and Release under Section 5.17 (collectively, the "Transferred Assets"“Assumed Contracts”), including all right, title and interest of the Asset Sellers in, to and under:;
(avi) subject to Section 2.02 and to the extent transferable, all personal property Material Permits, Environmental Permits and interests thereinall other licenses, including machinery, equipment, dies, tooling, molds, supplies, furniture, office equipment, software, communications equipment, vehicles, storage tanks, spare and replacement parts, fuel permits and other tangible personal property governmental authorizations primarily related to, or primarily used or primarily held for use in connection with, the conduct of the operation of the Acquired Business, including those listed in Section 2.01(a)(vi) of the items listed on Schedule 1.2.1(a)Disclosure Schedule;
(b) all raw materials, work-in-process, finished goods (including those in transit), supplies, components, service and replacement parts and other inventories used or held for resale in the conduct of the operation of the Acquired Business, together with related packaging materials;
(c) subject to Section 1.2.5, all rights under Contracts that relate to the Acquired Business (the "Assumed Contract Rights") listed on Schedule 1.2.1(c);
(dvii) the owned and leased real property listed on Schedule 1.2.1(d);
(e) all accounts, drafts, notes and other receivables that relate to the Acquired Business;
(f) all rights of the Asset Sellers relating to deposits and prepaid expenses, claims for refunds (excluding Tax refunds) and rights to offset in respect thereof, in each case as of the Closing Date, including lease and rental payments, to the extent relating to the Acquired Business;
(g) all of the Asset Sellers' causes of action against third parties relating to the Transferred Assets or any Assumed Liability, including rights under manufacturers' and vendors' warranties;
(h) all Fasco Intellectual Property;
(i) all other proprietary rights and intangible property rights relating to the Acquired Business that are transferable;
(j) all transferable licenses, permits or other governmental authorizations used in the conduct of the operation of the Acquired Business;
(k) all original books, records, files and papers, whether in hard copy or computer format, used in the conduct of the operation of the Acquired Business, including engineering information, sales and promotional literature, catalogs, manuals and data, sales and purchase correspondence, lists of present quality control records and former suppliersprocedures, lists of present customers, customer records and, as and former customersto the extent provided in the Employee Matters Agreement, personnel and employment records and records, in each case, related to, or primarily used or primarily held for use in connection with, the Business, provided that the Sellers shall retain copies of any information relating each of the foregoing, and provided, further, that if the Sellers are required by Law to Taxes imposed on retain the Acquired Businessoriginals of such books, records, files and papers, they may do so and in such case they will provide the Buyer with copies thereof;
(lviii) all computer source codesthe deposits, programsadvances, software lease and datarental expenses, including all machine readable codepre-paid expenses, printed listings of codedeferred charges, documentation accrued rebates and related property credits and information, owned by similar items set forth on the Asset Sellers Final Amounts Schedule and used which are not included in the conduct of the operation of the Acquired BusinessRetained Assets;
(mix) the licensed Intellectual Property listed in Section 2.01(a)(ix) of the Disclosure Schedule (collectively, the “Transferred Licensed Intellectual Property”), which Transferred Licensed Intellectual Property, for purposes of clarity, shall not include any ownership or other proprietary interest in any Intellectual Property of the Sellers or their Affiliates (including TCCC) not specifically set forth on Section 2.01(a)(ix) of the Disclosure Schedule or any goodwill or other intangible rights or assets relating to or associated with the Intellectual Property of the Sellers or their Affiliates (including TCCC);
(x) the exclusive right for the Buyer to hold itself out as the purchaser of the Business (subject to the limitations set forth in Section 5.12 and Section 10.03), provided that such rights shall not be deemed to include any Intellectual Property (other than the Transferred Licensed Intellectual Property) of the Sellers or their Affiliates (including TCCC);
(xi) all casualty insurance benefits, including rights and proceedsif any, arising from or to the extent relating to the Assumed Liabilities or any loss or damage events occurring with respect to the other Transferred Assets occurring prior to the Closing;
(nxii) all goodwill associated with of the Acquired Sellers’ rights under warranties, indemnities and all similar rights against third parties to the extent related to any Transferred Assets;
(xiii) subject to Section 2.01(b)(vi), all Tax Returns related solely to the Business or the Transferred Assets;
(xiv) all rights to causes of action, lawsuits, judgments, claims and demands of any nature available to or being pursued by the Sellers, whether arising by way of claim, counterclaim or otherwise, in each case, primarily related to the Business, including that arising out of the Transferred Assets or associated with any the Assumed Liabilities;
(xv) all xxxxx cash used in the Business, as identified on the relevant balance sheet;
(xvi) those assets of the Fasco Intellectual PropertyBusiness included within Net Working Capital or Other Assets and Liabilities which are reflected as assets on the Final Amounts Schedule and which are not Retained Assets, but only to the extent of the amounts so included; and
(oxvii) the tools and dies located at Tecumseh's Paris, Tennessee facility used to produce or manufacture components, materials, supplies rights and other products for assets listed in Section 2.01(a)(xvii) of the Acquired Business, including the items listed on Schedule 1.2.1(o)Disclosure Schedule.
Appears in 1 contract
Samples: Asset Purchase Agreement (Coca Cola Bottling Co Consolidated /De/)
Transferred Assets. Upon On the terms and subject to the conditions contained hereinset forth in this Agreement, on at the Closing DateClosing, Tecumseh Instrumentarium shall, and shall cause the other Asset Sellers to, sell, convey, assign, transfer and deliver, or shall cause to be sold, conveyed, assigned, transferred or delivered, and shall cause the Asset Sellers to, sell, convey, assign, transfer and deliver, to the Purchaser (or upon the Purchaser's request, to one or more wholly-owned subsidiaries of the Purchaser as designated by the Purchaser)Acquiror, free and clear of all Liens, except for Permitted ExceptionsLiens, and the Purchaser Acquiror shall purchase, acquire and accept from Instrumentarium and the Asset Sellers, all of the assets, properties, rights, licenses, Contracts (or portions thereof or rights thereunderto the extent assignable) and businesses, of every kind and description, wherever located, whether real, personal or mixed, tangible or intangible, that are owned, leased or licensed by the Asset Sellers and used in the conduct of the operation of the Acquired Business by the Asset Sellers as the same shall exist currently conducted and as conducted on the Closing Date, including all assets shown on the Balance Sheet Reference Statement of such Asset Seller Working Capital and not disposed of in the ordinary course of business consistent with past practice as permitted by this Agreement, and all assets used in the conduct of the Acquired operation of the Business acquired by the Asset Sellers after the Balance Sheet Date date of the Reference Statement of Working Capital and prior to the Closing as permitted by this Agreement (collectively, the "“Transferred Assets"”). Without limiting the generality of the foregoing, including the Transferred Assets shall include all right, title and interest of the Asset Sellers in, to and under:
(ai) all tangible personal property property, furniture and fixtures and interests therein, including machinery, equipment, dies, tooling, molds, supplies, furniture, office equipment, software, communications equipment, vehicles, storage tanks, spare and replacement parts, fuel and other tangible personal property therein used or held for use in the conduct of the operation of the Acquired Business, including the items listed on Schedule 1.2.1(a)in Section 2.02(a)(i) of the Disclosure Schedule;
(bii) all raw materials, work-in-process, finished goods (including those in transit), supplies, components, service supplies and replacement parts and other inventories used or held for resale in the conduct of the operation of the Acquired Business, together with related packaging materials;
(ciii) subject to Section 1.2.5, (A) all Contracts of the Asset Sellers (and all rights under Contracts thereunder) that relate to the Acquired Business Business, including the items listed in Section 2.02(a)(iii) of the Disclosure Schedule and (B) those Contracts of the "Assumed Contract Rights") listed on Schedule 1.2.1(c)Asset Sellers entered into by the Asset Sellers in the ordinary course of business consistent with past practice from the date of this Agreement to the Closing Date;
(div) the owned and leased real property leases used in the conduct of the operation of the Business listed on in Section 2.02(a)(iv) of the Disclosure Schedule 1.2.1(d)and all improvements thereto;
(ev) all accounts, drafts, notes and other receivables that relate to the Acquired Business;
(fvi) all rights of expenses that have been prepaid by the Asset Sellers relating to deposits and prepaid expenses, claims for refunds (excluding Tax refunds) and rights to offset in respect thereof, in each case as of the Closing Date, including lease and rental payments, to the extent relating to the Acquired Business, including ad valorem Taxes and lease and rental payments;
(gvii) all of the Asset Sellers' ’ causes of action against third parties relating to the Transferred Assets or any Assumed Liability, including unliquidated rights under manufacturers' ’ and vendors' ’ warranties;
(hviii) all Fasco rights of the Asset Sellers in the Business Intellectual Property, including the right to recover for past damages arising from infringement of the Business Intellectual Property;
(i) all other proprietary rights and intangible property rights relating to the Acquired Business that are transferable;
(jix) all transferable licenses, permits or other governmental authorizations used in the conduct of the operation of the Acquired Business;
(kx) all books, records, files and papers, whether in hard copy or computer format, used in the conduct of the operation of the Acquired Business, including engineering information, financial and accounting records, marketing plans and market research, sales and promotional literature, catalogs, manuals and data, sales and purchase correspondence, lists of present and former suppliers, lists of present and former customers, personnel and employment records and copies of any information relating to Taxes imposed on the Acquired Business;
(lxi) all computer source codes, programs, software and data, including all machine readable code, printed listings of code, documentation and related property and information, data owned by the Asset Sellers and used in the conduct of the operation of the Acquired Business;; and
(m) all insurance benefits, including rights and proceeds, arising from or relating to the Assumed Liabilities or any loss or damage with respect to the other Transferred Assets occurring prior to the Closing;
(nxii) all goodwill associated with the Acquired BusinessTransferred Assets. Notwithstanding the foregoing, including that arising out of or associated with any the Business Intellectual Property being transferred to the Acquiror pursuant to Section 2.02(viii) shall include all Business Intellectual Property described in clause (b) of the Fasco Intellectual Property; and
(o) the tools definitions of each of “Business Copyrights” and dies located at Tecumseh's Paris, Tennessee facility used to produce or manufacture components, materials, supplies and other products for the Acquired Business, including the items listed on Schedule 1.2.1(o)“Business Technology.”
Appears in 1 contract
Samples: Purchase Agreement (Osi Systems Inc)
Transferred Assets. Upon For the terms consideration hereinafter provided and subject to in reliance upon the conditions contained representations and warranties of the parties set forth herein, on the Closing DateSeller hereby sells, Tecumseh shalltransfers, or shall cause conveys and assigns to be sold, conveyed, assigned, transferred or deliveredBuyer, and shall cause the Asset Sellers to, sell, convey, assign, transfer and deliver, to the Purchaser (or upon the Purchaser's request, to one or more wholly-owned subsidiaries of the Purchaser as designated by the Purchaser), free and clear of all Liens, except for Permitted Exceptions, and the Purchaser shall purchase, acquire and accept Buyer hereby purchases from the Asset SellersSeller, all of the assetsSeller's assets and businesses which are related to, propertiesused in, rights, licenses, Contracts (necessary for or portions thereof or rights thereunder) and businesses, of every kind and description, wherever located, whether real, personal or mixed, tangible or intangible, that are owned, leased or licensed by the Asset Sellers and used in the conduct of contribute to the operation of the Acquired Facility Business by (whether within, adjacent to or completely outside and removed from the Asset Sellers as the same shall exist on the Closing Date, including all assets shown on the Balance Sheet of such Asset Seller and not disposed of in the ordinary course of business consistent with past practice as permitted by this Agreement, and all assets of the Acquired Business acquired by the Asset Sellers after the Balance Sheet Date and prior to the Closing as permitted by this Agreement Facility) (collectively, the "Transferred Assets"), including, without limiting the generality of the foregoing, the following assets (but excluding all Retained Assets):
(a) The surface estate of the real property owned by Seller upon which the Facility is situated (including the real property on which the correctional facility known as "Xxxxxxx County Correctional Facility" is located), together with all structures, construction work-in-progress, buildings and other improvements thereon, and any and all of Seller's rights, privileges and easements appurtenant thereto (collectively, the "Real Property"), all of which Real Property is identified on Schedule 1.1(a).
(b) All equipment and other tangible personal property related to the Facility Business owned by Seller.
(c) All inventories of supplies, food, janitorial, medical supplies and office supplies, maintenance and shop supplies and other disposables related to the Facility Business which are existing as of the Closing and which are not obsolete (the "Inventory").
(d) To the extent lawfully transferable, all accreditations, registrations, licenses, permits and other governmental consents or approvals necessary to or intended for the operation of the Facility Business as presently conducted by Seller.
(e) All advance payments, prepayments, prepaid expenses, deposits and the like related to the Facility Business (the "Prepaids"), the categories and amounts as of the date hereof are set forth on Schedule 1.1(e).
(f) To the extent lawfully transferable, all of Seller's right, title and interest of in and to any and all business names, marks and logos now or ever used by Seller in connection with the Asset Sellers in, to Facility Business and under:
any and all names and logos under which Seller (ain connection with the Facility Business) all personal property and interests therein, including machinery, equipment, dies, tooling, molds, supplies, furniture, office equipment, software, communications equipment, vehicles, storage tanks, spare and replacement parts, fuel and other tangible personal property used or held for use in the conduct of the operation of the Acquired Business, including the items listed on Schedule 1.2.1(a);
(b) all raw materials, work-in-process, finished goods (including those in transit), supplies, components, service and replacement parts and other inventories used any Facility Business has ever done business or held for resale in the conduct of the operation of the Acquired Businessoffered programs, together with related packaging materials;
(c) subject all abbreviations and variations thereof and all applications and registrations relating to Section 1.2.5any of the foregoing, all rights under Contracts that relate to including, without limitation, the Acquired Business (the "Assumed Contract Rights") listed business names and logos set forth on Schedule 1.2.1(c1.1(f);
(d) , and all goodwill associated therewith and with the owned and leased real property listed on Schedule 1.2.1(d);
(e) all accounts, drafts, notes and other receivables that relate to the Acquired Facility Business;
(f) all rights of the Asset Sellers relating to deposits and prepaid expenses, claims for refunds (excluding Tax refunds) and rights to offset in respect thereof, in each case as of the Closing Date, including lease and rental payments, to the extent relating to the Acquired Business;.
(g) all of the Asset Sellers' causes of action against All unexpired warranties and covenants that are transferable to Buyer, which Seller has received from third parties relating with respect to the Transferred Assets Assets, including, without limitation, such warranties and covenants as are set forth in any construction agreement, lease agreement, equipment purchase agreement, consulting agreement, agreement for architectural and engineering services or any Assumed Liability, including rights under manufacturers' purchase and vendors' warranties;sale agreement.
(h) all Fasco Intellectual Property;All records relating to the operation or management of the Facility.
(i) All materials, documents, information, media, methods, processes, inventions and technology owned by Seller related to the Facility Business (except those that are privileged or proprietary and are not used in or necessary for the business) and any and all other rights to use the same, including, but not limited to, all telephone numbers, intangible assets of an intellectual property nature, all proprietary rights computer software, all clinical and intangible property rights policy and procedure manuals and all promotional, marketing and recruiting materials, and all applications or registrations relating to any of the Acquired Business that are transferable;foregoing.
(j) Any and all transferable licensesrights respecting computer and data processing hardware that is related to the Facility Business, permits and any computer and data processing hardware, whether or other governmental authorizations not located at the Facility, that is part of a computer system used in the conduct by any of the operation of Facility Business, whether or not the Acquired Business;central processing unit for such system is located at the Facility.
(k) To the extent they may be legally conveyed, all booksof Seller's right, records, files title and papers, whether interest in hard copy or computer format, used in the conduct of the operation of the Acquired Business, including engineering information, sales and promotional literature, catalogs, manuals and data, sales and purchase correspondence, lists of present and former suppliers, lists of present and former customers, personnel and employment records and copies of any information relating to Taxes imposed on the Acquired Business;
(l) all computer source codes, programs, software and data, including all machine readable code, printed listings of code, documentation and related property and information, owned by the Asset Sellers and used in the conduct of the operation of the Acquired Business;
(m) all insurance benefits, including rights and proceeds, arising from or Inmate Contracts relating to the Assumed Liabilities or any loss or damage with respect to housing of inmates at the other Transferred Assets occurring prior to the Closing;
(n) all goodwill associated with the Acquired Business, including that arising out of or associated with any of the Fasco Intellectual Property; and
(o) the tools and dies located at Tecumseh's Paris, Tennessee facility used to produce or manufacture components, materials, supplies and other products for the Acquired Business, including the items listed on Schedule 1.2.1(o)Facility.
Appears in 1 contract
Samples: Asset Purchase Agreement (Correctional Services Corp)
Transferred Assets. Upon Subject to and upon the terms and subject to conditions set forth in this Master Agreement, at the conditions contained hereinClosing, on the Closing Date, Tecumseh Xxxxxx shall, or shall cause to be sold, conveyed, assigned, transferred or delivered, and shall cause the Asset other Sellers to, sell, convey, assign, transfer transfer, convey and deliverdeliver to Buyer (or, as to certain assets selected by Buyer, at Buyer's written request to Xxxxxx five (5) Business Days prior to the Closing Date, to the Purchaser (or upon the Purchaser's request, to one or more wholly-owned subsidiaries of the Purchaser as designated by the PurchaserParent), free and clear Buyer and Parent shall purchase and acquire from each Seller, all right, title and interest of all Liens, except for Permitted Exceptions, each Seller in and the Purchaser shall purchase, acquire and accept from the Asset Sellers, to all of the properties, assets, properties, rights, licenses, Contracts contracts and rights constituting or primarily used or held primarily for use in the Business (or portions thereof or rights thereunder) and businesses, of every kind and descriptionother than the Excluded Assets), wherever locatedsuch assets, properties and rights are located and whether such assets are real, personal or mixed, tangible or intangible, that are ownedmatured or unmatured, leased known or licensed by the Asset Sellers unknown, contingent or fixed, and used in the conduct of the operation of the Acquired Business by the Asset Sellers as the same shall exist on the Closing Date, including all assets shown on the Balance Sheet whether or not any of such Asset Seller and not disposed of assets have any value for accounting purposes or are carried or reflected on or specifically referred to in the ordinary course of business consistent with past practice as permitted by this Agreement, and all assets of the Acquired Business acquired by the Asset Sellers after the Balance Sheet Date and prior to the Closing as permitted by this Agreement Sellers' books or financial statements (collectively, the "Transferred Assets"), including including, without limitation, the assets listed below (as listed below, the Transferred Assets include properties, contracts, rights and assets owned by the Transferred Subsidiaries and all rightsuch properties, title contracts, rights and interest assets shall be transferred indirectly by transferring the capital stock of the Asset Sellers in, to and under:Transferred Subsidiaries):
(a) all personal property of the Fixed Assets described on Schedule 2.1(a);
(b) all of the Owned Real Estate;
(c) the assets and rights conveyed pursuant to the terms of the IP Transfer Agreements;
(d) all ownership interests thereinin the Transferred Subsidiaries listed on Schedule 2.1(d);
(e) all of the Assumed Contract Obligations, including machinerythose under the Material Contracts listed on Schedule 4.11;
(f) all inventory, equipmentwherever located (including inventory in transit), diesincluding, toolingwithout limitation, moldsall the raw materials, work in process, recycled materials, finished products, supplies, furniture, office equipment, software, communications equipment, vehicles, storage tanks, and spare parts located at the Manufacturing Facilities or elsewhere and replacement parts, fuel and other tangible personal property primarily used or held primarily for use in the conduct of the operation of the Acquired Business, including items of the items listed on Schedule 1.2.1(a);
(b) all raw materials, work-in-process, finished goods (including those in transit), supplies, components, service type and replacement parts and other inventories used or held for resale nature of the materials identified as inventory in the conduct of the operation of the Acquired Business, together with related packaging materials;
(c) subject to Section 1.2.5, all rights under Contracts that relate to the Acquired Business (the "Assumed Contract Rights") listed on Schedule 1.2.1(c);
(d) the owned and leased real property listed on Schedule 1.2.1(d);
(e) all accounts, drafts, notes and other receivables that relate to the Acquired Business;
(f) all rights of the Asset Sellers relating to deposits and prepaid expenses, claims for refunds (excluding Tax refunds) and rights to offset in respect thereof, in each case as of the Closing Date, including lease and rental payments, to the extent relating to the Acquired BusinessBaseline Financial Statements;
(g) all of the Asset Sellers' causes of action against third parties relating to furniture and office equipment, including desks, tables, chairs, file cabinets and other storage devices, communications equipment, computers and office supplies which are owned or leased by a Seller and located at the Transferred Assets Facilities or any Assumed Liabilityelsewhere and that are primarily used or held primarily for use in the conduct of the Business, including rights under manufacturers' or that are in transit to or temporarily removed from a location specified above and vendors' warrantieswhich would otherwise be included among the items identified above;
(h) all Fasco Intellectual Propertyof the prepaid expenses and security deposits reflected on the Audited Closing Balance Sheet;
(i) all other proprietary rights of the Books and intangible property rights relating to the Acquired Business that are transferableRecords;
(j) to the extent their transfer is permitted by Applicable Law, all transferable licenses, permits Governmental Approvals primarily used or other governmental authorizations used held primarily for use in the conduct of Transferred Facilities or the operation of the Acquired Business, including all applications therefor;
(k) to the extent transferable, all booksrights under express or implied warranties and licenses from Sellers' suppliers (including manufacturers and distributors) with respect to the Transferred Assets and any related claims, recordscredits, files rights of recovery and papers, whether in hard copy or computer format, used in the conduct of the operation of the Acquired Business, including engineering information, sales and promotional literature, catalogs, manuals and data, sales and purchase correspondence, lists of present and former suppliers, lists of present and former customers, personnel and employment records and copies of any information relating set-off with respect to Taxes imposed on the Acquired Businesssuch items;
(l) all computer source codesrights to causes of action, programslawsuits, software claims and datademands of any nature available to the Business Entities that relate primarily to the Transferred Assets (it being understood that Buyer's rights to causes of action, lawsuits, claims and demands in respect of Patents and Intangible Property Rights are governed by the IP Transfer Agreements) or the Assumed Liabilities;
(m) to the extent transferable, all guarantees, warranties, indemnities and similar rights in favor of Sellers in connection with the Transferred Assets and any related claims, credits, rights of recovery and set-off with respect thereto;
(n) the Policies;
(o) all of the Leased Real Estate, except for the Retained Leased Real Estate;
(p) all of the motor vehicles, whether or not licensed or registered to operate on public highways, including automobiles, trucks, self-propelled carts, and other motorized lifting, material handling or transporting equipment and all machine readable codespare parts, printed listings of codefuel and other supplies, documentation tools and related property other items used in the operation or maintenance thereof which are owned or leased by a Seller and information, owned by located at the Asset Sellers Transferred Facilities or elsewhere and which are primarily used or held for use primarily in the conduct of the operation of Business, or which are in transit to or temporarily removed from a location specified above and which would otherwise be included among the Acquired Businessitems described above;
(mq) all rights of the Business Entities to any insurance benefits, including rights and proceeds, arising from or proceeds relating to the Assumed Liabilities damage, destruction or any loss impairment of assets or damage with respect to the other rights described in this Section 2.1 which would have been Transferred Assets occurring but for such damage, destruction or impairment prior to the Closing;
(nr) all goodwill associated assets (other than Excluded Assets) reflected in the April 2, 1999 balance sheet which is included in the Baseline Financial Statements, together with all replacements thereof, all expansions, enhancements and modifications thereto and all assets (other than Excluded Assets) of like character that have been or are acquired by the Acquired Business Entities subsequent to such balance sheet date and on or prior to the Closing Date, primarily for use in the Business, including that arising out except to the extent such assets have been disposed of in the ordinary course of business on or associated with any after such date;
(s) foreign currency xxxxxx related primarily to the operations of the Fasco Intellectual PropertyBusiness;
(t) all the items, if any, listed on Schedule 2.1(t);
(u) unrestricted cash on deposit in the United States, as of the close of business on the Closing Date, in the amount of $2,000,000;
(v) [RESERVED]; and
(ow) cash (to be transferred to Buyer at the tools and dies located at Tecumseh's Paristime other assets of Xxxxxx Semiconductor GmbH (Germany) are transferred to Buyer) in Germany in an amount equivalent to the amount accrued as of the Closing Date, Tennessee facility used to produce or manufacture componentsas reflected in the Audited Closing Balance Sheet, materials, supplies and other products for the Acquired Business, all German pension obligations including the items listed that disclosed on Schedule 1.2.1(o4.18.2 and unrestricted cash in the United States in an amount equivalent to the amount accrued as of the Closing Date, as reflected in the Audited Closing Balance Sheet, for obligations with respect to Transferred Employees, whether based inside or outside the United States, under Xxxxxx' supplemental employee retirement plan. In addition to the foregoing, Sellers shall sublease to Buyer all or such portions of the Retained Leased Real Estate as Sellers and Buyer may mutually agree in writing upon prior to the Closing (all of such subleased real estate, the "Subleased Real Estate") under and pursuant to subleases in form and substance mutually acceptable to Sellers and Buyer (collectively, the "Subleases") and, except where specifically excluded, as used herein the term "Transferred Assets" includes the Subleased Real Estate. The assets to be acquired by Parent shall consist of the Intellectual Property as may be specified in accordance with Section 2.1, and if the fair market value of the Intellectual Property shall be less than ninety million dollars ($90,000,000), with such difference in value being called the Parent Additional Assets Value, the Parent will acquire additional Transferred Assets having an aggregate fair market value equal to the Parent Additional Assets Value. The assets acquired by Parent (other than certain Intellectual Property determined by Parent) shall be transferred by Parent to Buyer as a capital contribution immediately following the Closing, and Parent hereby directs that Xxxxxx transfer at Closing such assets directly to Buyer on its behalf. All other Transferred Assets shall be acquired directly by Buyer from Xxxxxx. Buyer shall be permitted to have the acquisition of any Transferred Subsidiary not formed or incorporated in a state of the United States to be made by a wholly-owned subsidiary of Buyer incorporated under the laws of any jurisdiction, including, but not limited to, the laws of Malaysia.
Appears in 1 contract
Transferred Assets. Upon the terms and subject to the conditions contained hereinset forth in this Agreement, on at the Closing DateClosing, Tecumseh shallSeller and Selling Subsidiary shall (and, or where applicable, shall cause to be sold, conveyed, assigned, transferred or delivered, and shall cause the Asset Sellers their respective Subsidiaries to, ) sell, conveytransfer, assign, transfer convey and deliver, deliver to the Purchaser (Buyer or upon the Purchaser's request, to one or more wholly-owned subsidiaries of the Purchaser as designated by the Purchaser), free and clear of all Liens, except for Permitted Exceptionsits Subsidiaries, and the Purchaser Buyer shall (and, where applicable, shall cause its Subsidiaries to) purchase, acquire and accept from the Asset SellersSeller, Selling Subsidiary and their respective Subsidiaries, all right, title and interest of Seller, Selling Subsidiary and their respective Subsidiaries in, to and under (a) all of the assets, properties, properties and rights (including contractual rights, licenses, Contracts (or portions thereof or rights thereunder) and businesses, of every kind and description, wherever located, whether real, personal or mixed, tangible or intangible, that are ownedwherever located, leased and whether or licensed by not reflected on the Asset Sellers financial statements or other books and records of Seller or any of its Subsidiaries, exclusively used in the conduct Business as it is operated by Seller and its Subsidiaries as of the operation of the Acquired Business by the Asset Sellers as the same shall exist date hereof and on the Closing Date, including all assets shown on the Balance Sheet of such Asset Seller and not disposed of in the ordinary course of business consistent with past practice as permitted by this Agreement, and all assets of the Acquired Business acquired by the Asset Sellers after the Balance Sheet Date and prior to (b) the Closing as permitted by this Agreement Transferred PCIe Assets (collectively, the "“Transferred Assets"”), including free and clear of all rightLiens. Notwithstanding anything to the contrary in this Agreement, title the phrase “used exclusively” (or similar references), when used with respect to the Business, the Business Products, or the Transferred PCIe Assets, shall mean used exclusively with respect to all (or any subset of) the Business, the Business Products, and/or the Transferred PCIe Assets collectively as a whole. For the avoidance of doubt, (X) no asset of Seller or its Subsidiaries shall be excluded from the Transferred Assets because it is used in both the Business and interest in Seller’s or its Subsidiaries’ PCIe Switches or PCIe Retimers and (Y) if an asset of Seller or its Subsidiaries is used in both the Business and in Seller’s or its Subsidiaries’ PCIe Switches or PCIe Retimers (but in no other businesses, products or services of Seller or its Subsidiaries), then such asset would be deemed to be used exclusively in the Business and used exclusively with respect to the Transferred PCIe Assets. Without limiting the generality of the Asset Sellers inforegoing, the Transferred Assets shall include the following, whether or not any of such assets, properties or rights have any value for accounting purposes or are carried or reflected on or specifically referred to and underin Seller’s or any Affiliate of Seller’s financial statements:
(a) all personal property and interests therein, including machinery, equipment, dies, tooling, molds, supplies, furniture, office equipment, software, communications equipment, vehicles, storage tanks, spare and replacement parts, fuel and other tangible personal property used or held for use in the conduct of the operation of the Acquired Business, including the items listed on Schedule 1.2.1(a)Business Products;
(b) all raw materials, work-in-process, finished goods (including those in transit), supplies, components, service and replacement parts and other inventories used or held for resale in the conduct of the operation of the Acquired Business, together with related packaging materialsTransferred Tangible Property;
(c) subject to Section 1.2.5, all rights under Contracts that relate to the Acquired Business (the "Assumed Contract Rights") listed on Schedule 1.2.1(c)Transferred Inventory;
(d) the owned and leased real property listed on Schedule 1.2.1(d)all Transferred IP;
(e) all accounts, drafts, notes and other receivables that relate to the Acquired BusinessTransferred Leases;
(f) all rights of the Asset Sellers relating to deposits and prepaid expenses, claims for refunds (excluding Tax refunds) and rights to offset in respect thereof, in each case as of the Closing Date, including lease and rental payments, to the extent relating to the Acquired BusinessTransferred Contracts;
(g) all of the Asset Sellers' causes of action against third parties relating to the Transferred Assets or any Assumed Liability, including rights under manufacturers' and vendors' warrantiesPermits;
(h) all Fasco Intellectual PropertyTransferred Books and Records;
(i) all other proprietary rights and intangible property rights relating to the Acquired Business that are transferableTransferred Claims;
(j) all transferable licenses, permits or other governmental authorizations used in the conduct of the operation of the Acquired Business;assets set forth on Schedule 1.1(j); and
(k) copies of all books, records, files and papers, whether in hard copy or computer format, used in the conduct of the operation of the Acquired Business, including engineering information, sales and promotional literature, catalogs, manuals and data, sales and purchase correspondence, lists of present and former suppliers, lists of present and former customers, personnel and employment records and copies of any information relating to Taxes imposed on the Acquired Business;
(l) all computer source codes, programs, software and data, including all machine readable code, printed listings of code, documentation and related property and information, owned by the Asset Sellers and used in the conduct of the operation of the Acquired Business;
(m) all insurance benefits, including rights and proceeds, arising from or relating to the Assumed Liabilities or any loss or damage with respect to the other Transferred Assets occurring prior to the Closing;
(n) all goodwill associated with the Acquired Business, including that arising out of or associated with any of the Fasco Intellectual Property; and
(o) the tools and dies located at Tecumseh's Paris, Tennessee facility used to produce or manufacture components, materials, supplies and other products for the Acquired Business, including the items listed on Schedule 1.2.1(o)Transferred Employees.
Appears in 1 contract
Samples: Asset Purchase Agreement (Integrated Device Technology Inc)
Transferred Assets. Upon On or prior to the Closing Date, the Selling Members shall cause Gage to assign and transfer to the Company, and the Company hereby agrees to accept and assume from Gage, on the terms and subject to the conditions contained herein, on the Closing Date, Tecumseh shall, or shall cause to be sold, conveyed, assigned, transferred or delivered, and shall cause the Asset Sellers to, sell, convey, assign, transfer and deliver, to the Purchaser (or upon the Purchaser's request, to one or more wholly-owned subsidiaries of the Purchaser as designated by the Purchaser), free and clear of all Liens, except for Permitted Exceptions, and the Purchaser shall purchase, acquire and accept from the Asset Sellersset forth in this Section, all of the assets, properties, rights, licenses, Contracts (or portions thereof or rights thereunder) and businesses, of every kind and description, wherever located, whether real, personal or mixed, tangible or intangible, that are owned, leased or licensed by the Asset Sellers and used in the conduct of the operation of the Acquired Business by the Asset Sellers as the same shall exist on the Closing Date, including all assets shown on the Balance Sheet of such Asset Seller and not disposed of in the ordinary course of business consistent with past practice as permitted by this Agreement, and all assets of the Acquired Business acquired by the Asset Sellers after the Balance Sheet Date and prior to the Closing as permitted by this Agreement (collectively, the "Transferred Assets"), including all Gage's right, title and interest in and to the following specific assets (hereinafter collectively referred to as the "Assets"):
(i) All of the Asset Sellers in, to and under:
(a) all personal property and interests therein, including machinery, equipment, dies, tooling, molds, suppliesmachinery, furniture, office equipmentfixtures, softwarefurnishings, communications equipment, vehicles, storage tanks, spare and replacement parts, fuel leasehold improvements and other tangible personal property owned by Gage and used or held for use by Gage in the conduct of the operation of the Acquired BusinessExecutional Businesses, including the including, without limitation, those items listed on Schedule 1.2.1(a)SCHEDULE 10.2 to this Agreement, but excluding the Excluded Equipment.
(ii) The real and personal property leases of Gage relating to the Executional Businesses, including those listed on SECTION 6.2(G)(III) of the Disclosure Schedule;
(biii) all All inventories of supplies, raw materials, parts, finished goods, work-in-process, finished goods product labels and packaging materials that are usable or salable by Gage in the Executional Businesses and are owned by Gage on the Closing Date, and all orders or contracts for the purchase of inventories, raw materials, parts, or supplies ordered by Gage in the Ordinary Course of the Business prior to the Closing Date;
(iv) Gage's interest in all rights and incidents of interest of Gage as of the Closing in and to all leases, licenses, agreements, proposals or other contracts or contractual rights or obligations of Gage which relate to the Executional Businesses, including without limitation those which are listed on Schedule 10.2;
(v) All rights to the Intellectual Property; provided, however, that the use of the Gage name and logo shall be used only on the terms as set forth in transitSection 10.4 hereto;
(vi) All books, records and other documents and information relating to the Assets and the Executional Businesses (other than employee personnel and payroll records), suppliesincluding, componentswithout limitation, service all customer, prospect, dealer and replacement parts distributor lists, sales literature, inventory records, purchase orders and invoices, sales orders and sales order log books, customer information, commission records, correspondence, product data, material safety data sheets, price lists, product demonstrations, quotes and bids, catalogues and brochures of every kind and nature;
(vii) Seller's right to use the telephone number currently being used at any office of the Executional Business;
(viii) All assignable permits, licenses and other inventories used or held for resale in third party approvals necessary to operate the conduct of Executional Businesses;
(ix) All prepaid expenses and deposits relating to the operation of the Acquired Business, together with related packaging materials;
(c) subject to Section 1.2.5, all rights under Contracts that relate to the Acquired Business (the "Assumed Contract Rights") listed on Schedule 1.2.1(c);
(d) the owned and leased real property listed on Schedule 1.2.1(d);
(e) all accounts, drafts, notes and other receivables that relate to the Acquired Business;
(f) all rights of the Asset Sellers relating to deposits and prepaid expenses, claims for refunds (excluding Tax refunds) and rights to offset in respect thereof, in each case as of the Closing Date, including lease and rental payments, to the extent relating to the Acquired Business;
(g) all of the Asset Sellers' causes of action against third parties relating to the Transferred Assets or any Assumed Liability, including rights under manufacturers' and vendors' warranties;
(h) all Fasco Intellectual Property;
(i) all other proprietary rights and intangible property rights relating to the Acquired Business that are transferable;
(j) all transferable licenses, permits or other governmental authorizations used in the conduct of the operation of the Acquired Business;
(k) all books, records, files and papers, whether in hard copy or computer format, used in the conduct of the operation of the Acquired Business, including engineering information, sales and promotional literature, catalogs, manuals and data, sales and purchase correspondence, lists of present and former suppliers, lists of present and former customers, personnel and employment records and copies of any information relating to Taxes imposed on the Acquired Business;
(l) all computer source codes, programs, software and data, including all machine readable code, printed listings of code, documentation and related property and information, owned by the Asset Sellers and used in the conduct of the operation of the Acquired Business;
(m) all insurance benefits, including rights and proceeds, arising from Executional Businesses or relating to the Assumed Liabilities or any loss or damage with respect to the other Transferred Assets occurring prior to the ClosingAssets;
(nx) Except as set forth in Section 10.2(b)(ii), all goodwill associated with accounts receivable and notes receivable of Gage arising in the Acquired Business, including that arising out Ordinary Course of or associated with any Business of the Fasco Intellectual Property; and
(o) the tools and dies located at Tecumseh's Paris, Tennessee facility used to produce or manufacture components, materials, supplies and other products for the Acquired Business, including the items listed on Schedule 1.2.1(o).Executional Businesses;
Appears in 1 contract
Transferred Assets. Upon Subject to the terms and subject conditions of this Agreement, the Sellers shall sell, transfer, assign and convey to the conditions contained hereinBuyer, and the Buyer shall purchase and acquire from the Sellers, on the Closing Date, Tecumseh shall, or shall cause to be sold, conveyed, assigned, transferred or delivered, and shall cause Date the Asset Sellers to, sell, convey, assign, transfer and deliverfollowing (the “Transferred Assets”):
(a) The Sellers’ rights in, to and under the Purchaser (or upon the Purchaser's request, to one or more wholly-owned subsidiaries real estate leases and subleases described in Section 1.1(a) of the Purchaser as designated by Sellers’ Disclosure Memorandum (the Purchaser“Sellers Disclosure Memorandum”) (the “Leases”), free and clear of all Liens, except for Permitted Exceptions, and the Purchaser shall purchase, acquire and accept from the Asset Sellers, together with all of the assetsSellers’ right, propertiestitle and interest, rightsif any, in the building, office, warehouse or plant space, fixtures and improvements thereon and any security deposits relating to the Leases (the “Leased Real Property”) and any and all assignable warranties of third parties covering such buildings, fixtures and improvements;
(b) The Sellers’ rights in, to and under all machinery, spare parts, equipment, furniture and fixtures of the Sellers located in, on or about the Leased Real Property, and used principally in connection therewith and in connection with the Business, including, without limitation, those set forth in Section 1.1(b) of the Sellers Disclosure Memorandum (the “Equipment”), and any and all assignable warranties of third parties covering the Equipment;
(c) All rights of the Sellers in, to and under (i) the leases, licenses (including patent, know-how and trademark licenses), contracts and commitments of Sellers relating to the Business set forth in Section 1.1(c) of the Sellers Disclosure Memorandum, and further including, without limitation, commitments for additions to property, plant or equipment deliverable after the Closing Date, and all unfilled purchase orders of the Business existing as of the Closing Date (the “Contracts”) and (ii) all security deposits related to the Contracts;
(d) All of the Sellers’ inventory of work in process, samples, finished goods, raw materials and supplies located on the Leased Real Property or located elsewhere and related to the Business (the “Inventory”);
(e) All rights of the Sellers in, to and under all Intellectual Property Rights, including, without limitation, those set forth in Section 1.1(e) of the Sellers Disclosure Memorandum;
(f) Subject to Section 7.2(b) hereof, all books, records, accounting records, drawings, customer lists, files and documents (including computer tapes or disks) of the Sellers relating to the Business or the Transferred Assets that are located upon the Leased Real Property or elsewhere and are in all cases related primarily to the operations of the Business, or are necessary for the daily operations of the Business (the “Records”), but not the minute books, corporate seals, organizational documents, stock or membership interest books, consolidated financial statements and tax records or other records of the Sellers excluded under Section 1.2(d) hereof;
(g) To the extent assignable, all permits, licenses, Contracts certificates and governmental or regulatory authorizations which the Sellers have obtained for the conduct of the Business, including without limitation, those set forth in Section 1.1(g) of the Sellers Disclosure Memorandum (or portions thereof or the “Permits”);
(h) All accounts and notes receivable of the Sellers as of the Closing Date for products sold, arising out of the conduct of the Business, including without limitation, those set forth in Section 1.1(h) of the Sellers Disclosure Memorandum;
(i) All rights thereunder) of the Sellers in, to and businesses, under all of every kind and description, wherever located, whether real, personal or mixed, tangible or intangible, that are owned, leased or licensed by the Asset Sellers and Sellers’ data processing programs used in the conduct of the operation of the Acquired Business by the Asset Sellers as the same shall exist on the Closing Date, including all assets shown on the Balance Sheet of such Asset Seller and not disposed of in the ordinary course of business consistent with past practice as permitted by this Agreement, and all assets of the Acquired Business acquired by the Asset Sellers after the Balance Sheet Date and prior to the Closing as permitted by this Agreement (collectively, the "Transferred Assets"), including all right, title and interest of the Asset Sellers in, to and under:
(a) all personal property and interests therein, including machinery, equipment, dies, tooling, molds, supplies, furniture, office equipment, software, communications equipment, vehicles, storage tanks, spare and replacement parts, fuel and other tangible personal property used or held for use in the conduct of the operation of the Acquired Business, including the items listed on Schedule 1.2.1(a);
(baccounting, invoicing, auditing and data processing programs, including without limitation, those set forth in Section 1.1(i) all raw materials, work-in-process, finished goods (including those in transit), supplies, components, service and replacement parts and other inventories used or held for resale in the conduct of the operation of the Acquired Business, together with related packaging materials;
(c) subject to Section 1.2.5, all rights under Contracts that relate to the Acquired Business Sellers Disclosure Memorandum (the "Assumed Contract Rights") listed on Schedule 1.2.1(c“Computer Programs”);
(d) the owned and leased real property listed on Schedule 1.2.1(d);
(e) all accounts, drafts, notes and other receivables that relate to the Acquired Business;
(f) all rights of the Asset Sellers relating to deposits and prepaid expenses, claims for refunds (excluding Tax refunds) and rights to offset in respect thereof, in each case as of the Closing Date, including lease and rental payments, to the extent relating to the Acquired Business;
(g) all of the Asset Sellers' causes of action against third parties relating to the Transferred Assets or any Assumed Liability, including rights under manufacturers' and vendors' warranties;
(h) all Fasco Intellectual Property;
(i) all other proprietary rights and intangible property rights relating to the Acquired Business that are transferable;
(j) all transferable licenses, permits or All other governmental authorizations used in the conduct assets of the operation of the Acquired Business;
(k) all booksSellers, records, files and papers, whether in hard copy or computer formatincluding miscellaneous office supplies, used in the conduct of the operation Business and located on the Leased Real Property or elsewhere and in all cases related primarily to the operations of the Acquired Business or necessary for the daily operations of the Business;
(k) The Sellers’ goodwill, including engineering informationif any, sales and promotional literature, catalogs, manuals and data, sales and purchase correspondence, lists of present and former suppliers, lists of present and former customers, personnel and employment records and copies of any information relating to Taxes imposed on associated with the Acquired Business;
(l) all computer source codes, programs, software and data, including all machine readable code, printed listings of code, documentation and related property and information, owned by the Asset Sellers and used in the conduct All of the operation Sellers’ intangible rights with respect to claims for warranties or defects of workmanship, manufacturing or design against third parties relating to any of the Acquired BusinessTransferred Assets;
(m) All of the Sellers’ cash and cash equivalents on hand (including all insurance benefitsundeposited checks) and in banks or other financial institutions at the Closing, including rights and proceedsall xxxxx cash, arising from or relating subject to the Assumed Liabilities or any loss or damage with respect to the other Transferred Assets occurring prior to the Closing;Section 1.7 hereof; and
(n) all goodwill associated All rights which the Sellers possess to use the corporate name “Net to Net Technologies” in connection with the Acquired Business, including that arising out of or associated with any of the Fasco Intellectual Property; and
(o) the tools and dies located at Tecumseh's Paris, Tennessee facility used to produce or manufacture components, materials, supplies and other products for the Acquired Business, including the items listed on Schedule 1.2.1(o).
Appears in 1 contract
Transferred Assets. Upon the terms and subject to the conditions contained hereinof this Agreement and of the Other Documents, on the Closing Date, Tecumseh shall, or Seller shall cause to be sold, conveyed, assigned, transferred or delivered, and shall cause the Asset Sellers to, sell, conveytransfer, assign, transfer convey and deliverotherwise deliver to Purchaser, and Purchaser shall purchase from Seller, all of Seller’s right, title and interest in, to the Purchaser (or upon the Purchaser's request, to one or more wholly-owned subsidiaries and under all of the Purchaser as designated by assets of the Purchaser)DentalMate Business, other than the Excluded Assets, free and clear of any and all LiensEncumbrances wherever located and whether or not carried or reflected on the books and records of Seller (collectively, except the “Transferred Assets”), including, without limitation, the following:
(a) all software, hardware, inventory, software development, tools, supplies and other personal property constituting fixed assets and tangible personal property, in each case owned, used or held for Permitted Exceptionsuse by Seller in operating the DentalMate Business;
(b) all of Seller’s right, title and interest in and arising out of its ownership of the Transferred Assets including, without limitation, all utility deposits which are owned or held by the Seller in connection with the DentalMate Business and all rights in and to the Assumed Contracts;
(c) all rights in and to the names “DentalMate” including assumed or fictitious names, product names and logos, all rights to any and all associated logos, artwork or stylized designs, and the Purchaser shall purchaseto all trademarks, acquire service marks, whether or not registered and accept from the Asset Sellersall applications therefor, and whether under any statute or common law;
(d) all of Seller’s right, title and interest in, to and under all of the assetsfollowing irrespective of where any of the same were issued, propertiesare pending or exist: United States and foreign trademarks and other marks, trade names, and other trade rights, whether or not registered and all applications therefor, in each case, which relate to or are used or useful in connection with the DentalMate Business; licenses, Contracts and other contractual rights with respect to the foregoing and other such property and intangible rights owned, used or held for use by Seller in connection with the DentalMate Business, together with all goodwill of Seller in connection therewith;
(or portions thereof or rights thereundere) and businessesall procedures, designs, ideas, research records, inventions, records of every kind and descriptioninventions, wherever locatedtest information, technical information, marketing know-how, proprietary statistical techniques, know-how, methodologies, trade secrets, market analyses, client delivery systems, processes, formulae, whether realpatented or patentable or not and other operating systems (and all related manuals, personal or mixedbooks, tangible or intangiblefiles, that are journals, plans, design specifications, descriptions, data, art work, software, computer programs and source code data related thereto including all current and historical data bases) owned, leased used or held for use by Seller in connection with the DentalMate Business;
(f) all books, records, customer lists (past, present and future), customer information, marketing materials and information, copies of documents evidencing Intellectual Property Rights, new product development materials, creative materials, advertising and promotional materials, studies, reports, manuals and other documents, including, any confidential information which has been reduced to writing relating to Seller and the DentalMate Business;
(g) all computer hardware and computer software, used, licensed or held for use by the Asset Sellers and used Seller in the conduct of the operation of the Acquired Business by the Asset Sellers as the same shall exist on the Closing Date, including all assets shown on the Balance Sheet of such Asset Seller and not disposed of in the ordinary course of business consistent with past practice as permitted by this Agreement, and all assets of the Acquired Business acquired by the Asset Sellers after the Balance Sheet Date and prior to the Closing as permitted by this Agreement DentalMate Business;
(collectively, the "Transferred Assets"), including h) all right, title and interest of the Asset Sellers in, Seller in and to and under:
(a) all personal property and interests therein, including machinery, equipment, dies, tooling, molds, supplies, furniture, office equipment, software, communications equipment, vehicles, storage tanks, spare and replacement parts, fuel and other tangible personal property used or held for use in the conduct of the operation of the Acquired Business, including the items listed on Schedule 1.2.1(a);
(b) all raw materials, work-in-process, finished goods (including those in transit), supplies, components, service and replacement parts and other inventories used or held for resale in the conduct of the operation of the Acquired Business, together with related packaging materials;
(c) subject to Section 1.2.5, all rights under Contracts that relate to the Acquired Business (the "Assumed Contract Rights") listed on Schedule 1.2.1(c);
(d) the owned and leased real property listed on Schedule 1.2.1(d);
(e) all accounts, drafts, notes and other receivables that relate to the Acquired Business;
(f) all rights of the Asset Sellers relating to deposits and prepaid expenses, claims for refunds (excluding Tax refunds) and rights to offset in respect thereof, in each case as of the Closing Date, including lease and rental payments, to the extent relating to the Acquired Business;
(g) all of the Asset Sellers' causes of action against third parties relating to the Transferred Assets or any Assumed Liability, including rights under manufacturers' and vendors' warranties;
(h) all Fasco Intellectual PropertyContracts;
(i) all right, title and interest of Seller in and to the DentalMate Business as a going concern, including its goodwill and all other proprietary rights tangible and intangible property rights relating to the Acquired Business that are transferableassets associated therewith;
(j) all transferable franchises, approvals, permits, authorizations, licenses, orders, registrations, certificates, variances, and other similar permits or other governmental authorizations used in rights obtained from any Governmental Authority relating to the conduct of DentalMate Business or to the operation of the Acquired BusinessTransferred Assets and all pending applications therefor;
(k) all books, records, files and papers, whether in hard copy present telephone numbers used or computer format, used held for use by Seller in the conduct of the operation of the Acquired DentalMate Business, including engineering information, sales and promotional literature, catalogs, manuals and data, sales and purchase correspondence, lists of present and former suppliers, lists of present and former customers, personnel and employment records and copies of any information relating to Taxes imposed on the Acquired Business;; and
(l) any and all computer source codesother personal and intangible property, programs, software licenses and data, including all machine readable code, printed listings of code, documentation and related property and information, owned by permits useful or necessary to operate the Asset Sellers and used in the conduct of the operation of the Acquired DentalMate Business;
(m) all insurance benefits, including rights and proceeds, arising from or relating to the Assumed Liabilities or any loss or damage with respect to the other Transferred Assets occurring prior to the Closing;
(n) all goodwill associated with the Acquired Business, including that arising out of or associated with any of the Fasco Intellectual Property; and
(o) the tools and dies located at Tecumseh's Paris, Tennessee facility used to produce or manufacture components, materials, supplies and other products for the Acquired Business, including the items listed on Schedule 1.2.1(o).
Appears in 1 contract
Transferred Assets. Upon the terms and subject to the conditions contained herein, on the Closing Date, Tecumseh shall, or shall cause to be sold, conveyed, assigned, transferred or delivered, and shall cause the Asset Sellers to, sell, convey, assign, transfer and deliver, to the Purchaser (or upon the Purchaser's ’s request, to one or more wholly-owned subsidiaries of the Purchaser as designated by the Purchaser), free and clear of all Liens, except for Permitted Exceptions, and the Purchaser shall purchase, acquire and accept from the Asset Sellers, all of the assets, properties, rights, licenses, Contracts (or portions thereof or rights thereunder) and businesses, of every kind and description, wherever located, whether real, personal or mixed, tangible or intangible, that are owned, leased or licensed by the Asset Sellers and used in the conduct of the operation of the Acquired Business by the Asset Sellers as the same shall exist on the Closing Date, including all assets shown on the Balance Sheet of such Asset Seller and not disposed of in the ordinary course of business consistent with past practice as permitted by this Agreement, and all assets of the Acquired Business acquired by the Asset Sellers after the Balance Sheet Date and prior to the Closing as permitted by this Agreement (collectively, the "“Transferred Assets"”), including all right, title and interest of the Asset Sellers in, to and under:
(a) all personal property and interests therein, including machinery, equipment, dies, tooling, molds, supplies, furniture, office equipment, software, communications equipment, vehicles, storage tanks, spare and replacement parts, fuel and other tangible personal property used or held for use in the conduct of the operation of the Acquired Business, including the items listed on Schedule 1.2.1(a);
(b) all raw materials, work-in-process, finished goods (including those in transit), supplies, components, service and replacement parts and other inventories used or held for resale in the conduct of the operation of the Acquired Business, together with related packaging materials;
(c) subject to Section 1.2.5, all rights under Contracts that relate to the Acquired Business (the "“Assumed Contract Rights"”) listed on Schedule 1.2.1(c);
(d) the owned and leased real property listed on Schedule 1.2.1(d);
(e) all accounts, drafts, notes and other receivables that relate to the Acquired Business;
(f) all rights of the Asset Sellers relating to deposits and prepaid expenses, claims for refunds (excluding Tax refunds) and rights to offset in respect thereof, in each case as of the Closing Date, including lease and rental payments, to the extent relating to the Acquired Business;
(g) all of the Asset Sellers' ’ causes of action against third parties relating to the Transferred Assets or any Assumed Liability, including rights under manufacturers' ’ and vendors' ’ warranties;
(h) all Fasco Intellectual Property;
(i) all other proprietary rights and intangible property rights relating to the Acquired Business that are transferable;
(j) all transferable licenses, permits or other governmental authorizations used in the conduct of the operation of the Acquired Business;
(k) all books, records, files and papers, whether in hard copy or computer format, used in the conduct of the operation of the Acquired Business, including engineering information, sales and promotional literature, catalogs, manuals and data, sales and purchase correspondence, lists of present and former suppliers, lists of present and former customers, personnel and employment records and copies of any information relating to Taxes imposed on the Acquired Business;
(l) all computer source codes, programs, software and data, including all machine readable code, printed listings of code, documentation and related property and information, owned by the Asset Sellers and used in the conduct of the operation of the Acquired Business;
(m) all insurance benefits, including rights and proceeds, arising from or relating to the Assumed Liabilities or any loss or damage with respect to the other Transferred Assets occurring prior to the Closing;
(n) all goodwill associated with the Acquired Business, including that arising out of or associated with any of the Fasco Intellectual Property; and
(o) the tools and dies located at Tecumseh's ’s Paris, Tennessee facility used to produce or manufacture components, materials, supplies and other products for the Acquired Business, including the items listed on Schedule 1.2.1(o).
Appears in 1 contract
Transferred Assets. Upon At the terms and subject to Closing, for the conditions contained hereinconsideration hereinafter provided, on the Closing DateSeller shall sell, Tecumseh shall, or shall cause to be sold, conveyed, assigned, transferred or delivered, and shall cause the Asset Sellers to, selltransfer, convey, assign, transfer assign and deliver, deliver to the Purchaser (or upon the Purchaser's request, to one or more wholly-owned subsidiaries of the Purchaser as designated by the Purchaser), free and clear of all Liens, except for Permitted ExceptionsBuyer, and the Purchaser Buyer shall purchase, acquire purchase and accept from the Asset SellersSeller, all of the assetsassets and businesses which are used in, propertiesor necessary for, rights, licenses, Contracts (or portions thereof or rights thereunder) and businesses, of every kind and description, wherever located, whether real, personal or mixed, tangible or intangible, that are owned, leased or licensed by the Asset Sellers and used in the conduct of the operation of the Acquired Hospital Business by the Asset Sellers as the same shall exist on the Closing Date, including all assets shown on the Balance Sheet of such Asset Seller and not disposed of in the ordinary course of business consistent with past practice as permitted by this Agreement, and all assets of the Acquired Business acquired by the Asset Sellers after the Balance Sheet Date and prior to the Closing as permitted by this Agreement (collectively, the "Transferred Assets"), including all rightincluding, title and interest without limiting the generality of the Asset Sellers inforegoing, to and underthe following assets, but excluding all Retained Assets:
(a) The real property upon which the Hospital is situated, other than the real property referred to in Paragraph 1.2(b), together with all personal improvements, construction work-in-progress, buildings and other improvements thereon, and any and all of Seller's rights, privileges and easements appurtenant thereto (the "Real Property"), all of which real property is more specifically identified on Schedule 1.1(a).
(b) The leasehold estates of Seller, as landlord or tenant, and interests thereinthe related lease and sublease agreements (collectively, including machinerythe "Real Property Leases") with respect to the Real Property Leases, equipment, dies, tooling, molds, supplies, furniture, office equipment, software, communications equipment, vehicles, storage tanks, spare and replacement parts, fuel which are identified on Schedule 1.1(b).
(c) All equipment and other tangible personal property used (other than cash and items of tangible personal property that are consumed, disposed of or held for use sale or are inventoried in the conduct ordinary course of the operation of the Acquired Business, including the items listed on Schedule 1.2.1(a);
(bbusiness) all raw materials, work-in-process, finished goods (including those in transit), supplies, components, service and replacement parts and other inventories used or held for resale in the conduct of the operation of the Acquired Business, together with related packaging materials;
(c) subject to Section 1.2.5, all rights under Contracts that relate to the Acquired Hospital Business owned by Seller (the "Assumed Contract RightsPersonal Property") listed ), including without limitation all equipment, furnishings, fixtures, machinery, office furnishings, vehicles, instruments, leasehold improvements, and spare parts, which Personal Property as of February, 1998, is more specifically described on Schedule 1.2.1(c);1.1(c) provided to Buyer.
(d) All inventories of supplies, drugs, food, janitorial and office supplies, maintenance and shop supplies and other disposables (the owned and leased real property listed on Schedule 1.2.1(d"Inventory") related to the Hospital Business which are existing as of the Closing Date (the "Purchased Inventory");.
(e) All of Seller's right, title, and interest in, to and under all accountswritten contracts, draftsagreements, notes obligations, commitments or covenants (other than the Real Property Leases and other receivables that relate those contracts directly relating to the Acquired Business;
(fRetained Assets or Excluded Liabilities) all rights of related to the Asset Sellers relating to deposits and prepaid expenses, claims for refunds (excluding Tax refunds) and rights to offset Hospital Business in respect thereof, in each case force as of the Closing Date, including lease and rental payments, to the extent relating to the Acquired Business;
(g) all of the Asset Sellers' causes of action against third parties relating to the Transferred Assets or any Assumed Liability, including rights under manufacturers' and vendors' warranties;
(h) all Fasco Intellectual Property;
Date (i) all other proprietary rights and intangible property rights relating to the Acquired Business that are transferable;
(j) all transferable licenses, permits or other governmental authorizations used in the conduct of the operation of the Acquired Business;
(k) all books, records, files and papers, whether in hard copy or computer format, used in the conduct of the operation of the Acquired Business, including engineering information, sales and promotional literature, catalogs, manuals and data, sales and purchase correspondence, lists of present and former suppliers, lists of present and former customers, personnel and employment records and copies of any information relating to Taxes imposed on the Acquired Business;
(l) all computer source codes, programs, software and data, including all machine readable code, printed listings of code, documentation and related property and information, owned by the Asset Sellers and used in the conduct of the operation of the Acquired Business;
(m) all insurance benefits, including rights and proceeds, arising from or relating to the Assumed Liabilities or any loss or damage with respect to the other Transferred Assets occurring prior to the Closing;
(n) all goodwill associated with the Acquired Business, including that arising out of or associated with any of the Fasco Intellectual Property; and
(o) the tools and dies located at Tecumseh's Paris, Tennessee facility used to produce or manufacture components, materials, supplies and other products for the Acquired Business, including the items listed set forth on Schedule 1.2.1(o1.1(e)., (ii) that are not included on Schedule 1.1
Appears in 1 contract
Transferred Assets. Upon On the terms and subject to the conditions contained hereinset forth in this Agreement, on at the Closing DateClosing, Tecumseh shallthe Sellers shall sell, convey, assign, transfer and deliver, or shall cause to be sold, conveyed, assigned, transferred or delivered, and shall cause the Asset Sellers to, sell, convey, assign, transfer and deliver, to the Purchaser (or upon the Purchaser's request, to one or more wholly-owned subsidiaries of the Purchaser as designated by the Purchaser), free and clear of all Liens, except for Permitted ExceptionsBuyer, and the Purchaser Buyer shall purchase, acquire and accept from the Asset Sellers, free and clear of all Liens except for Permitted Liens, all of the assetsSellers’ right, propertiestitle and interest in, rights, licenses, Contracts (or portions thereof or rights thereunder) to and businesses, of every kind under the assets and description, wherever located, whether real, personal or mixed, tangible or intangible, that are owned, leased or licensed by the Asset Sellers and used in the conduct properties of the operation of Sellers primarily related to, or primarily used or primarily held for use in connection with, the Acquired Business by Business, including the Asset Sellers following assets and properties as the same shall exist on as of the Closing Date(all of such assets and properties being sold, conveyed, assigned, transferred and delivered are referred to herein collectively as the “Transferred Assets”):
(i) the owned real property listed in Section 2.01(a)(i) of the Disclosure Schedule (the “Real Property”), together in each case with the Sellers’ right, title and interest in, to and under all structures, facilities or improvements currently or as of the Closing Date located thereon, including those structures, facilities and improvements listed in Section 2.01(a)(i) of the Disclosure Schedule, and all easements, licenses, rights and appurtenances related to the foregoing;
(ii) all finished goods, packaging materials and products for repacking operations, supplies and other inventories (including inventory located in vending equipment) primarily related to, or primarily used or primarily held for use in connection with, the Business, including those listed in Section 2.01(a)(ii) of the Disclosure Schedule;
(iii) all cold drink equipment and vending equipment primarily related to, or primarily used or primarily held for use in connection with, the Business, which equipment shall include all Transferred Fountain Equipment (collectively, the “Subject Equipment”), including the equipment described on Section 2.01(a)(iii) of the Disclosure Schedule;
(iv) all personal property owned by the Sellers and their interests therein primarily related to, or primarily used or primarily held for use in connection with, the Business, including the machinery, equipment (other than the Subject Equipment), furniture, furnishings, office equipment, communications equipment, forklifts, motorized vehicles, warehousing vehicles, trailers, spare and replacement parts, fuel, pre-mix and post-mix equipment and coolers, special event trailers, tools, beverage display and end aisle racks and advertising signs (illuminated and nonilluminated), point of sale materials and other tangible personal property (the “Tangible Personal Property”), including (A) those motorized vehicles, trailers, forklifts and warehousing vehicles listed on Section 2.01(a)(iv)-1 of the Disclosure Schedule and (B) those other items of personal property listed in Section 2.01(a)(iv)-2 of the Disclosure Schedule;
(v) subject to Section 2.02 and other than any Excluded Contracts, and except for any and all rights under any bottling, manufacturing, distribution, sales or other related contract or agreement for any TCCC brands and any of the goodwill and other intangible rights or assets shown associated therewith, all rights under (A) the Material Contracts set forth on Section 3.12(a) of the Balance Sheet of such Asset Seller Disclosure Schedule, (B) those contracts and not disposed of agreements primarily entered into in connection with the Business in the ordinary course of business consistent with past practice as permitted by this Agreement, and all assets that are not Material Contracts required to be disclosed on Section 3.12(a) of the Acquired Business acquired by Disclosure Schedule or that are entered into between the Asset Sellers after date hereof and the Balance Sheet Closing Date in accordance with Section 5.01 that would not be required to be so disclosed on Section 3.12(a) of the Disclosure Schedule had such contracts or agreements been in existence as of the date hereof, (C) those contracts and agreements listed in Section 2.01(a)(v) of the Disclosure Schedule, (D) any contract or agreement entered into between the date hereof and the Closing Date in accordance with Section 5.01 which, had such contract or agreement been entered into prior to the date hereof, would have been a Material Contract required to be set forth on Section 3.12(a) of the Disclosure Schedule (each, a “Pre-Closing as permitted by this Agreement Material Contract”) and (E) any Shared Contract, to the extent assigned to the Buyer pursuant to a Partial Assignment and Release under Section 5.17 (collectively, the "Transferred Assets"“Assumed Contracts”), including all right, title and interest of the Asset Sellers in, to and under:;
(avi) subject to Section 2.02 and to the extent transferable, all personal property Material Permits, Environmental Permits and interests thereinall other licenses, including machinery, equipment, dies, tooling, molds, supplies, furniture, office equipment, software, communications equipment, vehicles, storage tanks, spare and replacement parts, fuel permits and other tangible personal property governmental authorizations primarily related to, or primarily used or primarily held for use in connection with, the conduct of the operation of the Acquired Business, including those listed in Section 2.01(a)(vi) of the items listed on Schedule 1.2.1(a)Disclosure Schedule;
(b) all raw materials, work-in-process, finished goods (including those in transit), supplies, components, service and replacement parts and other inventories used or held for resale in the conduct of the operation of the Acquired Business, together with related packaging materials;
(c) subject to Section 1.2.5, all rights under Contracts that relate to the Acquired Business (the "Assumed Contract Rights") listed on Schedule 1.2.1(c);
(dvii) the owned and leased real property listed on Schedule 1.2.1(d);
(e) all accounts, drafts, notes and other receivables that relate to the Acquired Business;
(f) all rights of the Asset Sellers relating to deposits and prepaid expenses, claims for refunds (excluding Tax refunds) and rights to offset in respect thereof, in each case as of the Closing Date, including lease and rental payments, to the extent relating to the Acquired Business;
(g) all of the Asset Sellers' causes of action against third parties relating to the Transferred Assets or any Assumed Liability, including rights under manufacturers' and vendors' warranties;
(h) all Fasco Intellectual Property;
(i) all other proprietary rights and intangible property rights relating to the Acquired Business that are transferable;
(j) all transferable licenses, permits or other governmental authorizations used in the conduct of the operation of the Acquired Business;
(k) all original books, records, files and papers, whether in hard copy or computer format, used in the conduct of the operation of the Acquired Business, including engineering information, sales and promotional literature, catalogs, manuals and data, sales and purchase correspondence, lists of present quality control records and former suppliersprocedures, lists of present customers, customer records and, as and former customersto the extent provided in the Employee Matters Agreement, personnel and employment records and records, in each case, related to, or primarily used or primarily held for use in connection with, the Business, including those listed in Section 2.01(a)(vii) of the Disclosure Schedule, provided that the Sellers shall retain copies of any information relating each of the foregoing, and provided, further, that if the Sellers are required by Law to Taxes imposed on retain the Acquired Businessoriginals of such books, records, files and papers, they may do so and in such case they will provide the Buyer with copies thereof;
(lviii) all computer source codesthe deposits, programsadvances, software lease and datarental expenses, including all machine readable codepre-paid expenses, printed listings of codedeferred charges, documentation accrued rebates and related property credits and information, owned by similar items set forth on the Asset Sellers Final Amounts Schedule and used which are not included in the conduct of the operation of the Acquired BusinessRetained Assets;
(mix) the licensed Intellectual Property listed in Section 2.01(a)(ix) of the Disclosure Schedule (collectively, the “Transferred Licensed Intellectual Property”), which Transferred Licensed Intellectual Property, for purposes of clarity, shall not include any ownership or other proprietary interest in any Intellectual Property of the Sellers or their Affiliates (including TCCC) not specifically set forth on Section 2.01(a)(ix) of the Disclosure Schedule or any goodwill or other intangible rights or assets relating to or associated with the Intellectual Property of the Sellers or their Affiliates (including TCCC);
(x) the exclusive right for the Buyer to hold itself out as the purchaser of the Business (subject to the limitations set forth in Section 5.12 and Section 10.03), provided that such rights shall not be deemed to include any Intellectual Property (other than the Transferred Licensed Intellectual Property) of the Sellers or their Affiliates (including TCCC);
(xi) all casualty insurance benefits, including rights and proceedsif any, arising from or to the extent relating to the Assumed Liabilities or any loss or damage events occurring with respect to the other Transferred Assets occurring prior to the Closing;
(nxii) all goodwill associated with of the Acquired Sellers’ rights under warranties, indemnities and all similar rights against third parties to the extent related to any Transferred Assets;
(xiii) subject to Section 2.01(b)(vi), all Tax Returns related solely to the Business or the Transferred Assets;
(xiv) all rights to causes of action, lawsuits, judgments, claims and demands of any nature available to or being pursued by the Sellers, whether arising by way of claim, counterclaim or otherwise, in each case, primarily related to the Business, including that arising out of the Transferred Assets or associated with any the Assumed Liabilities;
(xv) all xxxxx cash used in the Business, as identified on the relevant balance sheet;
(xvi) those assets of the Fasco Intellectual PropertyBusiness included within Net Working Capital or Other Assets and Liabilities which are reflected as assets on the Final Amounts Schedule and which are not Retained Assets, but only to the extent of the amounts so included; and
(oxvii) the tools and dies located at Tecumseh's Paris, Tennessee facility used to produce or manufacture components, materials, supplies rights and other products for assets listed in Section 2.01(a)(xvii) of the Acquired Business, including the items listed on Schedule 1.2.1(o)Disclosure Schedule.
Appears in 1 contract
Transferred Assets. Upon On the terms and subject to the conditions contained hereinset forth in this Agreement, on at the Closing DateClosing, Tecumseh GE shall, and shall cause the other Asset Sellers to, sell, convey, assign, transfer and deliver, or shall cause to be sold, conveyed, assigned, transferred or delivered, and shall cause the Asset Sellers to, sell, convey, assign, transfer and deliver, to the Purchaser Acquiror (or upon the Purchaser's Acquiror’s request, to one or more wholly-owned subsidiaries of the Purchaser Acquiror as designated by the PurchaserAcquiror), free and clear of all Liens, except for Permitted ExceptionsLiens, and the Purchaser Acquiror shall purchase, acquire and accept from GE and the other Asset Sellers, all of the assets, properties, rights, licenses, Contracts (or portions thereof or rights thereunder) and businesses, of every kind and description, wherever located, whether real, personal or mixed, tangible or intangible, that are owned, leased or licensed by the Asset Sellers and used primarily in the conduct of the operation of the Acquired Business by the Asset Sellers as the same shall exist on the Closing Date, including all assets shown on the Balance Sheet Reference Statement of such Asset Seller Net Current Assets and not disposed of in the ordinary course of business consistent with past practice as permitted by this Agreement, and all assets of the Acquired Business acquired by the Asset Sellers after the Balance Sheet Date date of the Reference Statement of Net Current Assets and prior to the Closing as permitted by this Agreement (collectively, the "“Transferred Assets"”), including all right, title and interest of the Asset Sellers in, to and under:
(ai) all personal property and interests therein, including machinery, equipment, dies, tooling, moldstools, supplies, furniture, office equipment, software, communications equipment, vehicles, storage tanks, spare and replacement parts, fuel and other tangible personal property used or held for use primarily in the conduct of the operation of the Acquired Business, including the items listed on Schedule 1.2.1(a)in Section 2.02(a)(i) of the Disclosure Schedule;
(bii) all raw materials, work-in-process, finished goods (including those in transit), supplies, components, service and replacement parts and other inventories used or held for resale in the conduct of the operation of the Acquired Business, together with related packaging materialsmaterials (collectively, “Inventory”);
(ciii) subject to Section 1.2.52.03, all rights under Contracts that relate to the Acquired Business (the "“Assumed Contract Rights"”) under Contracts listed on Schedule 1.2.1(c)in Section 2.02(a)(iii) of the Disclosure Schedule;
(div) the owned and leased real property listed on Schedule 1.2.1(d)in Section 2.02(a)(iv) of the Disclosure Schedule;
(ev) all accounts, drafts, notes and other receivables that relate to the Acquired Business;
(fvi) all rights of expenses that have been prepaid by the Asset Sellers relating to deposits and prepaid expenses, claims for refunds (excluding Tax refunds) and rights to offset in respect thereof, in each case as of the Closing Date, including lease and rental payments, to the extent relating to the Acquired Business, including ad valorem Taxes and lease and rental payments;
(gvii) all of the Asset Sellers' ’ causes of action against third parties relating to the Transferred Assets or any Assumed Liability, including rights under manufacturers' ’ and vendors' ’ warranties;
(hviii) all Fasco Intellectual PropertyBusiness Patents and Business Trademarks owned by the Asset Sellers;
(i) all other proprietary rights and intangible property rights relating to the Acquired Business that are transferable;
(jix) all transferable licenses, permits or other governmental authorizations used in the conduct of the operation of the Acquired Business by the Business Subsidiaries and all other transferable licenses, permits or other governmental authorizations used primarily in the conduct of the operation of the Business;
(kx) to the extent they relate to the Business, all books, records, files and papers, whether in hard copy or computer format, used primarily in the conduct of the operation of the Acquired Business, including engineering information, sales and promotional literature, catalogs, manuals and data, sales and purchase correspondence, lists of present and former suppliers, lists of present and former customers, personnel and employment records and copies of any information relating to Taxes imposed on the Acquired Business, and to the extent not prohibited by applicable law, personnel and employment records;
(lxi) except as set forth in Section 2.02(b)(xi) of the Disclosure Schedule, all computer programs, source codes, programscode, software and data, including all machine readable code, printed listings of code, documentation and related property and information, owned by the Asset Sellers and used in the conduct of the operation of the Acquired Business;; and
(m) all insurance benefits, including rights and proceeds, arising from or relating to the Assumed Liabilities or any loss or damage with respect to the other Transferred Assets occurring prior to the Closing;
(nxii) all goodwill associated with the Acquired Business, including that arising out of or associated with any of the Fasco Intellectual Property; and
(o) the tools and dies located at Tecumseh's Paris, Tennessee facility used to produce or manufacture components, materials, supplies and other products for the Acquired Business, including the items listed on Schedule 1.2.1(o).
Appears in 1 contract
