XXXX OF SALE
AND ASSUMPTION OF LIABILITIES AGREEMENT
Reference is made to the Exchange Agreement, dated as of April 18, 2002 (the
"Exchange Agreement"), among Saratoga Holdings I, Inc., a Texas corporation
("Seller"), SH2, Inc., a Delaware corporation ("Buyer"), Agence 21, Inc., a
Delaware corporation, A21 Acquisition LLC, a Delaware limited liability company
("A21 Acquisition"), and the Sellers (as defined in the Exchange Agreement)
Capitalized terms used herein without definition shall have the meaning assigned
to them in the Exchange Agreement.
A. Transfer of Assets and Business. For good and sufficient consideration,
receipt of which is hereby acknowledged Seller, has SOLD, ASSIGNED, and
TRANSFERRED and by these presents does hereby SELL, ASSIGN, TRANSFER, and
DELIVER to Buyer, its successors and assigns ("Buyer"), effective as of April
25, 2002, all Seller's right, title, and interest in and to each and all of the
assets, properties, and business of Seller of every kind and description and
wherever situated as they existed on April 25, 2002, except as expressly stated
otherwise herein or in the Exchange Agreement (collectively, the "Assets and
Business"); provided, that no assets, properties or business of Seller acquired
or received after April 25, 2002 are being sold, assigned or transferred
hereunder, including, without limitation, Seller's 100% ownership interest in
X00 Xxxxxxxxxxx.
Without limiting the generality of the foregoing, the Assets and Business
include:
(a) All of Seller's goodwill and business as a going
concern, including the name "Saratoga" or any variation thereof.
(b) All of Seller's accounts receivable, miscellaneous
accounts receivable, and notes receivable or other rights to receive
payments, whether arising out of the manufacture, sale, distribution,
or use of its products, technology, services, or otherwise.
(c) All of Seller's inventories of finished goods,
work-in-process, raw materials, and other miscellaneous supplies and
materials.
(d) All of Seller's prepaid expenses (excluding those, if
any, pertaining to taxes, to pension or other benefits plans, or to
insurance policies that are listed on the Schedule of Excluded Assets
and will not be acquired by Buyer pursuant to this Agreement).
(e) All interests of Seller in real property including
land, buildings, structures, improvements, fixtures, leaseholds, and
leasehold improvements.
(f) All machinery, equipment, tools, molds, motor
vehicles, transportation, packing and delivery equipment, and supplies,
furniture, and fixtures of every kind and description owned by Seller
or ordered by it on or before the Closing Date.
(g) All of Seller's right, title, and interest of every
kind and description in and to the following assets:
(i) All of Seller's rights to or under all
trademarks, service marks, certification marks, United States and
foreign trademark registrations and applications, trade names,
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copyrights, United States and foreign patents and patent applications,
if any, including international priority rights associated therewith,
and all patent and other license, trade secrets, inventions, and
royalties and rights to xxx for past infringements, including, without
limitation, those items listed or otherwise described on the Schedules
attached to the Agreement.
(ii) All of Seller's customer lists, uncollected
invoices, credit files, payroll records, schedules of fixed assets,
books of account, contracts, sales representation agreements and sales
agency agreements (if any), files, papers, books, records, designs,
drawings, specifications and engineering data, and all other public or
confidential business records, all to the extent reasonably required
for the orderly continuation of the business operations of Seller
(excluding minute books, stock books and tax returns, and
communications in respect thereof, of Seller).
(h) Except as otherwise specified on the Schedules to the
Exchange Agreement, all of Seller's causes of action, judgments, claims
and demands of whatever nature, memberships, agencies and permits,
claims for refunds, and rights of offset and credits, all to the extent
that they are assignable by Seller.
(i) All of Seller's rights under employment contracts,
restrictive covenants, nondisclosure agreements, and similar
obligations of present and former officers and employees of Seller.
Seller hereby authorizes Buyer to take any appropriate action in connection with
any of these rights, claims, causes of action, and property, in the name of
Seller or in its own or any other name, but at Buyer's own expense.
TO HAVE AND TO HOLD these rights, claims, causes of action, property, assets,
business, and goodwill, as a going concern unto Buyer, its successors and
assigns, to and for its or their use forever.
And Seller, subject to the terms of the Agreement, does hereby agree that it
will take commercially reasonable steps necessary to put Buyer, its successors
or assigns, in actual possession and operating control of the "Assets and
Business"; provided, however, that Buyer shall advance funds to Seller for any
costs or expenses incurred in connection with such actions by Seller.
B. Assumption of Liabilities. Anything in this Xxxx of Sale and Assumption
of Liabilities Agreement to the contrary notwithstanding, Buyer hereby assumes
any and all Liabilities of Seller arising on or prior to April 30, 2002 (the
"Assumed Liabilities"), other than the Permitted Liabilities referred to in the
Exchange Agreement which Permitted Liabilities shall be retained by Seller and
other than obligations of Seller to perform certain actions pursuant to the
Exchange Agreement. As used herein "Liabilities" means all debts, liabilities,
and obligations of any kind, nature or description whatsoever, whether voluntary
or involuntary, and whether accrued or fixed, absolute or contingent, matured or
unmatured, known or unknown, liquidated or unliquidated, secured or unsecured,
determined or determinable, including, without limitation, all debts,
liabilities, and obligations based upon, resulting from, arising out of or
relating to any law, action or order or any contract, document or instrument.
C. Right to Rely. Any individual, partnership, corporation, or other
entity may rely without further inquiry upon the powers and rights herein
granted to the Buyer and upon any notarization, certification, verification,
affidavit, or jurat by any notary public of any state relating to the
authorization, execution, and delivery of this Xxxx of Sale and Assumption of
Liabilities Agreement or to the authenticity of any copy, conformed or
otherwise, hereof.
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D. Miscellaneous. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Delaware (without giving effect to
conflicts of law principles thereunder). If any provision of this Agreement
shall be invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other jurisdiction.
This Agreement and the Exchange Agreement supersede all other prior oral or
written agreements between Xxxxx and the Company, and their respective
affiliates and persons acting on their behalf with respect to the sale of the
Assets and Business and assumption of Liabilities, this Agreement and the
matters covered hereby and by the Exchange Agreement. No provision of this
Agreement may be waived or amended other than by an instrument in writing signed
by the party to be charged with enforcement. Any notice, consent, waiver, or
other communication required or permitted to be given under the terms of this
Agreement shall be given as provided in the Exchange Agreement. This Agreement
shall be binding upon and inure to the benefit of the parties and their
respective successors and assigns. Neither party hereto shall assign this
Agreement or any rights or obligations hereunder without the prior written
consent of the other party. This Agreement is intended for the benefit of the
parties hereto and their respective permitted successors and assigns, and is not
for the benefit of, nor may any provision hereof be enforced by, any other
person.
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IN WITNESS WHEREOF, Seller has caused this Xxxx of Sale and Assumption of
Liabilities Agreement to be signed by its President and Secretary and its
corporate seal to be affixed hereto on the date first written above.
SARATOGA HOLDINGS I, INC.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
President
ATTEST:
By: /s/ XXXXXX X. XXXXX
-----------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
XXXXX XX XXX XXXX
XXXXXX XX XXX XXXX
Xx the day of April 30, 2002 before me personally came Xxxxxx X. Xxxxx
to me known, who being by me duly sworn, did depose and say that he is the
Chairman of Saratoga Holdings I, Inc., a Texas corporation; and that he executed
the foregoing instrument on behalf of such corporation.
Notary Public in and for
The State of New York
Name: /s/ XXXXX XXXXXXXXXX
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My Commission Expires: December 28, 2005
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